(END USER LICENSE AGREEMENT (“EULA”)
NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE SKYREGS ONLINE SERVICES IF YOU ARE AN AUTHORIZED USER IN AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS IN WRITING. OTHERWISE, YOUR USE OF THE ONLINE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS EXECUTED BETWEEN YOU AND NETWORK DESIGN, INC. (“NDi”)
The terms and conditions listed below govern use of the SkyRegs online services (the “Online Services”) and materials available therein (“Materials”) provided by Network Design, Inc. (“NDi”). The terms “you” and “your” in uppercase or lowercase shall mean the person or the entity entering into an EULA with NDi. The “EULA” shall consist of these terms and conditions, and the standard, transactional rates applicable to you (the “Price Schedule”).
1. GRANT OF RIGHTS; RESTRICTIONS ON USE
1.1 You and your Authorized Users (defined below in Section 2.1) are granted a nonexclusive, nontransferable, limited right to access and use the Online Services and Materials made available to you. The rights granted to each Authorized User are as follows:
(a) The right to electronically display Materials retrieved from the Online Services for the Authorized User's individual use (e.g., no Authorized User may network others via LANs, WANs, intranets or the Internet)
(b) The right to email, fax, download or make printouts using the commands of the Online Services and the right to create a printout of Materials accessed or downloaded by any other means (collectively, “Authorized Printouts”);
(c) With respect to Materials that are agency issued documents, agency memoranda, agency regulations or executive branch materials from the United States, its states, local governments, or territories (collectively, “Authorized Legal Materials”), the right to download using the commands of the Online Services and store in machine-readable form, primarily for that Authorized User's exclusive use;
(d) For the avoidance of doubt, downloading and storing Materials in an archival database is prohibited. The Online Services and the Materials are protected by copyright, intellectual property laws, and other laws that prevent unauthorized access and use. If you are not an Authorized User, you are not permitted to access or use the Online Services for any purpose whatsoever. If you nevertheless access and use the Online Services or Materials without authorization, your access and use will be governed by these terms and conditions and you will be liable to NDi for any breach of them as well as for unauthorized access and payment for use at the rates in the applicable Price Schedule.
1.2 To the extent permitted by applicable copyright law, you and your Authorized Users may make copies of Authorized Printouts and distribute Authorized Printouts and copies.
1.3 You may not exploit the goodwill of NDi, including its trademarks, service marks, or logos without the express written consent of NDi. Additionally, under no circumstances may you or any Authorized User offer any part of the Online Services or Materials for commercial resale or commercial redistribution in any medium or use the Online Services or the Materials to compete with the business of NDi.
1.4 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Online Services and Materials in any medium belongs to NDi. SkyRegs and the SkyRegs symbol are trademarks of NDi. Neither you nor your Authorized Users acquire any proprietary interest in the Online Services, Materials, or copies thereof, except the limited rights granted herein.
1.5 Neither you nor your Authorized Users may use the Online Services or Materials in any fashion that infringes the intellectual property rights, privacy rights or proprietary interests of NDi or any third party. Your use of the Online Services and Materials must comply with all applicable laws, rules and regulations.
1.6 Neither you nor your Authorized Users may remove or obscure the copyright notice or other notices contained in Materials.
1.8 Other provisions that govern use of the Materials are set forth in the applicable Price Schedule, online descriptions of files, online notices, and individual documents retrieved from the Online Services (collectively, the “Additional Terms”), all of which are incorporated by reference into this EULA.
2. ACCESS TO SERVICES
2.1 Only Authorized Users are eligible to access and use the Online Services and Materials (“Eligible Persons”). The term “Authorized User” means an Eligible Person who has been issued a SkyRegs ID. You agree that each SkyRegs ID may only be used by the Authorized User to whom NDi assigns it and that the SkyRegs ID may not be shared with or used by any other person. You will use reasonable commercial efforts to prevent unauthorized use of SkyRegs IDs and will promptly notify SkyRegs, in writing, if you suspect that a SkyRegs ID is lost, stolen, compromised, or misused. You may not provide access to the Online Services to any individuals identified on, OFAC's list of Specially Designated Nationals, the UK's HM Treasury's Consolidated List of Sanctions Targets, or the EU's Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions.
2.2 Use of the Online Services via mechanical, programmatic, robotic, scripted or any other automated means is strictly prohibited. Unless otherwise agreed to by NDi in writing, use of the Online Services is permitted only via manually conducted, discrete, individual search and retrieval activities.
2.3 To comply with local privacy, data protection and other laws, each SkyRegs ID is country specific and may not be used outside the country for which it is issued, except for short periods not to exceed 30 continuous days. If NDi suspects use of a SkyRegs ID outside the country of issue for a period in excess of 30 continuous days, NDi may suspend the SkyRegs ID or require you to use and pay for a SkyRegs ID for the relevant country.
