END USER LICENSE AGREEMENT
Last revised May 2017
1. Summary of Material Terms. As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
a. the APIs and each App that you acquire rights to is licensed, not sold to you, and that you may use the APIs and Apps only as set forth in this EULA;
b. the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
d. the Service is provided “as is” without warranties of any kind, and ForeFlight’s liability to you is limited;
e. the Service may require access to the following services on your mobile devices: GPS for location data; user notifications for push notifications, alerts, and icon badging.
f. if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” in Section 32.
2. Service Overview. The Service includes various aviation-related services. Through our ForeFlight-branded service offerings, the Service may include web- or mobile-app based flight planning and electronic flight bag tools to allow individual pilots and professional flight crews to plan and file flight plans, access pre-flight and in-flight weather, download and view electronic charts and maps, manage flight publications and documents, log flight time, and other functionality (the “ForeFlight Functionality”). Through our JetFuelX-branded offerings, the Service may include functionality to assist pilots in managing fuel cards, allowing them to enter discount fuel card information, compare fuel prices at various destinations, and submit fuel release requests (the “JetFuelX Functionality”).
3. Eligibility. You must be at least 18 years of age to use the Service. By agreeing to this EULA, you represent and warrant to us that you are at least 18 years of age, competent, and legally entitled to enter into this EULA, and you have not previously been suspended or removed from the Service. ForeFlight may terminate, or deny access to and use of, the Service, or any portion thereof, to any individual or entity for any reason, in ForeFlight’s sole discretion. ForeFlight also reserves the right to bring legal action against any individual or entity for any loss or damage that it may suffer as a result of violation of the terms of this EULA.
4. Permitted Uses and Restrictions
b. ForeFlight Functionality Subscription Terms; Device Limitations
i. Individual Subscriptions. If you acquire a subscription to use a portion of the Service related to the ForeFlight Functionality pursuant to an individual subscription plan (an “Individual Subscription”), except as may otherwise be expressly stated in the purchase terms applicable to your purchase of that Individual Subscription, that Individual Subscription provides you the right to use the applicable portion of the Service for one year from the date of purchase on one iPad, one iPhone, or one iPod Touch that you own or control. An Individual Subscription also allows the subscriber to use the applicable portion of the Service on an additional iPad only as a back-up device. All devices associated with an Individual Subscription are solely for use by the same individual. If you have an Individual Subscription and share your username and password with a friend or other person, your account may be locked out.
ii. Business Subscriptions. If you acquire a subscription to use a portion of the Service related to the ForeFlight Functionality pursuant to a business subscription plan (a “Business Subscription”), except as may otherwise be expressly stated in the purchase terms applicable to your purchase of that Business Subscription, that Business Subscription provides you the right to use the applicable portion of the Service for one year from the date of purchase (unless a longer subscription period is expressly agreed to by you and ForeFlight). The applicable user of the access rights granted under the Business Subscription is permitted to use the applicable portion of the Service on one iPad, one iPhone, or one iPod Touch that you own or control. There is no permitted use of a back-up device for Business Subscriptions.
c. Limitations. You may not modify, alter, reproduce, or distribute any portion of the Service. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. You may not share your password or any other login credentials with any other person or publicly disclose it. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in this EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
d. Applicability to Updates. This EULA will govern any updates provided to you by ForeFlight that replace or supplement the App, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
5. Fees; Payment Terms. The JetFuelX Functionality may be made available to you for no charge from us, although certain premium content or features relating to the JetFuelX Functionality may only be available for a fee. Access to the ForeFlight Functionality, certain premium features of the ForeFlight Functionality, or other aspects of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars, are non-refundable, and shall be paid by you immediately when due. Fee information displayed through the Service is subject to change, and ForeFlight may increase or decrease fees as it deems necessary. If ForeFlight changes the fees for the Service, including by adding additional fees or charges, ForeFlight will provide you advance notice of those changes. If you do not accept the changes, ForeFlight may discontinue providing the Service to you. ForeFlight will charge the payment method you specify at the time of purchase. As a user of the Service, you agree that you shall, as a condition to using the Service, provide a valid credit card or other authorized payment method to use the Service. You authorize ForeFlight to charge all sums as described in this EULA, for the Service you select, to that payment method. If you pay any fees with a credit card, ForeFlight may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating, or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize ForeFlight to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 7 business days for the update or cancellation to take effect. Your selection to confirm any online payment via the Service is your electronic signature and you agree that (i) this signature is the legal equivalent of your wet or manual signature and (b) this transaction is equivalent to an in-person transaction where your payment method is physically present. Except as expressly stated in this EULA, ForeFlight has no obligation to provide refunds or credits, but may grant them, in each case in ForeFlight’s sole discretion.
6. Accounts and Registration. To access most features of the Service, you may need to register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You may not allow any other person or entity to access or use your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at the applicable contact information in Section 35.
7. Transfer. You may not rent, lease, lend, or sublicense the Service. All components of the App are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. If an App update completely replaces (full install) a previously licensed version of the App, you may not use both versions of the App at the same time nor may you transfer them separately.
8. Consent to Use of Data. You agree that ForeFlight may collect and use technical and related information, including but not limited to technical information about your iOS device (including device UUID), computer, your physical location, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the App. ForeFlight may use this information, as long as it is in a form that does not personally identify you, for analytics purposes (including aggregated and anonymized analytics), to improve our products and the Service, or to provide services or technologies to you.
