End-User Licence Agreement
for receipt and use of the AIreports
- The Parties
“Aviation Analytics” or “AA”
with company registration number 06475337 and registered address of 64 Main Street, Normanton on Soar, Leicestershire LE12 5HB.
“The Licensee” or “You”
the receiver and user of the Data who has confirmed its acceptance of the terms set out in this Licence pursuant to Clause 2.
2.0 Licensees Agreement
2.1 The Licensee confirms its agreement to the terms and conditions set out in this Licence by:
2.1.1 signing and returning the Order Form to AA in accordance with clause 4.1; and
2.1.2 continuing to use the Data thereafter during the Free Subscription Period (if any), Initial Subscription Period and any subsequent Subscription Period(s).
If you do not agree with the terms of this Licence you must not use the Data and must either return the hard copy of the Data to AA and/or delete any electronic version of the Data from your systems or Workstations.
- Definitions and interpretation
“Authorised Users” means the Licensee, those employed by the Licensee in accordance with a Contract of Service and/or any other person whom AA has provided its written consent to use the Data.
“Confidential Information” means secret or confidential commercial, financial, marketing, technical or other information (including without limitation information in or relating to the Data), know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the date of this Licence, together with any reproductions of such information in any form or medium or any part(s) of this information
“Data” means aviation intelligence provided by AA as either a pdf or data file and licensed by AA under this Licence, including any updates, new versions, or replacements subsequently provided.
“Free Subscription Period” means an initial period where the Licensee is entitled to access and Use the Data in the absence of payment of a Subscription Fee, the length of which (if any) will be determined by AA.
“Force Majeure Event” means an event beyond the reasonable control of the affected party including without limitation strike, lock-out, labour dispute, act of God, war, riot, acts of terrorism, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, illness or disease.
“Initial Subscription Period” means the first 12 month period for which a Subscription Fee is paid entitling the Licensee to access and Use the Data.
“Intellectual Property Rights” means patents, trademarks, trade names, design rights, copyright (including rights in computer software and moral rights), database rights, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world.
“Licence” means this end user licence agreement.
“Order Form” means the form to be signed by the Licensee that initiates a Subscription and confirms the Licensee’s agreement to the terms and conditions set out in the Licence.
“Subscription” means the period during which the Licensee is entitled to access and Use the Data by payment of a Subscription Fee for the Subscription Period(s) to include any Free Subscription Period.
“Subscription Fee(s)” means the sum specified (from time to time) in the Order Form(s) and payable by the Licensee entitling the Licensee to access and Use the Data during each Subscription Period.
“Subscription Period(s)” means the successive 12 month periods following any Free Subscription Period and the Initial Subscription Period during which the Licensee is entitled to access and Use the Data through payment of a Subscription Fee.
“Use” means the opening and reading of a pdf or data aviation intelligence file and subsequent internal use thereof by the Licensee and Authorised Users for informational purposes and for the purposes of the Licensees business only. For the avoidance of doubt, Use of the Data by a Licensee in any other circumstances by any other persons or for any other purposes requires the written consent of AA.
3.1 In this Licence unless the context otherwise requires:
3.1.1 words in the singular include the plural and vice versa
3.1.2 references to (a) a clause are to a clause of this Licence, (b) a party are to a party to this Licence, and (c) a statute or statutory provision includes any amendment, extension or re-enactment of such statute or provision.
- Subscription Fees
4.1 Once the Licensee signs and returns the Order Form to AA an invoice for the Subscription Fee (taking into account any Free Subscription Period) shall be issued to the Licensee and, save as provided in clause 11.4, the Licensee will have no right to cancel the Subscription during the Free Subscription Period (if any) and Initial Subscription Period.
4.2 Further Subscription Periods following the Initial Subscription Period shall automatically (subject to AA’s discretion) be granted unless the Licensee provides notice that it wishes to terminate the Licence no less than one month prior to the end of a Subscription Period. Once a new Subscription Period is granted then save for clause 11.4, the Licensee will have no right to cancel a Subscription and an invoice for the Subscription Period shall be issued by AA.
4.3 The Subscription Fees for a Subscription Period shall be paid annually in advance, without deduction or set off, within 30 days of dispatch of the invoice by AA.
