NC SOFTWARE AGREEMENT FOR LICENSED SOFTWARE
IMPORTANT—READ CAREFULLY. This Agreement for Licensed Software (the “Agreement”) is entered into between you (either an individual or single entity) (the “Licensee”) and NC Software, Inc.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, COPYING, USING OR INSTALLING ANY PART OF THE SOFTWARE, LICENSEE EXPRESSLY AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE, YOU MAY NOT ACCESS, COPY USE OR INSTALL ANY PART OF THE SOFTWARE.
The parties agree as follows:
Software. The term “Software” shall mean the computer program Logbook Pro in object code only and the user manuals and documentation, if any. The term “Software” includes any corrections, bug fixes, updates or other modifications to such computer program and manuals and documentation.
Other Software. The terms “Other Software” shall mean any and all services and software programs provided to Licensee under this Agreement, not including the Software, or employed in the use or operation of the Software.
2. Software License.
2.1. Grant. NC Software grants to Licensee a nontransferable, nonexclusive, perpetual license to use the Software solely on the terms and conditions set forth in this Agreement.
2.2. Restrictions on Use. Licensee agrees to use the Software only for Licensee’s own use and not for the benefit of any third-party in a commercial, retail or similar enterprise and shall not permit any other person or entity, including any third-party, parent, subsidiary, or affiliate entity to use the Software. Licensee shall not use, copy, modify, or distribute the Software (electronically or otherwise) or any copy, adaptation, transcription, or merged portion thereof except as expressly authorized under this Agreement. Licensee shall not lend, lease or rent the Software.
2.3. Authorized Installation. Depending upon the version of the Software, the Licensee may install the Software computer program as set forth below:
2.3.1. Logbook Pro Standard Edition. Provided that all required license fees (the “Fees”) are paid for the Logbook Pro Standard Edition, Licensee may install and use one copy of the Software computer program on a single computer (the “Computer”) for its own use in maintaining records for a single pilot without evaluation restrictions. Licensee may temporarily transfer the Software to a back-up computer if the Computer is inoperative for more than 24 hours.
2.3.2. Logbook Pro Professional Edition. Provided that all Fees are paid for the Logbook Pro Professional Edition, the Licensee may install and use a single copy of the Software computer program on two Computers for its own use in maintaining records for a single pilot without evaluation restrictions. Licensee may temporarily transfer the Software to a back-up computer if the Computer is inoperative for more than 24 hours.
2.3.3. Logbook Pro Enterprise Edition. Provided that all Fees are paid for the Logbook Pro Enterprise Edition, the Licensee may install and use a single copy of the Software computer program on one Computer for its own use in maintaining records for multiple pilots without evaluation restrictions. Licensee may temporarily transfer the Software to a back-up computer if the Computer is inoperative for more than 24 hours.
2.3.4. Logbook Pro Palm Companion and Logbook Pro Pocket PC Companion (“the PDA Companion”). Provided that all required license fees (the “Fees”) are paid for the PDA Companion, Licensee may install and use one copy of the Software computer program on a single device (the “Computer”) for its own use in maintaining records for a single pilot without evaluation restrictions. Licensee may temporarily transfer the Software to a back-up device if the Computer is inoperative for more than 24 hours.
2.4. Copies. Licensee may make one backup/archival copy of the Software’s computer program, provided that the copy shall include NC Software’s copyright and any other proprietary notices on the copy. The license for the Software may not be shared or used concurrently. Licensee shall have no other right to copy, in whole or in part, the Software. All copies of the Software made by Licensee are the exclusive property of NC Software.
2.5. Modifications. Licensee agrees that only NC Software shall have the right to alter, enhance or otherwise modify the Software. Licensee shall not decompile or reverse assemble the Software’s computer program or otherwise examine the Software’s computer program for purposes of reverse engineering.
2.6. Other Software. Licensee acknowledges and agrees that the Software may combine, operate or use Other Software in the operation and the use of the Software, but that the Other Software is the property of another or licensor and that Licensee has no right or title, nor will it assert any right or title, in the same except as expressly granted in writing by the terms and conditions of such party’s license or purchase agreement. Other Software provided to Licensee under this Agreement shall be used only in accordance with the applicable license and only in conjunction with the Software and may be terminated at any time in the sole discretion of NC Software or the licensor of the Other Software.
3.1. Intellectual Property. NC Software reserves all rights not expressly granted. Licensee understands that the license granted herein transfers neither title nor proprietary rights to Licensee with respect to the Software. Licensee acknowledges and agrees that NC Software owns all right, title and interest in and to: (a) the Software, related documentation, enhancements, updates and all other proprietary work product or works of authorship developed by NC Software and furnished under this Agreement; and (b) all copyrights, patents, trademarks, service marks, trade secrets and all other intellectual property rights relating thereto.
3.2. Ownership of Customizations. NC Software shall own all right, title and interest (including all associated intellectual property rights) in and to any customizations, enhancements, modifications, improvements, derivations, extensions, or other changes to the Software, including any that result from the joint efforts or collaboration of NC Software and Licensee. In no event, however, shall Licensee have any right to make such changes to the Software.
