IData® Terms & Conditions

Commercial Services
Terms and Conditions

The quotation to which these Terms and Conditions of Sale are attached (the "Quote") is an offer to sell the quoted services (the "Services") to the named purchaser (the "Buyer"), conditional on the Buyer's agreement to the terms and conditions set forth below, and ENSCO Avionics agrees to sell the same only upon these terms and conditions. Except as specifically provided otherwise below, this document constitutes the entire agreement of the parties with respect to the purchase and sale of the Services and supersedes all prior understandings or agreements, whether written or verbal. No term or condition of Buyer's order inconsistent with the terms and conditions hereof shall be binding on ENSCO Avionics. Any additional or different terms, including but not limited to those on Buyer's purchase orders (the "Purchase Orders"), are hereby rejected by ENSCO Avionics and disclaimed by Buyer. Any amendment to these terms and conditions must be in writing, must be approved by ENSCO Avionics. Unless otherwise specified in the Quote, or unless withdrawn earlier by ENSCO Avionics, the Quote will expire thirty (30) days from the date issued.
 

1. PRICES. (a) Prices in the Quote are in U.S. dollars, include packaging for domestic or international commercial shipment, as appropriate, and are exclusive of any other amounts, including without limitation fees for export, special packaging, transportation, and insurance and are payable as per the Quote. (b) Prices do not include any taxes, customs duties, or tariffs. When ENSCO Avionics has the legal obligation to pay or collect any such taxes, duties or tariffs, the appropriate amount shall be paid by Buyer unless Buyer provides ENSCO Avionics with a valid exemption certificate. Buyer agrees to indemnify and hold ENSCO Avionics harmless for any liability for any tax, duty or tariff in connection with the sale, as well as the collection or withholding thereof, including penalties and interest.
    
2. ORDER ACCEPTANCE. Purchase Orders are subject to formal acceptance in writing (via email, by letter, or fax) by ENSCO Avionics’ contractual representative even if received elsewhere by a salesperson, selling agent, or other representative. ENSCO Avionics will use commercially reasonable efforts to confirm or reject any Buyer Purchase Order within five (5) business days of receipt by ENSCO Avionics’ contractual representative.
    
3. PAYMENT TERMS. (a) ENSCO Avionics will invoice Buyer for each shipment. The amount invoiced will include the price of the Services plus all applicable taxes, fees, transportation, insurance, and other fees or charges. If all Services in Buyer’s Purchase Order are not shipped at the same time, ENSCO Avionics will invoice Buyer at the time of shipment for the Services being shipped. Payments shall be remitted to: ENSCO Avionics, Inc., PO Box 1780, Springfield. VA 22151-1780 (b)Payments are due thirty (30) days after the date of invoice. (c) Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law. (d) ENSCO Avionics shall not be liable under any warranty stated herein if the purchase price has not been paid in full. (e) ENSCO Avionics may offset amounts ENSCO Avionics owes to Buyer against amounts Buyer owes to ENSCO Avionics, whether under the same or a different Purchase Order.
    
4. ACCEPTANCE OF SERVICES. Acceptance of services shall occur immediately upon completion unless buyer provides written notification of nonconformity within fifteen (15) calendar days of completion.
    
5. WARRANTIES EXCLUSIVE. To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. ENSCO Avionics’ warranties herein convey to Buyer and to the ultimate end-user (the "End-user"), but are not extended to any other third party. ENSCO Avionics neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of its Products or performance of Services. Replacement Products assume the warranty status of the Product being replaced and have no separate or independent warranty of any kind. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, ENSCO Avionics MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. ENSCO Avionics SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
    
6. LIMITATION OF LIABILITY. ENSCO Avionics', OR ITS AFFLIATES’ OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES UP TO BUT NOT TO EXCEED THE PURCHASE PRICE OF THE SERVICES. IN NO EVENT SHALL ENSCO Avionics BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ENSCO Avionics HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential element in setting the product price. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply or fully apply to Licensee.
    
7. BUYER CHANGE ORDER AND CANCELLATION. Any and all changes to Buyer’s Purchase Orders must be provided by a written (paper-based or electronically transmitted) notice from Buyer. Any change order increasing the purchase quantity is subject to acceptance by ENSCO Avionics’ contractual POC.
    
