Crew Alert End User License Agreement

End User License Agreement (“EULA”)

Effective August 7, 2017

PLEASE READ THIS EULA CAREFULLY. IT CONSTITUTES A BINDING AGREEMENT BETWEEN YOU (“LICENSEE” OR “YOU”) AND JEPPESEN SANDERSON, INC. (“JEPPESEN”) FOR THE USE OF THIS APPLICATION (THIS “APPLICATION”). BY CLICKING THE “I ACCEPT” or “AGREE” (as applicable) BUTTON OR USING THIS APPLICATION, YOU AGREE TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS CONTAINED IN THIS EULA.

JEPPESEN RESERVES THE RIGHT TO CHANGE OR MODIFY ANY OF THE TERMS AND CONDITIONS OF THIS EULA AT ANY TIME BY POSTING THE CHANGES IN THIS APPLICATION. THE MOST CURRENT VERSION OF THE TERMS AND CONDITIONS CAN BE REVIEWED BY GOING TO THE “SETTINGS” ICON THEN TO THE APPLICATION ICON, THEN TO “TERMS AND CONDITIONS”. YOU SHOULD VISIT THIS LOCATION EVERY TIME YOU USE THIS APPLICATION TO REVIEW THE TERMS AND CONDITIONS. ANY CHANGES OR MODIFICATIONS TO THE TERMS AND CONDITIONS WILL BE EFFECTIVE ON THE DATE THE CHANGE OR MODIFICATION IS MADE. YOUR USE OF THIS APPLICATION FOLLOWING THE DATE OF ANY CHANGES OR MODIFICATIONS WILL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS AS REVISED.   IF YOU DO NOT AGREE TO THE REVISED TERMS AND CONDITIONS, THEN YOU MUST STOP USING THIS APPLICATION.

1.     OWNERSHIP. This Application contains the valuable proprietary content of Jeppesen and its licensors and is protected by copyright and other intellectual property laws and treaties. Jeppesen and its licensors retain all right, title and interest in the copyrights, patents, trade secrets, trademarks and other intellectual property rights pertaining to this Application. This Application is licensed, not sold to You, and You agree not to use this Application except in its intended manner in accordance with the terms of this EULA.

2.     LICENSE USE AND RESTRICTIONS ON USE. For each license, You may install this Application on one mobile computing device. The Software may be used strictly for informational purposes and for no other purpose whatsoever. You will not: (a) copy, reproduce, or publish this Application; (b) distribute copies of this Application or accompanying materials to others; (c) modify, adapt, translate, reverse engineer, or decompile this Application or create derivative works based on this Application; (d) modify, adapt, translate, or create derivative works based on the printed, electronic, or written materials; (e) assign, rent, lend, or sublease this Application; (f) sell or transfer this Application; or (g) use this Application on any mobile device with an operating system that has been “rooted” or “jailbroken”; which means the operating system installed on the device by the manufacturer or carrier has been modified by a party other than the manufacturer or carrier.

3.     WARNINGS AND NOTICES.

A.    THIS APPLICATION MAY NOT BE USED WHERE SUCH USE MIGHT INTERFERE WITH THE SAFE OPERATION OF THE AIRCRAFT OR IS PROHIBITED BY APPLICABLE LAW.

B.    THE SELECTION, PURCHASE, MAINTENANCE AND USE OF THE HARDWARE AND THIRD PARTY SOFTWARE ON WHICH THIS APPLICATION IS BEING INSTALLED AND HARDWARE AND THIRD PARTY SOFTWARE WITH WHICH THIS APPLICATION MAY BE USED IS SOLELY YOUR RESPONSIBILITY AND JEPPESEN HEREBY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY RELATED TO SUCH HARDWARE AND THIRD PARTY SOFTWARE. YOU REPRESENT AND WARRANT THAT YOU ARE FAMILIAR WITH AND THAT YOU WILL COMPLY WITH THE SEPARATE TERMS AND CONDITIONS YOU AGREED TO WITH THE MANUFACTURER OF SUCH HARDWARE AND THIRD PARTY SOFTWARE.

C.    THE SOFTWARE CONTAINS SEVERAL FUNCTIONS FOR PREDICTING AND ASSESSING ALERTNESS AND HAS BEEN DEVELOPED FOR USE WITH PERSONAL ELECTRONIC DEVICES. AS WITH THE USE OF ANY PERSONAL ELECTRONIC DEVICE, APPLICABLE LAWS AND REGULATIONS SHOULD BE FOLLOWED, AND UNDER NO CIRCUMSTANCES SHOULD THE SOFTWARE BE USED WHILE PILOTS ARE FLYING OR PERFORMING FLIGHT-CRITICAL TASKS.

