Thales Application Portal Developer and Licensing Agreement - Version: 2.1. May 17, 2013
APPLICATION PORTAL DEVELOPER AND LICENSING AGREEMENT
Please carefully read all of the following terms and conditions under this Application Portal Developer and Licensing Agreement ("Agreement").
You may click "I Accept" at the bottom of this screen if and only if:
(1) You are a duly appointed representative of a registered, lawful, and licensed business entity
(3) Your business entity agrees to this Agreement.
By clicking "I Accept" you form a legally binding contract between your business entity and Thales. Thales will then review your registration request and will notify you if access to Elevate Your Apps with Thales™ has been granted or denied.
You must click "I Decline" at the bottom of this screen if:
(1) You are not a duly appointed representative of a registered, lawful, and licensed business entity
(2) Your business entity does not agree to this Agreement.
By clicking "I Decline" you do not form a legally binding contract between your business entity and Thales. You will not be given access to Elevate Your Apps with Thales™.
1. APPLICABILITY OF AGREEMENT
This Agreement between Thales Avionics, Inc. ("Thales") and your business entity ("you" or "your") governs: (i) your use of the Thales Application Portal ("TAP") with its corresponding website located at www.elevateyourapps.com and any associated content, designs or software code (collectively, the "Site"); and (ii) the licensing, sub-licensing, and use of your Applications as defined below.
2. USE OF PORTAL
a. The Site allows you to submit and upload, with legal authorization only, video, audio, html pages, text, font files, meta data, images, text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, content, artwork and software code (collectively, "Application(s)") to the Site. You agree that your use of the Site is your sole responsibility. If applicable, you agree that you have obtained all necessary rights and licenses for the licensing, sub-licensing, and use of your Application as contemplated by this Agreement. You agree to provide accurate and complete account information for the Site.
b. You must apply to the Application(s) the digital rights management technology that Thales makes available and/or requests. You will not incorporate any other digital rights management technologies into your Application(s).
c. You agree that Thales has no obligation to promote, distribute, license, sub-license, sell, or offer for sale any Application(s). You shall receive no compensation pursuant to this Agreement and the Site unless and until an airline customer of Thales selects your Application(s), installs your Application(s) onboard its aircraft, and uses your Application(s) in the airline customer’s commercial operations as part of Thales’ in-flight entertainment system.
d. If you are granted access to the Elevate Your Apps with Thales™ website, then you shall be designated a "Registered TAP Developer." You agree to always abide by the terms of this Agreement.
3. PORTAL SECURITY
a. You may not use any automatic or manual devices, processes, algorithms, or methodologies to acquire, copy, or monitor any portion of the Site, or in any way reproduce or circumvent the navigational structure or presentation of the Site, or to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site.
b. You may not attempt to gain unauthorized access to the Site, or any other systems or networks connected to the Site, or to any Thales server, or to any of the services offered on or through the Site, by hacking, password "mining" or any other illegitimate or unethical means. You may not use anyone else’s Site username, password, or account at any time and you may not share your Site username, password, or account with anyone else in any manner.
c. You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, or breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, seek to reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Site, or on any airline customer of Thales, to its source.
d. Unless expressly permitted in a separate written agreement with Thales, you may not modify, publish, network, rent, lease, loan, transmit, sell, license, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit any of the Site in whole or in part.
e. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Thales’ systems or networks, or any systems or networks connected to the Site or to Thales. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
f. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send on or through the Site or any service offered on or through the Site. You may not pretend that you are or that you represent someone else.
g. You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your username and password, and for any and all activity that occurs under your account. You agree to notify Thales immediately of any unauthorized use of your account, or any other breach of security. You may be held liable for losses incurred by Thales or any other user of or visitor to the Site due to someone else using your Site username, password or account.
h. You may not upload or submit any Application(s) containing a computer virus, malware, spyware, time bomb, adware, or any other element that could be deemed malicious, deceptive, unethical, or illegal. You agree that you may be subject to criminal prosecution and/or civil liability for any such acts.
i. Thales will not be liable for any loss or damage arising from your failure to comply with Article 3 herein.
j. You may not use the Site for any illegal or unethical purpose or any other purpose prohibited by this Agreement.
4. GRANT OF LICENSE AND RIGHT
a. Grant of License: You grant to Thales and its affiliates the world-wide, non-exclusive, unrestricted, sub-licensable, perpetual, transferable license and right to test, market, evaluate, promote, sell, offer for sale, reproduce and/or have reproduced, distribute and/or have distributed, integrate and/or have integrated your Application(s) in any other product or system (including in a third party product or system), and to license and sublicense, as applicable, your Application(s) under this Agreement for the purpose of: (i) potential or actual commercial use by Thales’ airline customers; and (ii) development, promotion, and marketing of the Site.
b. Additional Rights: In addition, you grant to Thales and Thales’ affiliates, partners, consultants, subcontractors, and airline customers any ancillary rights reasonably necessary to effectuate the purpose of this Agreement, including but not limited to the rights to package, encode, store, transmit, perform and display Application(s). Thales reserves the right to translate the language contained in your Application(s) to any other language. Nothing in this Agreement restricts Thales from exercising any right available to Thales under applicable law or under any separate license.
c. Thales may, in its sole discretion, grant to you a term-limited, revocable, non-transferable, non-sublicensable license to use the software development kit provided by Thales solely for the purpose of development and testing of your Application(s) pursuant to this Agreement. Thales may revoke such license at any time, for any reason or no reason, in Thales’ sole discretion, in which case you shall: (i) immediately cease using and/or accessing the software development kit; and (ii) immediately destroy the software development kit, including any and all copies however made. You agree that such software development kit shall constitute Thales Confidential Information (as defined below) and is proprietary to Thales. You agree not to modify nor remove any markings or legends in the software development kit to the effect that such a software development kit is proprietary and/or confidential to Thales. You agree that you shall have no rights of ownership, authorship, nor title in the software development kit and that you shall not make nor facilitate any representations to third parties in such regard.
5. ROYALTY LICENSE PAYMENTS AND REPORTING
a. Royalty License Fee: The grant of license and right under Article 4(a)-(b) shall remain royalty-free unless and until an airline customer of Thales selects your Application(s), installs your Application(s) onboard its aircraft, and uses your Application(s) in the airline customer’s commercial operations as part of Thales’ in-flight entertainment system. Accordingly, for each such aircraft installed with your Application(s), Thales will pay you an Application royalty license fee of seventy percent (70.0%) of the net license fee actually paid to Thales solely for the Application ("Royalty License Fee"). The Royalty License Fee calculation of seventy percent (70.0%) shall derive from one hundred percent (100.0%), provided that such one hundred percent (100.0%) excludes: (i) any and all applicable taxes, duties, or governmental fees arising from or related to this Agreement, including but not limited to the licensing or sub-licensing of your Applications and/or the payment of the Royalty License Fee; and (ii) any fees or charges paid or payable by Thales’ airline customer that are related, supplementary, or complementary to the Application for maintenance, support, integration, or related services. Upon mutual and prior agreement by you and Thales in writing, the Royalty License Fee may be calculated at an amount higher or lower than the seventy percent (70.0%) amount as described herein.
b. You shall bear and be responsible for any income taxes, value-added taxes, sales taxes, or other taxes arising from or related to this Agreement, including but not limited to licensing or sub-licensing of your Applications and/or the payment of the Royalty License Fee. Any Royalty License Fee payment to you is inclusive of any and all taxes that may apply. Thales maintains the right, however, to deduct or withhold any applicable taxes from such Royalty License Fee payment, such that the reduced Royalty License Fee payment shall constitute payment in full to you. All payments to you will be made in US dollars (US$) only.