8. CANCELLATION FOR DEFAULT. ENSCO Avionics may, upon written notice to Buyer, cancel any or all Buyer Purchase Orders effective immediately if: (i) Buyer fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has been given; (ii) Buyer fails to pay for purchases in accordance with the terms stated herein; (iii) Buyer ceases doing business as a going concern, makes an assignment for the benefit of creditors, is unable to pay its debts as they become due, files a voluntary petition in bankruptcy, is adjudicated to be a bankrupt or insolvent debtor, files a petition seeking for itself any reorganization, or consents or acquiesces in the appointment of a trustee, receiver or liquidator; or (iv) any proceeding seeking involuntary reorganization, or similar relief is filed against Buyer that is not dismissed within thirty (30) days after filing, or if any trustee, receiver or liquidator of Buyer or any substantial part of its business assets or properties is appointed without ENSCO Avionics’ consent or acquiescence and such appointment is not vacated within thirty (30) days after such appointment. Any cancellation pursuant to this clause will be in addition to and not in lieu of any other remedies available to ENSCO Avionics at law or in equity.
    
9. EXPORT COMPLIANCE. Buyer acknowledges that the Products are subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations. Buyer shall comply strictly with all U.S. export laws and regulations and assumes sole responsibility for obtaining required export or re-export licenses at Buyer's sole risk, cost and expense. Buyer shall not directly or indirectly export, re-export or transmit any Products to any country or foreign national thereof to which such export, re-export, or transmission is restricted or prohibited. Buyer shall indemnify and hold ENSCO Avionics harmless against any liabilities suffered by ENSCO Avionics for any violation of this provision. Buyer agrees to furnish an End-user Statement or End-User Certificate for any Product if requested by ENSCO Avionics prior to the date of shipment.
    
10. U. S. GOVERNMENT USE; RESTRICTED RIGHTS. ENSCO Avionics Hardware, Software, and Integrated Products are Commercial Off-the-Shelf ("COTS") items and any accompanying documentation has been developed entirely at private expense. They are delivered and licensed as "commercial computer software" as defined in DFARS 252.227-7014 (Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "restricted computer software" as defined in FAR 52.227-19 (Jun 1987), or any equivalent agency regulation or contract clause, whichever is applicable. Buyer or its EndUser has only those rights provided for such Software and any accompanying documentation by the applicable FAR or DFARS clause and the applicable ENSCO Avionics standard software license.
     
11. GOVERNING LAW, VENUE, LANGUAGE AND EXPENSES. The transactions contemplated herein shall be governed in all respects by the laws of the Commonwealth of Virginia without regard to conflicts of law rules. In the event that a dispute arises, Buyer and ENSCO Avionics hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in Fairfax County, Commonwealth of Virginia, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of these terms and conditions. The parties also hereby confirm that, in the case of any conflict or claim that results in litigation between the parties related to the sale of ENSCO Avionics Services, all costs associated with said litigation, including legal fees, incurred by the prevailing party, shall be paid by the opposing party.
     
12. FORCE MAJEURE. ENSCO Avionics will be excused from any obligation to the extent performance is prevented by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other cause beyond ENSCO Avionics’ reasonable control.
     
13. LICENSE AGREEMENTS. Notwithstanding anything to the contrary herein, to the extent the Services are delivered with an ENSCO Avionics or Third Party Product license agreement(s) (the "License Agreement(s)"), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent, there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement.
     
14. CONFIDENTIAL INFORMATION. Buyer acknowledges that Products contain a combination of trade secret, know-how, patent, proprietary, and confidential information of a commercial or technical nature (“Confidential Information”), and are valuable property of ENSCO Avionics. Buyer agrees to protect Confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of ENSCO Avionics (or its licensors, if any). Buyer shall not reverse engineer any Products.
     
15. PUBLICITY AND USE OF ENSCO AVIONICS MARKS. Buyer shall not release any publicity, advertisement, or news release regarding any contract, subcontract or purchase order with ENSCO Avionics without the express written consent of ENSCO Avionics. Buyer shall not use any ENSCO Avionics trade/service marks or trade names (collectively “marks”) for any purpose whatsoever without the express written consent of ENSCO Avionics, except as expressly permitted by the rules of use set forth in ENSCO Avionics’ website.
     
16. ASSIGNMENT. ENSCO Avionics may freely assign or pledge the payments due (and the documentation supporting such payment obligation) from Buyer under the applicable Purchase Order, and may assign all of its other rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer's consent prior thereto. In the event of an assignment, ENSCO Avionics shall be discharged of any further liability pursuant to the affected Purchase Orders. Buyer may not assign its rights or delegate its obligations under any or all of its Purchase Orders unless ENSCO Avionics’ written consent is obtained prior thereto and any such assignment without such consent shall be void.
     