D.    THE SOFTWARE CONTAINS A BIOMATHEMATICAL MODEL OF ALERTNESS BASED ON PUBLISHED SCIENTIFIC LITERATURE, DATA COLLECTED BY JEPPESEN OR ITS PARENT COMPANY, THE BOEING COMPANY, AND DATA PROVIDED BY OTHER THIRD PARTIES. THE SOFTWARE IS INTENDED AS AN AID IN PREDICTING ALERTNESS FOR AN “AVERAGE” INDIVIDUAL, UNDER TYPICAL CONDITIONS. INDIVIDUAL DIFFERENCES, ENVIRONMENTAL FACTORS, AND OTHER FACTORS NOT CONSIDERED BY THE SOFTWARE AFFECT ACTUAL ALERTNESS. UNDER NO CIRCUMSTANCES SHOULD THE SOFTWARE BE USED AS A “GO/NO-GO” DECISION GUIDE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING YOUR FITNESS FOR DUTY.  THE SOFTWARE IS NOT INTENDED TO DIAGNOSE OR TREAT ANY ILLNESS, DISEASE, OR HEALTH ISSUE.

E.    THE KAROLINSKA SLEEPINESS SCALE (KSS) AND OTHER SUBJECTIVE AND OBJECTIVE MEASURES OF ALERTNESS, PERFORMANCE, AND ACTUAL SLEEP MAY BE INCLUDED IN THE SOFTWARE. UNLESS OTHERWISE STATED, THIS INFORMATION IS RESIDENT ONLY ON YOUR DEVICE, HOWEVER, JEPPESEN AND/OR BOEING FROM TIME TO TIME MAY WISH TO COLLECT THIS DATA FOR USE IN TUNING AND IMPROVING THE SOFTWARE. YOU WILL BE NOTIFIED PRIOR TO ANY DATA COLLECTION AND MAY OPT OUT OF DATA COLLECTION AT ANY TIME. ADDITIONAL TERMS AND CONDITIONS MAY APPLY.

F.     THE SOFTWARE ALLOWS YOU TO MANUALLY ENTER SCHEDULE DATA AND MAY OFFER THE ABILITY TO DOWNLOAD SCHEDULE DATA FROM REMOTE SOURCES. JEPPESEN MAKES NO WARRANTY ON THE ACCURACY OF MANUALLY OR REMOTELY ENTERED DATA, AND DISCLAIMS ALL RESPONSIBILITY FOR THE LOSS, DELETION, OR CORRUPTION OF SUCH DATA.

G.    THE HARDWARE MAY MAKE CERTAIN INFORMATION AVAILABLE RELATING TO THE LOCATION OF THE HARDWARE (“LOCATION DATA”). SUCH LOCATION DATA IS NOT A PART OF THE APPLICATION OR PROVIDED BY JEPPESEN. IF CUSTOMER UTILIZES THE LOCATION DATA IN CONJUNCTION WITH THE APPLICATION THE LOCATION DATA MAY NOT BE RELIED UPON IN SITUATIONS WHERE PRECISE LOCATION INFORMATION IS NEEDED OR WHERE ERRONEOUS, INACCURATE, TIME-DELAYED OR INCOMPLETE LOCATION DATA COULD LEAD TO DEATH, PERSONAL INJURY, PROPERTY OR ENVIRONMENTAL DAMAGE, OR VIOLATION OF ANY REGULATIONS OF A CIVIL AVIATION AUTHORITY OR ANY OTHER REGULATORY AUTHORITY. USE OF THE LOCATION DATA IS AT YOUR SOLE RISK AND JEPPESEN MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO LOCATION DATA AND DISCLAIMS ANY AND ALL LIABILITY THEREFOR, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY OR TIMELINESS OF THE LOCATION DATA OR ANY OTHER THIRD PARTY DATA DISPLAYED BY THIS APPLICATION OR SERVICES.

4.     TERMINATION. This EULA will automatically terminate if You fail to comply with any term of this EULA or any applicable law.

5.     ASSUMPTION OF RISK. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THIS APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU.

6.     NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. JEPPESEN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS APPLICATION WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THIS APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THIS APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY JEPPESEN OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.