2.4 The Online Services, Materials, and feature functionality within the Online Services may be enhanced, added to, withdrawn, or otherwise changed by NDi without notice.
3. LIMITED WARRANTY
3.1 NDi represents and warrants that it has the right and authority to make the Online Services and Materials available to you and your Authorized Users as authorized expressly by this EULA.
3.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 3.1, THE ONLINE SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND NDi AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
4.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services or any Materials available or not included therein, (b) the unavailability or interruption of the Online Service or any features thereof or any Materials, (c) your or an Authorized User's use of the Online Services or Materials, (d) the loss or corruption of any data or equipment in connection with the Online Services, (e) the content, accuracy, or completeness of Materials, all regardless of whether you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services.
4.2 “Covered Party” means (a) NDi and any officer, director, employee, subcontractor, agent, successor, or assign of NDi; and (b) each third party supplier of Materials, third party alliance entities, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or third party alliance entity or any of their affiliates.
4.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR MATERIALS OR THIS SUBSCRIPTION AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY.
4.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO NDi OR ITS THIRD PARTY SUPPLIERS.
4.5 Notwithstanding anything to the contrary in this Section 4: (a) If there is a breach of the warranty in Section 3.1 above, then NDi at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party's claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or Materials, asserted against you by such third party provided: (i) all use of the Online Services and Materials was in accordance with this EULA; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or Materials with or into other products or applications not approved by NDi; (iii) you give NDi prompt notice of any such claim; and (iv) you give NDi the right to control and direct the investigation, defense and settlement of each such claim. You, at NDi's expense, shall reasonably cooperate with NDi in connection with the foregoing.
(b) In addition to Section 4.5(a), if the Online Services or the operation thereof become, or in the opinion of NDi are likely to become, the subject of a claim of infringement, NDi may, at its option and expense, either: (i) procure for you the right to continue using the Online Services, (ii) replace or modify the Online Services so that they become non-infringing, or (iii) terminate this EULA on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed charges.
(c) The provisions of Sections 4.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein.
5.1 This EULA may be unilaterally modified by NDi. If any changes are made by NDI, they will only be applied prospectively.
5.3 You may terminate this agreement upon written notice to NDi if any change to this EULA is unacceptable to you. For termination to be effective under this Section 5.1, written notice of termination must be provided to NDi within 90 days of the effective date of the change. Continued use of the Online Services following the effective date of any change constitutes acceptance of the change but does not affect the foregoing termination right.
5.4 You or NDi may terminate this EULA at any time and for any reason. The effective date of termination shall be 10 days after the receipt of written notice of termination, unless a later date is specified in the notice. NDi may temporarily suspend or discontinue providing access to the Online Services to any or all Authorized Users in breach of this EULA without notice and NDi may pursue any other legal remedies available to it.
5.5 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by NDi. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Legal notices to NDi should be sent to Network Designs, Inc., Attn.: Dottie Kilcarr, 1651 Old Meadow Road, Suite 105, McLean VA 22102 USA.
5.6 The failure of you or NDi to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
5.7 Neither you nor any Authorized User may assign your rights or delegate your duties under this EULA without the prior written consent of NDi, which consent shall not be unreasonably withheld. This EULA and any amendment thereto shall be binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns.
5.8. You represent and warrant that you have complied with all applicable laws in supplying any personal data to NDi, including providing any required notices and obtaining any required consents and authorizations for NDi processing personal data.
5.10 The existence, formation, interpretation, operation and termination of this EULA, and all matters and disputes (whether contractual or non-contractual) related to or connected with the Agreement or its subject matter, is subject to the laws of the United States, Commonwealth of Virginia. The Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Commonwealth of Virginia Courts will have exclusive jurisdiction over all matters and disputes (whether contractual or non-contractual) related to or connected with this EULA or its subject matter. Nothing in this paragraph shall limit NDi’s rights to bring enforcement proceedings in another jurisdiction or to seek interim, protective or provisional relief in the courts of another jurisdiction. If you are a European Union consumer you will benefit from any mandatory provisions of the law of the EU member state in which you are resident. Nothing in the Agreement affects your rights as a consumer to rely on such mandatory provisions of local law.
5.11 This EULA will be enforced to the fullest extent permitted by applicable law. If any provision of this EULA is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this EULA.
5.12 Where applicable, each affiliated company of NDi has the right to assert and enforce the provisions of this EULA directly on its own behalf as a third party beneficiary.
5.13 This EULA constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations on that subject matter.
5.14.Beta Versions. If the Software is a beta version, you acknowledge and agree that (a) the Online Services may contain errors and defects and may not function as intended or in accordance with its specifications; and (b) you assume all risk in using the Online Services.