17. SEVERABILITY. If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions.
     
18. SURVIVAL OF TERMS. The termination or cancellation of any Buyer Purchase Order shall not affect the parties' obligations and rights hereunder which by their nature should be understood to survive such termination or cancellation.

Standard Commercial Software License
Terms and Conditions

LICENSEE’S INSTALLATION AND USE OF THE SOFTWARE INDICATES LICENSEE’S CONSENT TO BE BOUND BY THE LICENSE TERMS SET FORTH BELOW.

1. DEFINITIONS
   When used in this License, the below defined words are limited to the following meanings:

1.1 “Customer Application” means any application, graphic program code, or IData^® generated data file derived or created by the Licensee using the Software, including without limitation any portions or components of larger applications.

1.2 “Documentation” means the Software User Manual(s), software-enabled help files, advice available from ENSCO Avionics that is provided online or through the Internet, together with such other Software literature that may be provided by ENSCO Avionics to Licensee.

1.3 “Windows Development” means a PC-based computer system running the Windows^® operating system used to develop the Customer Application.

1.4 “Target Platform” means a single combination of CPU type (e.g., PowerPC, IA32, ARM11), operating system (e.g., Windows, Linux, VxWorks, embedded Linux, Green Hills Integrity, PikeOS, etc.), GPU (e.g., NVIDIA NV17GLM, ATI M9, etc.), and Application Programming Interface (OpenGL, OpenGL-ES SC, or OpenGL-ES) implicitly or explicitly identified within the terms of an executed agreement or license between ENSCO Avionics and Licensee.

1.5 “Licensee” means that licensed individual, organization or entity that is the purchaser of this license excluding any of Licensee’s affiliates, parent corporations, subsidiaries, and other organizations, divisions and groups, and in some cases locations, unless specifically identified herein or by separate agreement.

1.6 “Software” means the IData^® Product Line of software tools and other software programs developed at private expense by ENSCO Avionics and other third party supplier software programs (each tool or software program a Component). Components that Licensee receives as part of the Software may include a separate end-user license agreement. In the event of inconsistencies between this License Agreement and any Component License Agreement, the terms of this License Agreement shall control. Where the Software contains third party software programs, such third party software is provided for Licensee to use as a convenience and Licensee’s use is subject to the terms and conditions of any license agreement contained in that software.

2. PAYMENT TERMS

2.1 ENSCO Avionics will invoice Licensee for each shipment. The amount invoiced will include the price of the Products and/or Services plus all applicable taxes, fees, transportation, insurance, and other fees or charges. If all Products in Licensee’s Purchase Order are not shipped at the same time, ENSCO Avionics will invoice Licensee at the time of shipment for the Products being shipped. Payments should be remitted to: ENSCO Avionics, Inc., Accounts Receivable, PO Box 1780, Springfield, VA 22151-1780.

2.2 For Licensees with approved credit applications on file with ENSCO Avionics and are currently in good standing with ENSCO Avionics, with respect to payment history, payments are due thirty (30) days after the date of invoice.

2.3 For all other Licensees, cash in advance of the date of performance of Services or shipment of Products is required by wire transfer or letter of credit.

2.4 Any unpaid due amounts will be subject to interest at 1.5% per month, or if less, the maximum rate allowed by law.

2.5 Unless otherwise agreed to by ENSCO Avionics, for Products that are to be exported, payment must be by a confirmed, irrevocable letter of credit, sufficient to cover the full amount of the invoice, and shall be made against Licensee’s invoice upon presentation of ENSCO Avionics shipping documents.

2.6 ENSCO Avionics shall not be liable under any warranty stated herein if the purchase price has not been paid in full.

2.7 ENSCO Avionics may offset amounts ENSCO Avionics owes to Licensee against amounts Licensee owes to ENSCO Avionics, whether under the same or a different Purchase Order.

3. INSTALLATION AND ENABLING OF THE SOFTWARE FOR DEVELOPMENT OF CUSTOMER APPLICATIONS

3.1 The Licensee may install a single copy of the Software on a single computer for purposes of development of Customer Applications. The Licensee may make one periodically updated archival copy of the Software provided that such archival copy of the Software includes all copyright(s), logo(s), trademark(s) and other mark(s), proprietary legends and notices contained in the original Software.

3.2 In order to use the newly installed Software, the Licensee must enable the Software by contacting ENSCO Avionics through ENSCO Avionics’ website or via telephone to receive the software enabling key. Additional information on enabling the Software is available in the Documentation. Permanent license keys are only distributed after payment of the licensee’s invoice.