3.3. Cooperation. Upon NC Software’s request, the Licensee agrees to execute such further instruments and to take such further actions as NC Software may reasonably request, to apply for, register, perfect, confirm and protect NC Software’s rights. The Licensee shall reimburse NC Software for any and all expenses that NC Software may incur (including interest, costs, attorneys’ fees and other legal expenses) in connection with NC Software’s efforts to enforce its rights against the Licensee in the event NC Software prevails against the Licensee with respect to the Software or any of NC Software’s intellectual property rights.
4. Fees and Payment Terms.
4.1. License Fees. Except as otherwise permitted by NC Software in its sole discretion, Licensee shall pay NC Software the Fees for the Software, which shall be payable in full by Licensee no later than upon its agreement to this Agreement and use of the software without Evaluation restrictions. To the extent that any payment made by the Licensee is terminated, charged back or returned for insufficient funds, Licensee shall be responsible for the payment of all bank or credit card fees and the costs of collection, including reasonable attorneys’ fees and costs.
4.2. Taxes. The Fees do not include any amounts for taxes. Licensee shall be responsible for, and shall promptly pay, all applicable taxes levied by any tax authority based upon this Agreement and/or the Software (including, but not limited to, sales and use taxes). All payments due hereunder are net amounts to be received by NC Software, exclusive of all taxes, duties, assessments and similar taxes and duties, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, assessments or liabilities incurred by Licensee or otherwise due as a result of this Agreement.
5. Intellectual Property Rights.
5.1. Notice. Licensee shall give NC Software prompt written notice of any threat, warning, or notice of any claim or action that could have an adverse impact on NC Software’s rights in and to the Software.
5.2. Indemnity. In its sole discretion, NC Software may elect to defend and indemnify Licensee in any claim or action asserted against Licensee by a third-party to the extent that it is based upon a claim that the Software, as provided by NC Software under this Agreement and excluding any Other Software, infringes any U.S. copyright, trademark or trade secret, provided that Licensee (a) promptly notifies NC Software in writing of the claim, (b) grants NC Software sole control of the defense and settlement of the claim, and (c) provides NC Software with all assistance, information and authority reasonably required for the defense and settlement of the claim. If Licensee’s use of the Software is, in the sole opinion of NC Software, likely to be enjoined or is enjoined due to such a claim or action, NC Software may, in its sole discretion: (a) procure for the Licensee the right to use the Software under such terms as may be deemed reasonable by NC Software; (b) replace or modify the Software so that it is not infringing and so that it is substantially equivalent in function to the enjoined use of the Software; or (c) if the options contained in (a) and (b) cannot be accomplished in the sole opinion of NC Software, then NC Software may terminate this license and Agreement and refund to the Licensee any Fees paid less a deduction for the use of the Software.
5.3. Exclusions. NC Software will not have any liability for any infringement or misappropriation claim of any kind to the extent that it results from (a) any modification to the Software made by a party other than NC Software if a claim would not have occurred but for such modification, (b) the combination, operation or use of the Software with equipment, devices, software or data other than the Software, (c) Licensee’s failure to use updated or modified versions of the Software provided by NC Software which would avoid a claim, (d) NC Software’s compliance with any design, specification or plan provided by Licensee, (e) the Licensee’s combination, operation or use of the Software outside of the geographical limits of the U.S., or (f) the Licensee’s use of the Software other than in accordance with this Agreement or the applicable documentation.
5.4. Exclusive Remedy. The provisions of Article 5 set forth the NC Software’s sole and exclusive obligations, and Licensee’s sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind by the Software.
6. Confidential Information. The term “Confidential Information” shall mean the Software, excluding information that (a) is publicly available at the time of disclosure, (b) becomes publicly available through no fault of the Licensee, (c) is acquired rightfully by the Licensee from a third party who is not in breach of an agreement to keep such information confidential, or (d) is required to be disclosed by law. Licensee understands that the Software comprises Confidential Information and know-how that are the exclusive property of NC Software and agrees to maintain the secrecy of the Confidential Information and agrees not to use it except as provided herein.
7.1. Grounds for Termination. This Agreement may be terminated:
7.1.1. by NC Software immediately upon written notice to the Licensee if the Licensee breaches its confidentiality obligations under this Agreement;
7.1.2. by either party immediately upon written notice to the other party if the other party breaches its obligations under this Agreement and fails to cure the breach within fifteen days from the date of the written notice of the breach from the other party;
7.1.3. by NC Software in the event Licensee makes a general assignment for the benefit of creditors, admits its insolvency, files a voluntary petition in bankruptcy or for reorganization under the bankruptcy laws, if a petition in bankruptcy is filed against Licensee, or if a receiver or trustee is appointed for all or any part of the property or assets of Licensee; or
7.1.4. by a written agreement executed by the parties.
7.2. Effect of Termination. Upon termination of the license for Software, Licensee shall immediately cease using the Software and Other Software, if any, and shall either destroy or return the original and all copies, in whole or in part, in any form or media, of the Software. Licensee shall certify such action in writing to NC Software within thirty days after the date of termination.
