Software License Agreement
This End User License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between skyIQ, LLC., a Delaware limited liability company ("Licensor") and the person or entity identified on the Order Form as the licensee of the Software ("Licensee").
LICENSOR PROVIDES THE SOFTWARE ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX ON THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE HAVE LEGAL CAPACITY TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT UTILIZE THE SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Authorized Users" means an individual or company who has been granted an account or access credentials pursuant to the license granted under this Agreement, and who is thereby permitted to use the license materials or services in accordance with the terms set forth herein.
"Documentation" means Licensor's user manuals, handbooks, and guides relating to the Software provided by Licensor to Licensee.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Fees" means the fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Licensor Materials” means all software, Updates, user Manuals, and other Documentation provided by, or on behalf of, Licensor to the Licensee including Licensor programs, subscription, services, and all files, reports, analysis, data, and other materials and information provided through or as part of this Agreement.
"Order Form" means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee's purchase of the license for the Software granted under this Agreement.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Services” means all parts of the Licensor’s Software and management.
"Software" means the product described in the Order Form in object code format, including any Updates provided to Licensee pursuant to this Agreement.
"Third Party" means any Person other than Licensee or Licensor.
"Updates" means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.
1) License Grant and Scope. Subject to and conditioned upon Licensee's payment of the Fees and Licensee's compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, non-transferable license, during the Term and solely by and through its Authorized Users. The Licensee acknowledges and agrees that the Services and other Licensor Materials are licensed solely for the internal use of Licensee’s organization in the ordinary course of business in the United States of America. The Licensee may not use the Services or other Licensor Materials for any other purposes, such as use them to provide services to other organizations, or integrate with other third party solutions or services, or any other such circumstances without prior written authorization from Licensor. Licensee agrees to not: (a) grant access to any third party for any purpose whatsoever without the prior written consent of Licensor; (b) make the Services, in whole or in part, available to any other person, entity or business; (c) sell, sublicense, lease, permit, transfer, copy, reverse engineer, decompile or disassemble the Services, in whole or in part, or otherwise attempt to discover the source code to the software used in the Services; or (d) modify, alter, integrate, combine the Services or associated software with any other software or services not provided or approved by us. Licensee will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement.
2. Use Restrictions. Licensee expressly agrees that it shall not, and shall require its Authorized Users not to, directly or indirectly, permit the use of, or authorize the use of the Software in any manner that violates or may reasonably be interpreted to violate any applicable law, regulation, ordinance, or governmental directive, including but not limited to regulations promulgated by the Federal Aviation Administration, and any federal, state, or local laws. This obligation applies regardless of whether such use is intentional, negligent, or otherwise. Any breach of this provision shall constitute a material violation of this Agreement and can result in immediate termination of your License to the Software. Licensee agrees to be solely responsible for any and all liabilities, losses, damages, penalties, or claims arising out of or related to any non-compliant use, and shall indemnify, defend and hold harmless Licensor from and against same.
3. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement. Licensee acknowledges and agrees that Licensee is solely responsible for ensuring that each Authorized User is aware of the material terms of this Agreement, and that no person who is not an Authorized User be allowed access to the Services, related documents and materials. The Licensor Terms and Conditions (the “Terms”), located at [--], govern Licensee’s use of the Website and provides additional terms for the Services. Licensee further agrees to be bound by the Terms, which are incorporated by reference herein. In the event of any conflict between this Agreement and the Terms, this Agreement shall control to the extent necessary to resolve such conflict.
4. Collection and Use of Information. Licensee acknowledges that Licensor may, directly or indirectly, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee.
5. Intellectual Property Rights. Licensee acknowledges and agrees that the Software is only provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the Software and fully cooperate with Licensor, in any legal action taken by Licensor to enforce its Intellectual Property Rights. All data, information, documents, materials, supplies and equipment (“Licensor Materials”) provided by Licensor to Licensee in connection with this Agreement shall be and remain the property of Licensor. Licensor retains all intellectual property rights in such information and materials. Licensor is granted no right or license to use such information or materials except as follows: Licensor hereby grants to Licensee a royalty-free, non-exclusive, revocable, nontransferable, non-sublicensable, limited license to use the Licensor Materials as appropriate solely to use the Services. All other rights are reserved.