3.3 The Software may be transferred to another computer only if it has been completely removed from the previous computer. In order to receive a new enabling key, the Licensee must certify to ENSCO Avionics in writing that the earlier installation has been removed, and the Software Support Agreement must be current. This software can only be used or transferred to another computer when affiliation is within the same relative geographical based divisional organization’s original licensed server.

4. LICENSE GRANT, RIGHTS AND LIMITATIONS

4.1 General License Grant. Upon receipt of payment by ENSCO Avionics of all applicable license fees, the following License Grant shall apply. ENSCO Avionics grants to Licensee as an individual, a personal, nonexclusive license to use the Software, and to make and use copies of the Software for the purposes of designing, developing, testing, and demonstrating Licensee’s software product(s), provided that Licensee is the only individual using the Software.

If Licensee is an entity, ENSCO Avionics grants to Licensee a personal, nonexclusive license to use the Software, and to make and use copies of the Software, provided that for each individual using the Software within Licensee’s organization, Licensee has acquired a separate and valid unlock code or floating license for each such individual.

4.2 Evaluation License. When licensed for the purpose of evaluation, Licensee is hereby granted a non-exclusive, non-transferable, pre-defined and time-limited license with the right to use the Software solely for the purpose of evaluating the functionality, capability and performance for the intended uses of the Software in Licensee’s business environment for potential purchase of a permanent license. During the evaluation period, Licensee may derive or create Customer Applications for use under various operating systems solely for the purpose of evaluating the Software, and in no case shall Licensee distribute any such Customer Application(s). Upon expiration of the evaluation period, Licensee has no right to retain, use or have beneficial use of, or distribute or sell any such Customer Application(s) unless specifically agreed upon by ENSCO Avionics in writing.

4.3 Windows Development. Licensee may purchase a Perpetual or Program License for Development. A Perpetual License is subject to the use and/or transfer limitations of 3.3. A Program License is not subject to any restrictions identified in 3.3. The type of License shall be identified in the Licensee Purchase Order. Subject to the terms and conditions of this Agreement and payment of all applicable license fees, Licensee is hereby granted a non-exclusive, non-transferable license with the all the rights and limitations of use, limited warranties, terms, conditions, and prohibitions of this License Agreement. Licensee may derive works and create an unlimited number of Customer Applications for use under the Target Platform using the Software provided that the Customer Application(s) protect ENSCO Avionics’ proprietary rights and credit ENSCO Avionics by ensuring that all copyrights, trademarks, limited use rights, logos, and other proprietary legends and notices are reproduced in the Customer Application(s). Licensee may distribute such Customer Application(s) with the necessary IData^® Binary Runtimes if licensed for runtime use. All terms and conditions as stated below for Target Platform apply.

4.4 Target Platform. Licensee may derive works and create Customer Applications for use on a Target Platform, and is authorized to deploy Licensee’s Application(s) upon receipt of payment to ENSCO Avionics for the required ENSCO Avionics Right to Use (RTU) Licenses. Upon payment of the proper quantity of RTU Licenses, Licensee may derive works and create Customer Applications for use on Target Platforms using the Software provided that the Customer Application(s) protect ENSCO Avionics' proprietary rights, and credits ENSCO Avionics by ensuring that all copyrights, trademarks, limited use rights, logo, and other proprietary legends and notices are reproduced in the Customer Application(s) with the necessary IData Binary Runtimes if licensed for runtime use only. ENSCO Avionics grants to Licensee a license to distribute on an RTU basis. Customer Applications for use on a single Target Platform specified implicitly or explicitly in the terms of the Purchase Agreement. Prior to commercial deployment, ENSCO Avionics will provide Licensee with current pricing for RTU Licenses.

Audit and verification of deployed software, by authorization of an RTU License, on the Target Platform shall be a joint effort between Licensee and ENSCO Avionics. No more frequent than once a year, Licensee shall provide ENSCO Avionics an accurate accounting of deployed Target Platforms. ENSCO Avionics shall provide the accounting document to Licensee. If the accounting document is not returned on the agreed upon date, ENSCO Avionics reserves its right to conduct an audit at Licensee’s premises to verify Licensee’s usage of the Software.

5. PERMITTED USE OF IDATA® SAMPLES

5.1 IData Samples may be modified by the Licensee for use in embedded applications and Customer Applications, which may be copied and distributed only as permitted in this License.

5.2 The IData Samples may otherwise not be copied or used. In no case may the Licensee distribute any IData Sample(s) in a stand-alone form.

6. SOFTWARE WARRANTY

6.1 General. The Software Warranty, Remedies and Exclusions are applicable to all licensed Software components purchased without a separately purchased Software Support Agreement.