7.3. Survival of Certain Obligations. Upon termination of this Agreement, the following provisions shall survive any expiration or termination of this Agreement and shall remain in effect until fulfilled: Articles 4, 5, 6, 7, 8, 9, 10, 11 and 12.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND ANY OTHER SOFTWARE IS PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NC Software DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES RELATING TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR TITLE, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE.
NC Software DOES NOT WARRANT THAT THE SOFTWARE OR ANY OTHER SOFTWARE IS FREE FROM BUGS, ERRORS, OR OTHER PROGRAM LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NC Software OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LICENSEE ACKNOWLEDGES THAT NC Software IS NOT RENDERING ANY LEGAL, PROFESSIONAL OR AVIATION SERVICES TO LICENSEE. LICENSEE IS RESPONSIBLE FOR KEEPING INFORMED OF ANY CHANGES IN LAWS, REGULATIONS AND OTHER PRACTICES AFFECTING ITS USE OF THE SOFTWARE AND/OR ITS BUSINESS. NC Software DOES NOT WARRANT THAT THAT THE USE OR OPERATION OF THE SOFTWARE AND ANY OTHER SOFTWARE COMPLIES OR WILL ASSIST IN COMPLIANCE WITH ANY STATUTES, REGULATIONS, INDUSTRY STANDARDS OR PROCEDURES, INCLUDING THOSE THAT ARE AVIATION OR FLIGHT RELATED.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NC Software AND ANY OF ITS AGENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, VENDORS, DEALERS OR SUPPLIERS (together “REPRESENTATIVES”) ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, PROGRAM OR SYSTEM VIRUSES, LOST OR CORRUPTED DATA, LOST PROFITS, WAGES, INVESTMENTS OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF NC Software OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NC Software AND THE LICENSEE. THE LICENSEE ACKNOWLEDGES THAT NC Software WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE ON THE TERMS AND CONDITIONS HEREIN WITHOUT SUCH LIMITATIONS. THE ENTIRE LIABILITY OF NC Software AND ITS REPRESENTATIVES FOR ANY REASON UNDER THIS AGREEMENT SHALL NOT EXCEEED THE AMOUNT PAID BY LICENSEE TO NC Software FOR THE SOFTWARE. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT NC Software HAS SET ITS PRICE FOR THE SOFTWARE AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN NC Software AND THE LICENSEE AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
10. Non-Applicability of Uniform Computer Information Transactions Act. Pursuant to Virginia Code § 59.1-501.4, the parties agree that the provisions of the Uniform Computer Information Transactions Act, Virginia Code §§ 59.1-501.1 et seq., do not apply to or govern this Agreement.
11. Notices. Any notice or other communication required or permitted under this Agreement shall be given in writing and delivered when sent by first-class mail, postage pre-paid, or when sent by facsimile or e-mail to the other party’s last known mailing, facsimile or e-mail address and for NC Software to: NC Software, Inc., 2711 Centerville Road, PMB 5115, Suite 120, Wilmington, DE 19808.
12. General Provisions.
12.1. Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of any provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
12.2. Consent to Use of Data. Licensee agrees that NC Software and its affiliates may collect and use technical information to the extent gathered as part of the product support services and/or activation, if any, related to the Software. NC Software may use this information solely to improve our products or to provide customized services to licensee and will not disclose this information in a form that personally identifies Licensee.
12.3. Assignment. Licensee may not assign, sublicense or otherwise transfer its rights, duties or obligations under this Agreement, in whole or in part, to anyone and any attempt to do so shall be deemed a material breach of this Agreement.
12.4. Reservation of Right to Amend the Agreement. NC Software reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional terms or conditions on the use of the Software. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. The continued use of the Software will be deemed to constitute acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
12.5. Export Restrictions. Licensee acknowledges that the Software is of United States origin and is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
12.6. Consent to Receiving E-Mail. Licensee agrees to receive e-mail from NC Software during the term of the Agreement.
12.7. Force Majeure. If the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, terrorism, riot, fire, acts of the common enemy, judicial or government action, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent it is prevented, hindered or delayed by such causes.
12.8. Entire Agreement. This Agreement constitutes the complete agreement and statement of all mutual understandings between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, communications and understandings, whether oral or written. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect or be used to interpret, change, restrict, the express terms of this Agreement. Captions and headings used in this Agreement are for reference only, and shall not constitute binding terms and conditions of this Agreement.
12.9. Severability. If any provision of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect as near as possible the original intention of the parties and the balance of the Agreement shall remain in full force and effect.
12.10. Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
12.11. Applicable Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, U.S, excluding its conflicts of law rules and the United Nations Convention on the International Sale of Goods. Any action or suit related to this Agreement shall be brought in the state or federal courts sitting in the Commonwealth of Virginia.
12.12. Legal Expenses. If NC Software must bring an action or proceeding to enforce this Agreement or if it substantially prevails in an action or proceeding brought by the Licensee, it shall be entitled to recover its reasonable attorneys’ fees and costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
12.13. Read and Understood. LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS.