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
AND
(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
OR
(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
58
Discovery
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.
7.
SUPPORT
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.
8.
PUBLICITY
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.
9.
TERMINATION
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.
- AMENDMENTS TO THE AGREEMENT,
AND/OR WITHDRAWAL OF YOUR APPLICATION
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.
- CONFIDENTIAL INFORMATION AND
NON-DISCLOSURE
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.
- DISCLAIMERS
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.
- LIMITATION OF LIABILITY
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).
- INDEMNITY
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.
- GOVERNING LAW AND DISPUTE
RESOLUTION
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.
- MISCELLANEOUS
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
58 Discovery
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.