4.4 The Subscription Fees payable are exclusive of applicable value added, sales, use, excise or any other Government taxes, all of which shall be additionally payable by the Licensee as is appropriate. Any bank charges incurred by AA in connection with the Subscription Fees will be for the Licensees account. Without prejudice to any other rights and remedies available to AA, it reserves the right to charge the Licensee (and the Licensee agrees to pay on demand):
4.4.1 interest on outstanding and overdue amounts as 2.5% per annum above the Bank of England’s base rate (from time to time) from the date 30 days following the date of dispatch of the invoice up until the date that payment is made in full; and/or
4.4.2 an amount equivalent to all reasonable costs and expenses (including without limitation legal fees and collection agency commissions) suffered or incurred by AA in connection with the recovery of overdue amounts from the Licensee; and/or
4.4.3 an administration fee of £120 plus value added tax for internal management and staff overhead time in dealing with the recovery of overdue amounts from the Licensee.
4.5 The parties acknowledge that the Subscription Fee properly represents the commercial price of the provision of the Data in accordance with this Licence.
- Grant and Scope
5.1 Subject always to the terms and conditions of the Licence and the payment of a Subscription Fee(s), AA hereby grants to the Licensee a non-exclusive, non-transferable, revocable licence for the Subscription Period(s) to:
5.1.1 Use and permit Authorised Users to Use the Data;
5.1.2 Use and permit Authorised Users to access the Data;
5.1.3 make, subject to the restriction set out at clause 7.3 below of this Licence, hard copies of the Data; and
5.1.4 make one working copy of the Data for backup purposes only, such copy to be subject to all terms and conditions of this Licence.
5.2 Use of the Data is licensed where the Licensee has purchased a Subscription to Use the Data.
5.3 For the avoidance of doubt, Use otherwise than in accordance with clause 5.2 shall be unlicensed; in particular, Use of any particular Data shall be unlicensed if the Licensee has entered into any arrangement or agreement with any supplier to obtain its Use by means of any other method of subscription not either contained herein or otherwise expressly approved in writing by AA.
5.4 The Licensee agrees to ensure that the Authorised Users are made fully aware of, understand and agree to abide by the terms of this Licence before they are allowed to Use the Data. The Licensee accepts full responsibility for the actions of its Authorised Users and agrees in relation to any action of any Authorised User that if it were an action of the Licensee that would constitute a breach of this Licence, the Licensee will have committed a breach of this Licence.
5.5 The Licensee shall be liable for any loss, damages, costs or other liability that AA incurs as a result of a breach of the Licence by the Licensee and/or an Authorised User.
5.6 The Licensee undertakes to:
5.6.1 use reasonable endeavours to monitor compliance and immediately upon becoming aware of any unauthorised use or other breach, inform AA and take all reasonable and appropriate steps, including disciplinary action, both to ensure that such activity ceases and to prevent any recurrence;
5.6.2 issue passwords and/or other access information (where required) only to Authorised Users and use all reasonable endeavours to ensure that Authorised Users do not divulge their passwords or other access information (where required) to any third party;
5.6.3 keep full and up-to-date records of all Authorised Users and their access details and provide AA with details of such additions, deletions or other alterations to such records as are necessary to enable AA to monitor Authorised Users access to the Data as required and as contemplated by this Licence;
5.6.4 ensure that only Authorised Users are permitted access to the Data.
- Intellectual Property Rights
6.1 All Intellectual Property Rights in the Data shall remain the property of AA or its licensors and suppliers. The Licensee shall acquire no Intellectual Property Rights in the Data (including without limitation the Data and/or any Intellectual Property Rights).
6.2 The Licensee undertakes that all material (including without limitation the Data and/or any Intellectual Property Rights) belonging to or under the control of the AA to which the Licensee gains access or receives directly or indirectly as a result of the operation of this Licence shall not be used or accessed by the Licensee, its Authorised Users or any other person acting on its behalf who has been given AAs written consent to Use the Data for any purpose other than as set out in this Licence.
6.3 The Licensee shall give prompt notice to AA if the Licensee becomes aware of any unauthorised use or exploitation of the whole or any part of the Data by any Authorised User or third party and shall procure that Authorised Users or any other person acting on its behalf do likewise.
6.4 All copies of Data made by the Licensee or its Authorised Users shall be the property of the AA regardless of the format of the copy.
7.1 The Licensee confirms that the rights set out at clause 5 above constitute the entire licence granted to the Licensee and that this clause 7 is not exhaustive and does not operate to prejudice the legal rights of AA or to exclude or limit the applicability of applicable law.
7.2 Hard copies of the Data must not be sold, hired or transferred in any way to a third party without the express permission of AA.