c. You will indemnify, defend and hold Thales and its affiliates (including any respective officers, directors, employees, contractors, successors and assigns) harmless from and against any loss, claim, liability, damage, fine, penalty, expense, action or cause of action (including reasonable attorneys’ fees) related to any taxes or governmental charges that arise out of or result from this Agreement, including but not limited to the licensing or sub-licensing of your Applications and/or the payment of the Royalty License Fee. You will pay any reasonable attorneys’ fees and all damages so awarded by a court of competent jurisdiction or consented to in a settlement agreement between you, on behalf of Thales, and such third party.
d. Royalty Reports: Within thirty (30) days after the end of each calendar quarter, Thales will provide you with a written or electronic royalty report. Each report will include a list of the number of aircraft installed with your Application(s) and dates for commencement of actual commercial use of your Application(s) on such aircraft. Thales will submit a purchase order to you based on the royalty report.
e. Offset: In the event of termination of this Agreement for any reason, Thales has the right to offset any Royalty License Fee(s) due to you against an amount equivalent to any losses and costs incurred by Thales and/or its airline customers arising from or related to your acts or omissions under this Agreement ("Losses"). If subsequent to the offset: (i) the Losses are greater than the Royalty License Fee(s) due to you, then you shall be paid no Royal License Fee and shall owe Thales the difference of the offset; or (ii) the Royalty License Fee(s) due to you are greater than the Losses, then you shall be paid the difference of the offset as full and final payment.
f. Invoices: Invoices submitted by you shall identify your Application(s) and the applicable purchase order number(s) provided by Thales. Invoices shall be sent to the attention of:
Thales Avionics Inc.
Attention: Accounts Payable
Irvine, CA 92618-3105
6. REPRESENTATIONS AND WARRANTIES
You represent and warrant the following:
a. You may communicate with an airline customer under this Agreement to the limited extent of promoting and marketing your Application(s), provided that you agree to direct such airline customer to Thales for any further contractual, licensing, operational, and financial negotiations. You will not directly or indirectly negotiate, finalize, nor enter into any contract and/or licensing agreement with any airline customer regarding your Application(s) or in connection with this Agreement. Thales will have sole control of all sales, sub-licensing, distribution, and other data Thales obtains from airline customers in connection with this Agreement. For the avoidance of doubt, you agree that Thales has sole control and sole discretion, without your involvement nor influence, to negotiate, finalize, and enter into any contractual and/or licensing agreement with the airline customer regarding your Application(s).
b. You have the right to submit the Application(s) for the purposes contemplated by this Agreement. Specifically, you represent and warrant that you are the sole creator, developer, and owner of your Application(s), including any and all components, graphics, video, designs, concepts, and audio for such Application(s), failing which you represent and warrant that you have secured and shall maintain, at your own cost, any and all of the necessary rights and licenses for the transactions and purposes contemplated for such Application(s) under this Agreement. In the case of an Application with any third party components, including but not limited to free and/or opensource (FOSS), you represent and warrant that (i) you are in compliance with any applicable third party licenses and (ii) you have complied with and will continue to fully comply with all terms, conditions and requirements of any third party licenses (including but not limited to FOSS) that purport to govern and apply to any third party component that is included with or embedded in your Application(s). You represent and warrant that in no event will the intellectual property rights of Thales, Thales’ airline customers or any third party performing on behalf of Thales be subject to any FOSS licenses as a result of the Application, and you shall indemnify Thales, Thales’ airline customers and any other related third party provided by Thales for any expenses and damages resulting therefrom.
c. All of your employees and/or contractors who have created and developed the Application(s) have irrevocably and unconditionally assigned and transferred all of their right, title, and interest in such Applications from themselves to your business entity.
d. Your Application(s) are and shall remain free from errors, viruses, and malicious codes.
e. There are neither potential nor existing claims, demands, arbitration(s), or litigation(s) against you arising from or related to the Applications.
a. You will provide reasonable technical and product support for your Application(s), free-of-charge, as requested by Thales. You shall respond within twenty-four (24) hours via e-mail and/or telephone upon receipt of notice from Thales for support of the Application(s).
b. Without limiting the previous sentence, you will repair or replace your Application(s) free-of-charge within fifteen (15) days from date of notice.
c. You will provide to Thales, free-of-charge, any enhancements or updates to your Application(s).
d. You shall provide to Thales, free-of-charge, support and solutions for any errors, bugs or failures with respect to your Application(s).
e. Thales may provide any notice under this Article 7 - "Support" by email, telephone call, fax, or standard mail.