6.2 Limited Warranty for Commercial Software. ENSCO Avionics warrants to Licensee that for a period of ninety (90) days from the date of original shipment from ENSCO Avionics, the Software, when properly installed according to the applicable Software Documentation, will perform in substantial conformance to the stated specifications provided in the Software Documentation (with nonconformance to be determined and established by ENSCO Avionics exclusively via applicable ENSCO Avionics performance verification testing).

6.3 Remedy for Nonconforming Software. If, during the applicable Warranty Period, (a) the Software does not substantially conform to the applicable specifications provided in the Software Documentation, (b) such nonconformity materially affects the functionality of the Software, and (c) ENSCO Avionics receives notice of such nonconformity from the Licensee via the ENSCO Avionics Support website (www.ENSCO Avionics.com/support) or in writing within the Warranty Period, ENSCO Avionics will use reasonable commercial efforts to remedy the nonconformity by repairing or replacing the nonconforming Software. In the event repairing or replacing the Software is not commercially reasonable, ENSCO Avionics may, at its sole discretion, terminate the license to the Software and refund the fees received by ENSCO Avionics from Licensee for the nonconforming Software, prorated for usage. The remedies set forth herein shall be Licensee’s sole and exclusive remedy, and ENSCO Avionics’ entire liability for breach of this limited warranty.

6.4 Exclusions. The foregoing warranties do not apply to any nonconformance in the Software (a) resulting from modifications, repairs or alterations, except by ENSCO Avionics or its authorized representative; (b) resulting from other hardware or software products; (c) caused by a product for which ENSCO Avionics is not responsible; (d) associated with any non-ENSCO Avionics products, including those that ENSCO Avionics may procure and provide with or integrate with the Software at Licensee’s request; (e) caused by operation or use of the Software outside of its intended use as provided in the Software documentation; (f) caused by misuse, abuse, negligence, accident or as a result of being subjected to unusual physical, electrical or environmental stress; or (g) if the affected Software has not been maintained in accordance with all handling, operating and maintenance instructions supplied by ENSCO Avionics. Additionally, the warranties set forth herein do not apply (i) to error corrections or updates of the Software after expiration of the limited Warranty Period, (ii) demonstration or evaluation copies of the Software, or (iii) if the Software product identification label has been removed or altered.

7. DISCLAIMER OF OTHER WARRANTIES.
   To the fullest extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. ENSCO Avionics’ warranties herein extend to Licensee only and not to any other third parties. ENSCO Avionics neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance, or use of the Software or performance of services. Replacement Software assumes the warranty status of the Software being replaced and has no separate or independent warranty of any kind. Because the Software is inherently complex, ENSCO Avionics makes no warranties or representations that the operation of the Software will be uninterrupted or error free, or that the Software or the results produced will meet Licensee’s needs or expectations. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND ENSCO Avionics MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ENSCO Avionics SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
    
8. LIMITATION OF LIABILITY.
   ENSCO AVIONICS’ OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS LICENSE SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES UP TO BUT NOT TO EXCEED THE PURCHASE PRICE OF THE SOFTWARE LICENSE. IN NO EVENT SHALL ENSCO AVIONICS BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ENSCO AVIONICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential element in setting the product price. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply or fully apply to Licensee.
    
9. LICENSE RESTRICTIONS.

9.1 Disabling the software enabling key protection of the Software is expressly prohibited.

9.2 Licensee shall not modify, adapt, translate, rent, sublease, assign, loan, or sell the Software or create derivative works based upon the Software or any part thereof, except as expressly permitted in this License.

9.3 Licensee shall not de-compile, disassemble, or reverse engineer the Software or any part thereof. No ENSCO Avionics trademark or other identifying mark, copyright, patent or patent pending notices, or proprietary rights notices may be altered or deleted from any copy of the Software or Documentation.

9.4 Licensee shall not circumvent the license mechanism by any means, including the distribution of DLLs or other binaries that encapsulate or wrap the Software’s functionality for application development by non-license holders.

9.5 The Software and Documentation shall not be used, disclosed, sold, or transmitted, except as expressly permitted herein.

9.6 Use of the Software or Documentation not expressly permitted by this Agreement is prohibited.

9.7 Licensee shall not permit or allow any third party to use the Software for application development either directly or through the use of a wrapper library, or dynamically linked library, or other means. Licensee may not use the Software for the benefit of any third party, except as expressly permitted herein. No remote access, time-share, multiplexed, remote desktop, or service bureau use of the Software is permitted, except as provided by valid ENSCO Avionics supplied network-based floating license mechanisms.