7.3 The Licensee undertakes:
7.3.1 not to make alterations to, or modifications of, the whole or any part of the Data nor permit the Data or any part of it to be combined with, or become incorporated in, any other data;
7.3.2 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Data;
7.3.3 to keep all copies of the Data secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Data;
7.3.4 to supervise and control use of the Data and ensure that the Data is used by the Authorised Users or any other persons whom AA has consented in writing may Use the Data in accordance with the terms of this Licence;
7.3.5 not to remove or alter the author’s names of AA’s copyright notices or other means of identification or disclaimers as they appear on the Data on all entire and partial copies of the Data in any form;
7.3.6 not to sell, hire out, sub-license, re-supply, loan or in any way transfer the Data to any third party other than an Authorised User or translate, merge, adapt, vary or modify the Data. Bundling of repackaging of any or all elements of the Data in any way is not permitted.
7.4.10 not to mount or distribute any part of the Data on any electronic network including without limitation the World Wide Web other than the Licensees intranet (if such intranet is provided by the Licensee).
8. Data Protection and Monitoring
8.1 Where the Licensee supplies AA with any information, for example, during any registration or subscription process, the following shall apply:
8.1.1 The Licensee authorises AA to use, store or otherwise process any personal information which relates to and/or identifies the Licensee and/or Authorised Users, (including, but not limited to, names and addresses), to the extent reasonably necessary for AA, its partners, successors (including the purchaser of the whole or part of its business), associates, sub-contractors or other third parties (together “Partner Companies”) to make available and/or to provide the Data to the Licensee and/or to Authorised Users. These Partner Companies may be located in countries outside the European Economic Area that do not have laws to protect information supplied to them.
8.1.2 AA may collect information about Licensee’s buying behaviour and if it sends to or receives from the Licensee personal correspondence such as e-mails or letters then it may collect this information into a file specific to Licensee (together, the various purposes set out in this clause 8.1 shall be known as the “Purposes”). All such information collected by Publisher shall be referred to in the Licence as “Personal Information”.
8.1.3 By entering into this Agreement, the Licensee agrees to the processing and disclosure of the Personal Information for the Purposes.
8.2 Without prejudice to AA’s other rights and remedies under the Licence, it shall have the right to verify the Licensee’s compliance with the Licence and/or any Licensee’s operating rules and/or to satisfy any law, regulation or authorised government request by carrying out an inspection at the Licensee’s offices. Upon reasonable notice and during normal office hours, the Licensee will allow AA and/or its representatives to carry out such an inspection at the Licensee’s offices (under its supervision). The Licensee will cooperate fully in the conduct of this inspection and will make available records, facilities and personnel as AA may reasonably require for that purpose and the Licensee shall fully comply with any reasonable directions AA makes as a consequence of such investigation.
- Term and Termination
9.1 This Licence shall become effective upon the occurrence of any of the events set out at clause 2.1 and will terminate on:
9.1.1 AA’s refusal to renew a Subscription in accordance with clause 4.2.
9.1.2 the service of notice by the Licensee that it does not want to renew a Subscription in accordance with clause 4.2; or
9.2 AA may terminate this Licence immediately on written notice if:
9.2.1 the Licensee commits a material or persistent breach of the Licence; or
9.2.2 the Licensee’s financial position is such that its directors, shareholders or creditors take or are entitled to take steps to institute formal insolvency proceedings of a type provided for by the Insolvency Act 1986 (or any similar or analogous legislation, whether under English law or otherwise), including without limitation administration, liquidation, administrative receivership, receivership, voluntary arrangement, scheme of arrangement or bankruptcy, or if the Licensee is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
9.3 AA may terminate this Licence for any reason by giving the Licensee not less than 90 days’ written notice.
9.4 On termination or expiry of this Licence pursuant to clauses 9.1 to 9.3 (inclusive), 11.4 and 14.8 all rights and obligations of the parties automatically terminate to include but not be limited to the right of Licensee, Authorised Users and any other person AA has given its written consent to Use the Data.
9.5 On termination of this Licence by AA as specified in clauses 9.1 to 9.3 (inclusive), 11.4 and 14.8, the Licensee shall immediately cease to distribute, or make available, the Data to Authorised Users and any other person AA has given its written consent to Use the Data and shall return or destroy all copies, including partial copies, of the Data supplied to it under this Licence.
9.6 On termination of this Licence by the Licensee in accordance with clause 11.4, AA shall forthwith refund the proportion of the Subscription Fee that represents the paid but un-expired part of the Subscription Period.
9.7 Termination shall be without prejudice to any rights of either party against the other which may have accrued up to the date of termination.