  1.      LIMITATION OF LIABILITY.

A.    DISCLAIMER AND RELEASE. THE CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS, LIABILITIES AND WARRANTIES (IF ANY) OF JEPPESEN AND YOUR REMEDIES SET FORTH IN THIS EULA ARE EXCLUSIVE AND IN SUBSTITUTION FOR AND YOU HEREBY WAIVE, RELEASE AND RENOUNCE ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS AND LIABILITIES OF JEPPESEN AND ANY OTHER RIGHTS, CLAIMS AND REMEDIES OF YOU AGAINST JEPPESEN, EXPRESS OR IMPLIED, ARISING BY LAW, EQUITY OR OTHERWISE, WITH RESPECT TO THIS EULA, ANY INFORMATION SUPPLIED BY YOU, THE APPLICATION AND ANY NONCONFORMANCE OR DEFECT IN THE DESIGN, ADEQUACY, ACCURACY, RELIABILITY, SAFETY, OR CONFORMANCE WITH GOVERNMENT STANDARDS OR REGULATIONS OF SUCH APPLICATION INCLUDING BUT NOT LIMITED TO:

(i)    ANY IMPLIED WARRANTY AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, QUIET ENJOYMENT, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS;

(ii)   ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

(iii)  ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY ARISING IN STRICT LIABILITY OR IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF JEPPESEN; AND

(iv)  ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY OF LICENSEE, INCLUDING WITHOUT LIMITATION ANY AIRCRAFT.

B.    EXCLUSION OF SPECIFIED LOSSES AND DAMAGES. JEPPESEN WILL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER, (i) WHETHER ARISING IN LAW, EQUITY, CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF JEPPESEN), STRICT LIABILITY, OR OTHERWISE AND (ii) WHETHER SUCH LOSSES OR DAMAGES ARE DIRECT, INDIRECT OR OTHERWISE, FOR:

  1. LOSS OF USE, REVENUE, PROFIT, ANTICIPATED SAVINGS, BUSINESS VALUE, OPPORTUNITY OR GOODWILL;
  2. LOSS OR DAMAGES RESULTING FROM BUSINESS INTERRUPTION;
  3. LOSS OR DAMAGES RESULTING FROM DELAY IN PERFORMANCE AND COST OF SUBSTITUTE PROCUREMENT;
  4. LOSS OR DAMAGES RESULTING FROM REPRODUCTION OR RECOVERY OF DATA OR INFORMATION WHICH IS LOST, CORRUPTED OR DAMAGED IN ANY OTHER MANNER, WHETHER IN WHOLE OR IN PART; OR
  5. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PURE ECONOMIC LOSSES OR DAMAGES IN ANY WAY ARISING OUT OF OR RELATED TO THIS EULA.
  6. MAXIMUM LIABILITY. IN NO EVENT WILL JEPPESEN’S TOTAL LIABILITY, WHETHER IN CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF JEPPESEN), STRICT LIABILITY OR OTHERWISE, IN ANY WAY ARISING OUT OF OR RELATING TO THIS EULA, INCLUDING BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE THIS APPLICATION EXCEED THE GREATER OF (i) THE PURCHASE PRICE, IF ANY, PAID FOR THIS APPLICATION OR (ii) $100.00 USD.

Some states and jurisdictions do not allow limitations on direct, indirect, incidental, or consequential damages, so the above limitations or exclusions may not apply to You.

For purposes of this Section, the term “Jeppesen” includes Jeppesen, its parent company, their respective parents, affiliates, and the assignees of each, and their respective directors, officers, employees, and agents

If a court of competent jurisdiction determines that applicable law implies warranties and liabilities which cannot be disclaimed, excluded or limited or which can only partly be disclaimed, excluded or limited, then the limit on Jeppesen’s liability set forth in this Section will apply to the fullest extent permitted by law. If Jeppesen cannot disclaim, exclude or limit a warranty or liability implied by law, this EULA will be read and construed subject to such provisions of law.

8.     INDEMNIFICATION. You will indemnify and hold harmless Jeppesen and its licensors, contractors, subcontractors, and agents from and against all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys’ fees), incident thereto or incident to successfully establishing the right to indemnification,  for injury to or death of any person or persons, including Your employees, or for loss of or damage to any property, including without limitation any aircraft, arising out of or in any way relating to the use of or inability to use this Application provided to You under this EULA and the use of or inability to use the hardware and/or third party software on which this Application is being installed by You, whether or not arising in strict liability or tort or occasioned by the negligence of Jeppesen. Your obligations under this indemnity will survive the termination of this EULA.