9.8 Licensee acknowledges that the Software contains intellectual property and is the proprietary property of ENSCO Avionics and its suppliers. Documentation and associated information provided by ENSCO Avionics, whether of a commercial or technical nature (collectively “Confidential Information”), constitute valuable and confidential property of ENSCO Avionics. Licensee agrees to protect Confidential Information with the same confidentiality protections as are used or should be used for its own confidential information, but in no event less than reasonable and prudent care.

9.9 Licensee shall not publish data on the Software, including performance, functionality, usability, compatibility or aspects of the Software, nor publish images or video derived from the Software, except within Licensee’s own organization without the prior written consent of ENSCO Avionics.

9.10 In addition to the copy of the Software stored on the hard drive of Licensee’s computer, Licensee may make one archival copy of the Software for backup purposes. Making any additional copies of the Software by any means, including electronic transmission, or allowing any other person to make a copy, is prohibited, as is giving copies of Software to another person or entity, including without limitation a parent company or affiliate of License.

10. FEES. ENSCO Avionics shall have the right to collect all unpaid amounts due for the Software, plus interest at the highest legal rate, its cost of collection, and reasonable attorney’s fees. This License is subject to immediate termination if all required license fees are not paid in full in accordance with the payment terms in the Purchase Agreement.
     
11. TERMINATION. Without prejudice to any other rights, ENSCO Avionics may terminate this License immediately if Licensee is in breach of any term of this License. Notwithstanding the foregoing, ENSCO Avionics may waive this right under certain circumstances provided Licensee remedies such breach within ten (10) days of written notification.
     
12. CONSEQUENCES OF TERMINATION

12.1 Upon License termination under condition of breach, Licensee shall cease to use the Software and Documentation and shall, at ENSCO Avionics’ direction, either return to ENSCO Avionics or destroy the Software and Documentation together with all copies and all related materials, and shall certify such destruction in writing to ENSCO Avionics.

12.2 Termination shall not affect existing obligations of Licensee for payment of monies then due. Termination shall not affect those obligations and limitations, which by their nature and meaning survive, including without limitation, those relating to ENSCO Avionics’ intellectual property, confidentiality, prohibitions and restrictions regarding the Software, the disclaimers of warranties and damages, and limitations on liability.

13. GENERAL

13.1 Reservation of Rights and Ownership. The Software is protected by copyright and other intellectual property laws and international treaties, and is licensed, not sold. This License confers no title, ownership or other intellectual property rights in the Software to Licensee, and ENSCO Avionics reserves to itself (and to its suppliers, as applicable) all such rights not expressly granted to Licensee hereunder.

13.2 Relationship. The relationship created hereby is of Licensor and Licensee.

13.3 No Rights in Third Parties. This License is entered into for the sole benefit of ENSCO Avionics and the Licensee and, where permitted above, their permitted successors, executors, representatives, administrators, and assigns. Nothing in this License shall be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other entity, including, without limitation, the general public or any member thereof, or to authorize anyone not a party to this License to maintain a suit for personal injuries, property damage, or any other relief in law or equity in connection with this License.

13.4 Amendments. No amendment or other modification of this License shall be valid unless pursuant to a written instrument referencing this License and signed by duly authorized representatives of each of the parties hereto.

13.5 Assignment. Neither party hereto may assign its rights or obligations under this License without the prior written consent of the other party, which consent shall not be unreasonably withheld. Provided, however, that ENSCO Avionics may assign this License Agreement to a corporate parent, subsidiary, an affiliate of ENSCO Avionics, or its successor in connection with a sale of its business without obtaining consent of any party. Subject to the foregoing, each and every covenant, term, provision, and agreement contained in this License Agreement shall be binding upon and inure to the benefit of the parties’ permitted successors, executors, representatives, administrators, and assigns. Any assignment attempted in contravention of this section will be void.

13.6 Claims. Any claim or remedy for a claim made by Licensee by reason of this License or the Software shall be interpreted in strict compliance with the remedies available herein, and shall be valid and enforceable to the extent that the specific remedy complies with the License. Any and all other claims against ENSCO Avionics shall be barred and unenforceable unless provided in writing within thirty (30) days of the date on which the subject matter becomes known to the Licensee.

13.7 Remedy for Material Breach. Notwithstanding any other remedies in this License or remedies available under the law, should Licensee breach its obligations under this License regarding prohibited or restricted uses, confidentiality, proprietary, or intellectual property rights, both parties agree that ENSCO Avionics, its suppliers or third party licensors will suffer immediate and irreparable harm, and shall be entitled to seek preliminary and final injunctive relief in addition to any other remedies available under law and inequity. In the event a dispute occurs resulting in a legal action to address a material breach by Licensee, ENSCO Avionics shall be entitled to its costs of action, including but not limited to court costs, reasonable attorney’s and expert witness fees, if any.