AA reserves the right to amend the provisions of this Licence. Details of any such amendments, and the date from which they will become effective, shall be listed on AA’s website. The Licensee should regularly check AA’s website for any updates. The terms of this Licence shall be deemed to have been varied from the date on which they are updated on AA’s website.
- AA undertakings
11.1 AA shall use reasonable endeavours to make the Data available to the Licensee at the frequency specified in the Order Form during a Subscription Period. AA will notify the Licensee at least thirty (30) days in advance of any anticipated specification change applicable to the Data.
11.2 AA reserves the right at any time:
11.2.1 to make changes or correction and to alter, update or upgrade any aspect of the Data;
11.2.2 to vary the technical specification of any of the Data or of any software included therein; and
11.2.3 to withdraw from the Data any item, or part of an item, for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. AA shall give written notice to the Licensee of such withdrawal.
11.3 AA shall be entitled to cease making Data (or for the avoidance of doubt, any part of the Data) available with immediate effect, where rights or data in such Data (or, for the avoidance of doubt, any part of such Data) are sourced from a third party and:
11.3.1 The Licence Terms are inconsistent with the terms on which AA is licensed by such third party to use such rights or data: or
11.3.2 AA loses the right to licence such data: or
11.3.3 AA is otherwise unable to contract with such third party in respect of the relevant data on terms acceptable to AA.
11.4 Where AA exercises its right to withdraw any substantial part of the Data under this clause 11, if the withdrawal results in the Data being no longer materially useful to the Licensee, the Licensee may, within thirty days of such notice, treat such changes as a breach of this Licence and provide no less than 30 days written notice that it wishes to terminate the Licence.
- Limitation of Liability and Indemnity
12.1 AA shall make all reasonable efforts to ensure that the Data is accurate and error free. However, AA cannot guarantee the accuracy of any information and content contained in the Data, which is provided on a strictly ‘as is’ basis. AA has no liability for any loss or damage whatsoever sustained by the Licensee as a result of using or relying on any information and content contained in the Data. In particular, the Licensee acknowledges that some Data will be obtained by AA from third parties that AA has no control over and that the AA will not be responsible for the content or accuracy of such third party data. In these circumstances separate licence terms may apply and the Licensee should review these carefully before agreeing to use the data to which those third party terms apply.
12.2 Under no circumstances shall AA (or an AA Representative) be liable to the Licensee or any other person, including but not limited to Authorised Users, for any special, exemplary, incidental. indirect or consequential damages of any character to include but not be limited to loss of data, profit, goodwill, anticipated savings, revenue or business (whether direct or indirect in each case), howsoever caused and even if foreseeable, arising under or in relation to this License or arising out of or in connection with Licensee’s access, viewing, or Use of, or reliance upon any Data. Irrespective of the cause or form of action, AA’s aggregate liability for any claims, losses, or damages arising out of any breach of this Licence shall in no circumstances exceed the Subscription Fee paid by Licensee to AA under this Licence in respect of a Subscription Period during which such claim, loss or damage occurred. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success of the effectiveness of other remedies. Regardless of the cause or form of action, the Licensee may bring no action arising from this Licence more than six (6) months after the cause of action arises.
12.3 In circumstances where Licensee suffers loss or damage arising out of or in connection with the use of the Data, AA accepts no liability for this loss or damage whether due to inaccuracy, error, omission or any other cause and whether on the part of AA or its servants, agents or any other person or entity.
12.4 Nothing in this Agreement shall limit AA’s liability for death or personal injury resulting from its negligence or from its fraudulent misrepresentation or any liability which cannot be excluded under the applicable law.
12.5 The Licensee shall indemnify AA and keep it fully indemnified against any claims, losses, damages, costs, expenses (including reasonable legal expenses) or other liability incurred by it in respect of any infringement of its rights (including intellectual property rights) arising from Licensee’s use of the Data.
12.6 The Licensee acknowledges that it is responsible for complying with local laws and regulations of the jurisdiction in which it uses and imports the Data. The Data should not be accessed or imported in any jurisdiction where for any reason the use or availability of the Data is prohibited. AA does not represent that the Data complies with laws in all jurisdictions.
12.7 AA’s liability for infringement of third party Intellectual Property Rights (if any) shall be limited to breaches of rights subsisting in the UK.