Unless you have received Thales’ express and prior written permission, you will not use any trademark, service mark, commercial symbol, or other proprietary right of Thales, nor will you issue press releases or other publicity or promotional materials relating to Thales, Thales’ airline customer(s), the Site, or this Agreement.
a. You agree that Thales may terminate your access to the Site and/or terminate this Agreement with you in Thales’ sole discretion, with or without notice to you, and without any liability for Thales.
b. You agree that any breach by you of this Agreement may constitute an unlawful and unfair business practice and will cause irreparable harm to Thales, for which monetary damages would be inadequate, and you consent to Thales obtaining any injunctive or equitable relief that Thales deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Thales may have at law or in equity.
c. If Thales does take any legal action against you as a result of your breach of this Agreement, Thales will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Thales. You agree that Thales will not be liable to you or to any third party for termination of your access to the Site and/or termination of this Agreement with you.
d. Upon any termination, and at Thales’ discretion, the Site registration granted to you by Thales will cease, and you agree to destroy any and all Thales’ Confidential Information that is in your possession or control. At Thales’ request, you agree to provide certification of such destruction to Thales.
e. Any termination of this Agreement will only apply to future licensing and sub-licensing of your Application(s) on a going-forward basis and will not in any way affect any Application(s) or related sub-licenses or existing rights at the time of such termination. In addition, regardless of termination of this Agreement, Thales shall have the right to use and/or distribute any pre-paid Application sub-licenses until such inventory is depleted.
f. All provisions of this Agreement, which by their nature shall survive any termination of this Agreement, shall remain in full force and effect after such termination, including but not limited to Article 5 (Royalty Payments and Reporting), Article 9 (Termination), Article 10 (Intellectual Property), Article 12 (Confidential Information and Non-Disclosure), Article 13 (Disclaimers), Article 14 (Limitation of Liability), Article 15 (Indemnity), Article 16 (Governing Law and Dispute Resolution), Article 17 (Export Control), and Article 18 (Miscellaneous).
10. INTELLECTUAL PROPERTY
a. You shall retain title and ownership interest in your Application(s).
b. Thales shall retain all intellectual property rights, title and interest in the Site, including all rights under applicable patents, patent applications, copyrights, moral rights, trademarks, trade secrets, and any other intellectual property laws. Except as expressly set forth herein, no rights or licenses are granted or to be implied with regard to any intellectual property of Thales, its affiliates, its suppliers, or its airline customers.
c. In the event a third party approaches Thales, its affiliate(s), and/or airline customer(s) (the "Indemnitee(s)") alleging that the Application(s) provided by you under this Agreement infringes a third party’s intellectual property rights or other rights, you shall promptly procure an irrevocable release for Indemnitees, free of cost to Indemnitees, from such alleged infringement claim(s) for past use; and, for continued use of the Application(s), subject to the infringement claim(s), you shall (i) procure for the relevant Indemnitees a worldwide, royalty-free, perpetual, and irrevocable license to continue to use the Application(s); and if unable to procure such a license under Article 10(c)(i), you shall (ii) modify or replace the Application(s) so as to make it non-infringing to the satisfaction of such third party while retaining its form, fit and functionality.
d. Where a third party has initiated a lawsuit or other similar proceeding (including the seeking of preliminary injunction) against the Indemnitee(s) based on an allegation that an Application(s) infringes the intellectual property rights or other rights of such third party, the relevant Indemnitees shall notify you of such occurrence as soon as commercially reasonable, and you shall assume and diligently conduct the defense of such lawsuit or other proceedings and pay all costs relating thereto, including attorneys’ fees. If you fail to assume the defense within a period of thirty (30) days, the relevant Indemnitees may conduct the defense, and you shall reimburse the relevant Indemnitees for the costs incurred, including reasonable attorneys’ fees.