6. Payment. All Fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein or in the Terms. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full. Licensee will be responsible for, and agrees to pay, all taxes imposed on all goods and/or services provided under this Agreement.
7. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the "Term"). Either the Licensor or the Licensee may termination this Agreement upon thirty (30) days’ notice to the other, provided, however Licensor may terminate this license automatically, and without notice, if Licensor determines in their sole discretion, that Licensee has breached any terms within this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, Licensor may immediately terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law; or (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law. Licensor shall also have the right to immediately terminate this Agreement if the Licensee discontinues business, or becomes insolvent, or if any action relating to the bankruptcy or insolvency of the Licensee is instituted.
(c) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using the Software. No expiration or termination shall affect Licensee's obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
8. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR (i) THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 10(a) AND SECTION 10(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
9. US Government Rights. Each of the Documentation and the Software is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
10. Indemnification. Licensee will indemnify, defend and hold harmless Licensor, and its directors, officers, employees, agents and representatives from and against any and all losses, damages, demands, claims, costs, penalties, injuries, interest, or expenses (including without limitation reasonable attorney fees and costs) (“Losses”) howsoever caused, arising out of or relating to (i) the use or misuse of the Services or any portion thereof by Licensee or any Authorized Users; (ii) any breach or alleged breach of any representations, warranties, obligations or responsibilities contained herein; (iii) the modification of the Services or any information contained therein, integration, alteration or the combination of all or part of the Services with any other software, program, product or device that is not expressly permitted under this Agreement, by or at the request of the Licensee, or the Authorized User, regardless of whether or not Licensor gave its consent to or performed such combination, integration, alteration or modification; (iv) Licensee’s violation of federal, state or local laws, rules or regulations; or (v) the actions of any person gaining access to the Services through Licensee’s account.
11. Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Pennsylvania in each case located in the City of Allentown and County of Lehigh.
12. Force Majeure. In no event shall Licensor be liable to Licensee or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Licensor's reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement.
13. Entire Agreement. This Agreement, together with the Order Form, and all other documents incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
14. No Assignment. Licensee may not assign or transfer this Agreement, or its rights and obligations herein, without Licensor’s prior written consent, and any attempted assignment or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the Licensee and their respective successors and permitted assigns.
15. Attorneys’ Fees. Licensor shall be entitled to recover all costs actually incurred in connection with any litigation herewith, including, without limited, reasonable attorneys’ fees.
16. Notices. Any notices or communication under this Agreement shall be in writing and by electronic mail. Each party may change its email address for receipt of notice by giving notice of such change to the other party. For contractual purposes, Licensor and Licensee consent to receive communications from each other in an electronic form, and Licensee agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Licensor provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
17. Export Control Law. The Services, and any software or documentation delivered to Licensee under this Agreement are subject to export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained, if outside those jurisdictions. Licensee agreed that it shall abide by all applicable export control laws, rules, and regulations applicable to the Services, software and documentation. Licensee represents and warrants that it is not located in or under the control of or a resident of any country, person, or entity prohibited to receive the Services, software or documentation due to export restrictions and that Licensee will not export, re-export, transfer, or permit the use of the Services, software or documentation, in whole or in part, to or in any of such countries or to any of such persons or entities.
18. Modification and Waiver. Licensor may change the Services by providing Licensee not less than thirty (30) days’ notice, and the terms under which they are provided to Licensee (including terms set forth in this Agreement) at any time. If such change materially alters the Services, then upon receipt of such a notice or notification of the change in the terms of the Agreement electronically provided within the Services or in writing Licensee may terminate this Agreement by giving written notice to Licensor on or before the effective date of the change. Licensee agrees that Licensee’s failure to give notice of termination prior to the effective date of the change in Services constitutes acceptance of the change, which shall thereupon become part of this Agreement. The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no usage of trade or other regular practice or method of dealing between or among the parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
19. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
20. Survival. The provisions of this Agreement that by their nature contemplate survival of this Agreement shall survive any termination or expiration of this Agreement.