12.8 This Licence sets out the full extent of AA’s obligations and liabilities in respect of the supply of the Data. In particular, there are no conditions, warranties, representations or other such terms of any kind, either express or implied including but not limited to warranties of design, accuracy of the Data, merchantability or fitness for use for a particular purpose that are binding on AA except as specifically stated in this Licence. The Data is at all times supplied “as is”. Any condition, warranty, representation or other term concerning the supply of the Data which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
- Confidentiality and protection of Intellectual Property Rights
13.1 Each party shall use its best endeavours to safeguard the Intellectual Property Rights of the other party.
13.2 AA and the Licensee shall in relation to any Confidential Information disclosed to one of them by or on behalf of the other:
13.2.1 keep it confidential and not disclose it to any other party other than its professional advisers, employees, agents and contractors on a “need to know” basis,
13.2.2 apply to the Confidential Information no lesser degree of care than that which a reasonable person would take in protecting its own confidential information, and
13.2.3 use the Confidential Information only for the purposes of the Licence.
13.3 The obligations contained in Clause 10.2 shall not apply to Confidential Information:
13.3.1 which is lawfully available to the public otherwise than through breach of the Licence,
13.3.2 which was disclosed to one Party by a third party legally in possession of the Confidential Information and who was not restricted from disclosing it, or
13.3.3 which was independently created or already in the possession of a party.
13.4 AA and the Licensee agree to maintain the confidentiality of any data relating to the usage of the Data by the Licensee and its Authorised Users. Such data may be used solely for purposes directly related to the Data and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third parties.
14.1 Assignment and Sub-Licensing: Save as otherwise provided in this Licence the Licensee is not entitled to assign or sub-license to any third party any of its rights or obligations under this Licence without AA’s prior written consent. AA shall be entitled to assign or contract-out its rights and obligations under this Licence to any person provided only that AA shall give notice of such assignment in writing to the Licensee.
14.2 Severability: If any part, term or provision of this Licence not being of a fundamental nature be held illegal or unenforceable the validity or enforceability of the remainder of this Licence shall not be affected.
14.3 Rights of third parties: No right is granted to any person who is not a party to this Licence in their own right and the Parties declare that they have no intention to grant any such right.
14.4 Entire Agreement: This Licence supersedes and cancels all previous agreements and working arrangements whether oral or written, express or implied between the Parties in respect of or in connection with the matters referred to in this Licence.
14.5 No Waiver: No waiver of any term or condition of this Licence shall be effective unless made in writing and signed by the Party against which enforcement of the waiver is sought. The waiver of any breach of any term or any condition of this Licence shall not be construed as a waiver of any subsequent breach of a term or condition of the same or different nature.
14.6 Notices: Any notices to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post to the address of the addressee as set out in this Licence or to such other address as notified by either party to the other as its address for service of notices. All such notices shall be deemed to have been received within 14 days of posting.
14.7 Delay: Neither party’s delay or failure to perform any provision of this Licence, as result of circumstances beyond its control (including, without limitation, war, strikes, floods, governmental restrictions, power, telecommunications or Internet failures, or damage to or destruction of any network facilities) shall be deemed to be, or to give rise to, a breach of this Licence.
14.8 Force Majeure: Except in respect of a payment obligation, neither party will be held liable for any failure to perform any obligation to the other due to a Force Majeure Event provided the affected party notifies the other party in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under this Licence as soon as reasonably possible after the start of the Force Majeure Event. The affected party shall make all reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Licence. As soon as reasonably possible after the end of the Force Majeure Event, the affected party shall notify the other party in writing that the Force Majeure Event has ended and resume performance of its obligations under this Licence. If the Force Majeure Event continues for more than three months starting on the day the Force Majeure Event starts, either party may terminate this Licence by giving not less than 30 days’ notice in writing to the other party.
14.9 Survival: The obligations of the Parties under this Licence that the Parties have expressly agreed shall survive expiration or termination of this Agreement or that, by their nature, would continue beyond the expiration or termination of this Licence, shall survive the expiration or termination of this Licence for any reason. Without limiting the generality of the foregoing, the Parties intend that clauses 3, 6, 8, 12, 13 shall survive expiration or termination of this Licence.
14.10 Governing Law: This Licence shall be governed by and construed and interpreted in accordance with English Law and shall be subject to the exclusive jurisdiction of the English Courts except that AA may seek an interim injunction or other urgent relief in any court of competent jurisdiction. It is hereby agreed for the benefit of AA that the submission to the jurisdiction of the English Courts shall not (and shall not be construed so as to) limit the right of AA to bring legal proceedings in any other court of competent jurisdiction including without limitation the courts having jurisdiction by reason of the Licensee’s domicile. Legal proceedings by AA in any one or more jurisdictions shall not preclude legal proceedings by it in any other jurisdiction whether by way of substantive action, ancillary relief, enforcement or otherwise.