e. Any settlement of the lawsuit or other proceeding referred to in Articles (c) and (d) above by you shall be subject to you taking, at your own expense and costs, the measures set out in Articles 10(c)(i) and (ii). When defending or settling the claim, you shall refrain from making statements contrary to the Indemnitees’ interests, and shall not enter into any settlement without Thales’ consent if such settlement would require Thales or the concerned Indemnitee to make any admissions, to undertake or refrain from taking any actions in the marketplace, or to make any payments.
f. In the event you are not successful in your defense, in whole or in part, in the lawsuit or other proceeding referred to in Article 10(d), you shall (i) reimburse the relevant Indemnitees for any damages or costs awarded against the relevant Indemnitees related to the past use that is found to be infringing; (ii) promptly take, at your own expense and costs, one of the actions as defined in Articles 10(c)(i) and (ii) to cease the infringement; and (iii) indemnify the relevant Indemnitees for damages and losses incurred.
g. Thales shall, upon your written request and at your expense, provide reasonable assistance to you to support you in the settlement of and/or defense against the allegation, lawsuit or other proceeding referred to in Article 10(d). In addition, you agree to provide such reasonable assistance to Thales where Thales undertakes to conduct the defense as provided in Article 10(d).
h. You shall not be liable under Article 10(c) to (f) to the extent the allegation or claim of infringement is based solely on the unauthorized alteration or modification of the Application(s) by Thales and but for such unauthorized modification or alteration, there would not be an infringement or misappropriation claim.
a. Changes to the Agreement and/or Site: Thales reserves the right, at its sole discretion, to amend all or any part of this Agreement at any time with or without notice to you and without liability for Thales. If and when Thales amends the Agreement in any manner, then your continued use of the Site and/or your acceptance of any Royalty Fee(s) shall constitute and be deemed as acceptance of such an amended Agreement. It is your sole responsibility to review and become familiar with this Agreement and any amendments thereto. The current, legally binding version of the Agreement will always be available on the Site for your review.
b. Withdrawal of Application(s): Thales may determine in its sole discretion, and without any liability, to make any Application(s) available or unavailable through the Site. Thales may stop any transaction or take other actions as needed to restrict access to or availability of any Application(s) that does not comply with this Agreement or that otherwise might adversely affect Thales or an airline customer. Inclusion of your Application(s) in the Site, or any withdrawal of an Application, does not relieve you of any obligations under this Agreement.
c. Any withdrawal of an Application will only apply to future licensing and sub-licensing of your Application(s) on a going-forward basis and will not in any way affect any Application(s) or related sub-licenses or existing rights at the time of such withdrawal. In addition, regardless of withdrawal of an Application, Thales shall have the right to use and/or distribute any pre-paid Application sub-licenses until such inventory is depleted.
a. Except as expressly provided in this Agreement, you may not copy or publicly disclose any part of the Site in any manner to any other computer, server, web site or other medium without Thales’ express prior written consent.
b. You may use information on Thales products and services (such as data sheets, knowledge base articles, and similar materials) purposely made available by Thales for downloading from the Site ("Information"), provided that you (i) do not remove any proprietary notice language in the Information, (ii) use such Information only for your personal, non-commercial informational purposes and do not publicly disclose such Information, (iii) make no modifications to any such Information, and (iv) do not make any additional representations or warranties relating to such Information.
c. You agree that any software, hardware, materials, and documentation (such as but not limited to a software development kit) provided to you will be considered and referred to as "Thales Confidential Information."