13.8 Severability. Each clause in this License shall be deemed severable and separately enforceable. In the event a provision in this License is held to be unenforceable by a court of competent jurisdiction, all other provisions in the License shall remain in effect and enforceable.

13.9 Governing Law. All questions concerning the validity, operation, interpretation, construction, and enforcement of any terms, covenants or conditions of this License shall in all respects be governed by and determined in accordance with the laws of the Commonwealth of Virginia without giving effect to the choice of law principles thereof. The United Nations Convention on the International Sale of Goods shall not apply to any action contemplated by this License. In the event that a dispute arises, Licensee and ENSCO Avionics hereby submit to the exclusive jurisdiction and venue of the courts in Fairfax County, in the Commonwealth of Virginia, in the United States of America.

13.10 Export Compliance. Licensee acknowledges that the Software is subject to United States export jurisdiction. Licensee agrees to comply with all applicable national and international laws and regulations that apply to the Software, including the U.S. Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”), as well as other end-user, end-use, and destination restrictions issued by the U.S. and other governments. Accordingly, Licensee expressly agrees not to transfer, export or re-export the Software (directly or indirectly) in contravention of such laws and regulations, and shall indemnify and hold ENSCO Avionics harmless against any liability (including attorney’s fees) arising out of Licensee’s failure to comply with the terms of this paragraph.

13.11 U.S. Government End-users. The Software and Documentation are “Commercial Items” as that term is defined in 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Software and Documentation are licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights granted pursuant to the terms and conditions of this License.

Software Support Agreement

This Agreement is between ENSCO Avionics, Inc. (ENSCO Avionics) and the Customer ("Licensee") purchasing the ENSCO Avionics Software Support Program (“Support Program”). Customer hereby agrees that the following terms and conditions (“Support Terms”) shall govern the delivery of Support by ENSCO Avionics to Customer under the Support Program with respect to applicable ENSCO Avionics software products (“Software”). Subject to the termination rights as set forth in Section 4 below, purchasing the Support Program indicates Customer’s acceptance of the terms and conditions contained in this Support Agreement. For new Licenses, this Support Agreement is effective thirty (30) days after receipt and acceptance of Customer’s order by ENSCO Avionics (“Commencement Date”) unless otherwise negotiated by ENSCO Avionics Contracts Department and the Customer. For annual support renewals see Article 5 - Renewals
 

1. Support. Support is accessed by addressing an email request to “idata_support@ensco.com” or “igl_support@ensco.com,” or via the ENSCO Avionics Support telephone line 877-825-4890. The email request is broadcast to the entire engineering staff of ENSCO Avionics and will be picked up by a development engineer for resolution, usually within a twenty-four (24) hour time frame. This engineer will “own” that customer call until the request is closed.
   
   Support shall include
   1. Questions regarding installation and operation of IData® products,
   2. diagnosis of problems and deficiencies of the Software and
   3. resolution of the problems and deficiencies of the Software. If, during the applicable support period (one year from Commencement Date),
   4. the Software does not substantially conform to the applicable specifications provided in the Software documentation,
   5. such nonconformity materially affects the functionality of the Software.
       
   ENSCO Avionics will use reasonable commercial efforts to remedy the nonconformity by repairing or replacing the nonconforming Software. In the event repairing or replacing the Software is not commercially reasonable, ENSCO Avionics may, at its sole discretion, terminate the license to the Software and refund the fees received by ENSCO Avionics from Licensee for the nonconforming Software and Support, prorated for usage.
   
   To receive current support from ENSCO Avionics, Customer (“Licensee”) must have fully paid for the support services, for all purchased licenses.  If Customer (“Licensee”) has fully paid for the support services, the Customer (“Licensee”) shall be considered current on its support and shall receive ENSCO Avionics Support Services.   Terms and conditions of this ENSCO Avionics Software Support Agreement shall apply.
    
2. Restrictions. ENSCO Avionics may limit or terminate the Support being provided if Customer uses the Support in an abusive or fraudulent manner, as determined by ENSCO Avionics in its reasonable discretion. Resale, assignment and transfer of ownership are strictly prohibited and will be grounds for termination of the Support Terms. ENSCO Avionics will only provide Support for incidents that are requested using the Online Support email request. A single support incident will be restricted to support on an issue that focuses on one aspect of the product, e.g., use of a specific documented feature of the product or assistance with a specific problem or error message. While this issue may involve other aspects of the product, addressing other aspects constitutes a separate issue and requires an additional support incident. A single support incident may involve multiple phone calls, emails and off-line research. ENSCO Avionics Engineering Personnel are responsible for determining what characterizes a single support incident. ENSCO Avionics Engineering Personnel will make every reasonable effort to resolve the issue, but ENSCO Avionics cannot guarantee that every issue will be resolved.
    