For purposes of this Section, the term “Jeppesen” includes Jeppesen, its parent company, their respective parents, affiliates, and the assignees of each, and their respective directors, officers, employees, and agents.

9.     EXPORT COMPLIANCE. You are responsible for Your compliance with any applicable export control restrictions, laws and regulations as may be modified from time to time, imposed by the governments of the United States and, if applicable, other countries. You will not attempt to, or knowingly export or re-export this Application or any products using such Application covered under this EULA to any country or national thereof prohibited from obtaining such Application, either directly or indirectly.

10.  LEGAL COMPLIANCE. You represent and warrant that You are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and You are not listed on any United States Government list of prohibited or restricted parties.

11.  ENTIRE AGREEMENT. This EULA contains the entire understanding of the parties hereto relating to the subject matter hereof. No waiver or modification of any of the terms hereof will be valid unless in writing and signed by both Jeppesen and You. No waiver of any breach will be deemed a waiver of any subsequent breach. If any provision of this EULA is held to be invalid or unenforceable, the remaining provisions will not be affected.

12.  GOVERNING LAW. This EULA will be interpreted under and governed by the laws of the State of Colorado, U.S.A. without recourse to choice of law statutes or principles that would otherwise result in the application of the law of any other jurisdiction to this EULA. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA.

13.  CONFLICTING DOCUMENTS. In the event You issue a purchase order for Your request of the Software, the terms and conditions therewith are hereby rejected by Jeppesen and this EULA will govern and take precedence over all other terms and conditions contained on or referenced by such purchase order.

14.  PRIVACY. The Application may require You to enter personally identifiable information. Please refer to Jeppesen’s Privacy Policy on its website for information on how Jeppesen collects, uses and discloses personally identifiable information from its users.

15.  THIRD PARTY TERMS AND CONDITIONS

A. APPLE. When You download or use this Application on any Apple® operating system, the following additional terms apply and You agree as follows:

(i) Acknowledgement:  The parties acknowledge that this EULA is concluded solely between such parties, and not with Apple, and Jeppesen, not Apple, is solely responsible for this Application and the content thereof. You further acknowledge that the usage rules for this Application are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date You download this Application, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive.

(ii) Scope of License: The license granted to You is limited to a non-transferable license to use this Application on any iPhone, iPod touch or iPad that You own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.

(iii) Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.

(iv) Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to this Application.  In the event of any failure of this Application to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for this Application to that end-user; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to this Application. The parties acknowledge that to the extent that there are any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty such would be the sole responsibility of Jeppesen. However, You understand and agree that in accordance with the EULA, Jeppesen has disclaimed all warranties of any kind with respect to this Application, and therefore, there are no warranties applicable to this Application.

(v) Product Claims: The parties acknowledge that as between Apple and Jeppesen, Jeppesen, not Apple, is responsible for addressing any claims of the end-user or any third party relating to this Application or the end-user’s possession and/or use of this Application, including, but not limited to: (i) product liability claims; (ii) any claim that this Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(vi) Intellectual Property Rights: You acknowledge that, in the event of any third party claim that Your possession and use of this Application infringes that third party’s intellectual property rights, Apple will have no responsibility or liability whatsoever for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

(vii) Third Party Terms: You must comply with applicable third party terms and conditions when using this Application.

(viii) Third Party Beneficiary: You acknowledge and agree that Apple and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon Your acceptance of the terms and conditions contained herein, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third party beneficiary thereof.

(ix) Name and Address of Jeppesen: Boeing Digital Solutions, Inc., 55 Inverness Drive East, Englewood, Colorado, USA 80112

B. ANDROID. When You download or use this Application on any Android® operating system, the following additional terms apply and You agree as follows:

THE ANDROID OPERATING SYSTEM IS DESIGNED TO RUN ON MANY TYPES OF MOBILE DEVICES THAT CONTAIN VARIATIONS INCLUDING BUT NOT LIMITED TO HARDWARE, SYSTEM CONFIGURATION, SOFTWARE, AND FEATURES. THIS APPLICATION MAY NOT BE COMPATIBLE WITH ALL ANDROID MOBILE DEVICES WHICH COULD RESULT IN INCORRECT RENDERING OF JEPPESEN CHARTING DATA.