d. Unless otherwise expressly agreed or permitted in writing by Thales, you agree not to disclose, publish, or disseminate any Thales Confidential Information to anyone other than to other Registered TAP Developers who are employees working for the same business entity as you and then only to the extent that Thales does not otherwise prohibit such disclosure. Except for the sole purpose of this Agreement, you agree not to use Thales Confidential Information in any way, including, without limitation, for your own or any third party's benefit, without the prior written approval of Thales in each instance. You agree to prevent any unauthorized use, disclosure, publication, or dissemination of Thales Confidential Information. You agree not to reverse engineer, de-compile, or disassemble any Thales Confidential Information. You acknowledge that unauthorized disclosure or use of Thales Confidential Information could cause irreparable harm and significant injury to Thales that may be difficult to ascertain. Accordingly, you agree that Thales will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies Thales may have. If you are required by law, regulation or the valid binding order of a court of competent jurisdiction to disclose Thales Confidential Information, you may make such disclosure, but only if you have notified Thales before making such disclosure and have used your best efforts to limit the disclosure and to seek confidential and protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as Thales Confidential Information.
a. THALES DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF SECURITY, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING FROM OR RELATED TO THE SITE, THIS AGREEMENT, OR ANY MATERIALS PROVIDED BY THALES TO YOU, INCLUDING BUT NOT LIMITED TO A SOFTWARE DEVELOPMENT KIT. THALES DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS AND OMISSIONS OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO THE SITE OR THIS AGREEMENT. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOU WAIVE ANY AND ALL RIGHTS AND REMEDIES AGAINST THALES ARISING FROM OR RELATED TO THE LOSS, THEFT, OR DAMAGE OF YOUR APPLICATION ARISING FROM OR RELATED TO THE SITE OR THIS AGREEMENT.
b. THALES DOES NOT REPRESENT THAT THE SITE NOR APPLICATION(S) WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE, AND ANY CONNECTED OR RELATED HARDWARE, SOFTWARE, MATERIALS (INCLUDING BUT NOT LIMITED TO A SOFTWARE DEVELOPMENT KIT) AND/OR CONNECTIVITY IS ONLY PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. THE SITE AND THIS AGREEMENT ARE SUBJECT TO CHANGE WITHOUT NOTICE. THALES DOES NOT REPRESENT THAT THE SITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE FEATURES.
c. Thales reserves the right to modify or change your Application(s) as necessary to support the requests or requirements of a Thales airline customer. Accordingly, Thales hereby disclaims and you expressly waive any and all moral rights or similar rights, whether express or implied, arising from or related to your Application(s) or this Agreement.
d. The above disclaimers apply to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, theft, loss, damage, deletion, defect, delay in operation or transmission, computer virus, communication line failure, destruction, unauthorized access, alteration, or use, whether arising under statute, equity, contract, tort (including negligence) or otherwise. Thales administers and operates the Site from its location in Irvine, California USA; other Thales sites may be administered and operated from various locations within or outside the United States. Although the Site is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Thales reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative, and you are solely responsible for complying with applicable local laws.
e. Third party software provided to you as a Registered TAP Developer may be accompanied by its own licensing terms, in which case such licensing terms will govern your use of that particular third party software. Reference to third parties and third party products in any materials, advertising, promotions or coupons provided to you as a Registered TAP Developer is for informational purposes only and constitutes neither an endorsement nor a recommendation by Thales. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Thales shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, STATUTE, EQUITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE:
(A) NEITHER THALES NOR ANY OF THALES’ SUPPLIERS, CUSTOMERS, NOR LICENSORS SHALL HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, LIQUIDATED, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND NEITHER THALES NOR ANY OF THALES’ SUPPLIERS, CUSTOMERS, NOR LICENSORS SHALL BE LIABLE FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, WHETHER THESE LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM; AND
(B) EXCEPT FOR ANY ROYALTY FEE(S) DUE TO YOU PURSUANT TO ARTICLE 5 HEREIN, IF THALES OR ANY OF ITS SUPPLIERS, CUSTOMERS, OR LICENSORS ARE FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO THE SITE OR THIS AGREEMENT, THE ENTIRE LIABILITY TO YOU SHALL BE STRICTLY LIMITED TO ONE HUNDRED U.S. DOLLARS ($100.00).