3. Exclusions. ENSCO Avionics shall not be required to provide any Support relating to problems or issues arising out of or from
   1. Customer’s use of the Software in a manner for which it was not designed
   2. damage to the computer on which the Products are installed
   3. customer’s negligence, misuse, or modification of the Software
   4. versions of Software other than the most recent version. ENSCO Avionics shall not be required to provide any Support for Software that is no longer listed on the price list as supported products, unless specific arrangements have been made prior to ENSCO Avionics acceptance of the customer order
   5. third-party or customer software applications, products and/or technologies, or
   6. conflicts related to replacing or installing hardware, drivers and software.

4. Term and Termination. Absent early termination for the reasons stated herein, this Support Agreement shall have a term of one (1) year from the Commencement Date.
   
   Notwithstanding anything to the contrary herein, these Support Terms may be terminated by ENSCO Avionics for failure of Customer to pay ENSCO Avionics the Annual Support Fee if such failure to pay continues for ten (10) days after ENSCO Avionics gives Customer written notice of such failure.
   
   ENSCO Avionics may also terminate these Support Terms if Customer materially breaches the terms of these Support Terms and fails to cure such breach within thirty (30) days of written notice.
   
   Customer acknowledges that ENSCO Avionics has the right to discontinue the manufacture and development of any of the Software and the Support for any Software, including without limitation the distribution of older Software versions, at any time in its sole discretion, provided that ENSCO Avionics agrees not to discontinue the Support for the Software during the current annual term of this Support Agreement, subject to the termination provisions herein. ENSCO Avionics reserves the right to alter Support from time to time, using reasonable discretion but in no event shall such alterations result in:
   1. diminished support from the level of support set forth herein
   2. materially diminished obligations for ENSCO Avionics
   3. materially diminished rights of Customer, or
   4. higher Annual Support Fees during the then-current term. ENSCO Avionics shall provide Customer with thirty (30) days prior written notice of any permitted material changes to the Support.
       
5. Renewals. Support is paid up front and will expire one year from the Commencement Date. At time of renewal, the renewal price will be determined by ENSCO Avionics most current pricing in effect.
    
6. Warranty and Disclaimer. ENSCO Avionics will use commercially reasonable efforts to provide Support in a professional manner, but ENSCO Avionics cannot guarantee that every question or problem logged by Customer can or will be resolved. Nothing in this Support Agreement shall be construed as expanding or adding to the warranty for the Software set forth in the Product End-User License Agreement or any other agreement with ENSCO Avionics governing use of the Software. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION, OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO CUSTOMER IN ITS JURISDICTION, ENSCO AVIONICS MAKES, AND CUSTOMER RECEIVES, NO WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATED TO OR ARISING IN ANY WAY OUT OF THIS SUPPORT AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES UNDER THIS SUPPORT AGREEMENT. ENSCO AVIONICS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    
7. Limitation of Liability. ENSCO AVIONICS’, OR ITS AFFILIATES’ OR ITS SUPPLIERS’ TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS SUPPORT AGREEMENT SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES UP TO BUT NOT TO EXCEED THE PURCHASE PRICE OF THE SUPPORT. IN NO EVENT SHALL ENSCO AVIONICS BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ENSCO AVIONICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential element in setting the product price. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply or fully apply to Licensee.
    
8. Additions. Any additional services added to this Support Agreement by written notice to Customer will be governed by the terms of this Support Agreement.
    
9. Governing Law, Venue, Official Language and Limitation on Actions. The provisions herein shall be governed in all respects by the laws of the Commonwealth of Virginia without regard to conflicts of law rules. In the event that a dispute arises, Customer and ENSCO Avionics hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in Fairfax County. Commonwealth of Virginia, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of this Support Agreement. No dispute or legal action arising under this Support Agreement may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
    
10. General. This Support Agreement may not be assigned by Customer. Any assignment in violation of the foregoing shall be null and void. This Support Agreement supersedes all other written and oral proposals, purchase orders, prior agreements, and other communications between Customer and ENSCO Avionics concerning the subject matter hereof and constitutes the entire agreement between ENSCO Avionics and Customer regarding provision of Support.