You will indemnify, defend and hold Thales and its affiliates (including any respective officers, directors, employees, contractors, successors and assigns) harmless from and against any loss, claim, liability, damage, fine, penalty, expense, action or cause of action (including reasonable attorneys’ fees) related to any third party claim that arises out of or results from your acts or omissions relating to any Application(s) or your use of the Site, or from any breach of your representations, warranties or obligations set forth in this Agreement (collectively, "Claim(s)"). You will pay any reasonable attorneys’ fees and all damages so awarded by a court of competent jurisdiction or consented to in a settlement agreement between you, on behalf of Thales, and such third party.
You will not consent to the entry of a judgment or settlement of a Claim without Thales’ prior written consent. You will use counsel reasonably satisfactory to Thales to defend each Claim. If Thales reasonably determines that a Claim might adversely affect it, then Thales may take control of the defense without limiting your indemnification obligations. Your obligations under this Article 15 are independent of your other obligations under the Agreement.
This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of New York and the federal laws of United States of America, without regard to the conflicts of laws provisions thereof. The parties specifically disclaim application of the UN Convention on Contracts for the International Sale of Goods. Any dispute or claim arising out of or in connection with this Agreement, including the determination of the scope or applicability of this Agreement to arbitration, shall be submitted to settlement proceedings under the International Chamber of Commerce’s Alternative Dispute Resolution Rules. If the dispute or claim has not been settled within two (2) months following the filing of a request for alternative dispute resolution pursuant to said rules, then the dispute or claim will be determined by arbitration. The International Chamber of Commerce will administer the arbitration pursuant to its Arbitration Rules by one (1) arbitrator appointed in accordance with such rules. A judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of arbitration will be in Orange County, California and the language used for such arbitration shall be English. Either Party may seek interim or provisional relief in any court of competent jurisdiction if necessary to protect the rights or property of that party pending the appointment of the arbitrator or pending the arbitrator’s determination of the merits of the dispute. The arbitration award will be in writing and will specify the factual and legal basis for the award. The arbitration award will be final and binding upon the parties.
17. EXPORT CONTROL
You may not export or re-export any Information, Thales Confidential Information, or any other product, service, data, or materials offered on the Site in violation of any applicable export, customs, or homeland security laws and regulations, including by way of example but not limitation the export, customs, and homeland security laws and regulations of the United States.
a. If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, so that this Agreement shall remain in full force and effect. Thales will not accept any counter-offers to this Agreement, and all such counter-offers are hereby categorically rejected. Thales’ failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by Thales of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between Thales and you or any other party be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties. This Agreement will bind your successors but may not be assigned, in whole or part, by you without the prior written approval of Thales. Any non-conforming assignment shall be null and void. English shall be the sole language for the interpretation and application of this Agreement and any modifications or documents related hereto. Oral amendments to this Agreement are null and void.
b. Integration: This Agreement shall constitute the entire agreement between you and Thales with regard to the subject matter herein, and any and all other written or oral agreements or understandings previously or contemporaneously existing between you and Thales with respect to such subject matter are hereby superseded and voided.
c. Order of Precedence: Article 18.b shall not apply to the limited extent that you and Thales have entered into a separate written agreement pertaining to games and/or applications for Thales’ in-flight entertainment system. To the extent of any conflict or inconsistency between this Agreement and such separate written agreement, the separate written agreement shall take precedence. However, for the avoidance of doubt, this Agreement shall remain legally binding.
d. Relationship of Parties: The parties are independent contractors and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
e. Notices: Any notices required from you pursuant to this Agreement shall be valid only if sent in hard-copy form to:
Thales Avionics, Inc.
Attn: Legal & Contracts Department
Irvine, CA 92618-3105
with copies to its Procurement and Media Departments at the above address.
f. Interpretation: You and Thales agree that no provision herein shall be construed nor interpreted for or against either party on the grounds that such provision, or any other provision, or this Agreement in whole or in part was purportedly prepared or requested by either party. You and Thales agree that no principle of contra proferentum, nor any similar or related principle of contractual interpretation, shall apply to this Agreement.
Thales Application Portal Developer and Licensing Agreement - Version: 2.1. May 17, 2013
Copyright © 2013. Thales Avionics, Inc. All Rights Reserved.