9. User Contributions
a. User Content Generally. Certain features of the Service may permit users to upload content to the Service, such as reviews, comments, fuel prices, aircraft information, and other content (“User Content”) and to publish User Content on the Service. Subject to the limited license below, you retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
b. Limited License Grant to ForeFlight. By posting or publishing User Content, you hereby grant ForeFlight a worldwide, fully paid, nonexclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, host, store, transfer, perform, and display your User Content, in whole or in part, in any and all media or distribution methods (now known or later developed.) in connection with the Service. ForeFlight may use User Content in an aggregated manner or for analytics purposes, but not in a manner that specifically identifies you. You also grant ForeFlight and sub-licensees the right to use the first part of your account email address (excluding the domain) to identify you in connection with your User Content.
c. Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by this EULA and the functionality of the Service.
d. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize ForeFlight and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by ForeFlight, the Service, and this EULA. You represent and warrant that any User Content you submit to ForeFlight does not infringe or violate any copyright, trademark or other intellectual property rights of any third party, including any rights of privacy or publicity. You shall be solely responsible for keeping a duplicate copy of all User Content, and you acknowledge that ForeFlight accepts no responsibility or liability for the loss of your User Content.
10. Prohibited Conduct. By using the Service, you agree not to:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law or in a manner that causes ForeFlight to violate any law or regulation;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, misleading, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
d. interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any content;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) attempting to collect personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
f. perform any fraudulent activity including impersonating any person or entity, using a false e-mail address, claiming a false affiliation, accessing any other account on the Service without permission, misleading as to the origin of User Content, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under this EULA or any Materials (as defined below) or any right or ability to view, access, or use any Material; or
h. attempt to do any of the acts described in this Section 10, or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Responsibility of Users. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. ForeFlight may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EULA, any ForeFlight policy, or is otherwise harmful or objectionable. By operating the Service, ForeFlight does not represent or imply that it endorses the material on the Service, or that it believes that material to be accurate, useful, or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The User Content could contain content that violate the terms of this EULA. For example, the User Content could contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. User Content could also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. ForeFlight disclaims any responsibility for and any liability in connection with any harm resulting from the use of User Content, or from any downloading by users of User Content. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against ForeFlight with respect to User Content.
12. Third Party Services, Third Party Fees, and Linked Websites
a. Access to Third Party Services. The Service may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third Party Services”).
b. No Control Over Third Party Services. ForeFlight does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third Party Services, ForeFlight does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third Party Services.
d. Disclaimer of Liability for Third Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third Party Services. ForeFlight disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against ForeFlight with respect to the content or operation of any Third Party Services.
e. Third Party Fees. Your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all of those fees and abide by all of those terms. You are solely responsible for all of those fees incurred by you for use of the Service.
13. Ownership; Proprietary Rights.
a. ForeFlight Materials. The Service is owned and operated by ForeFlight. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by ForeFlight are protected by intellectual property and other laws. All Materials included in the Service are the property of ForeFlight or our third party licensors. This includes the mark “ForeFlight” and corresponding logo, each of which are trademarks of ForeFlight. Except as expressly authorized by ForeFlight, you may not make use of the Materials. ForeFlight reserves all rights to the Materials not granted expressly in this EULA.
b. Customer Name and Logos. ForeFlight may include your company, entity or organization’s name, logo and/or a summary description of your and your company, entity or organization’s use of the Service in ForeFlight’s marketing materials, including on its website and in press releases and sales presentations.
14. Data Sync Services. Certain features of the Service may allow automatic syncing of data between your authorized devices. To accomplish data syncing, information is sent from your device to a hosted data service. Use of that feature requires compatible devices and Internet access, may require periodic updates, and may be affected by the performance of these factors. ForeFlight reserves the right to limit the number of accounts that may be created from a device and the number of devices associated with an account, including the limits specified in Section 4.b. High-speed Internet access is strongly recommended for use. You agree that meeting these requirements, which may change from time to time, is your responsibility.
16. Digital Millennium Copyright Act
a. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: General Counsel
2323 South Shepherd Drive, Suite 912
Houston, TX 77019
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
ii. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Service;
iv. your address, telephone number, and email address;
v. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
vi. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
b. Repeat Infringers. ForeFlight will promptly terminate without notice the accounts of users that are determined by ForeFlight to be Repeat Infringers. A “Repeat Infringer” is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
17. Pricing and Product Availability. To the extent that products or prices, e.g. fuel prices, offered by third parties may be displayed within the Service, that content is by its nature subject to change without notice by the applicable third party, and is neither independently confirmed by ForeFlight nor guaranteed to be accurate or current.
18. Termination; Discontinuation and Modification of the Service. This EULA is effective until terminated. Your rights under this EULA will terminate automatically without notice from ForeFlight if you fail to comply with any term(s) of this EULA. In addition, ForeFlight may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. You may terminate your account at any time by contacting customer service at the applicable contact information in Section 35. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. Upon the termination of this EULA, you will cease all use of the Service and destroy all copies, full or partial, of the App. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
20. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as separate end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service, subject to Section 30. All Additional Terms are incorporated by this reference into, and made a part of, this EULA.
21. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant ForeFlight an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
22. Indemnification. You are responsible for your use of the Service and you will indemnify, defend and hold harmless ForeFlight, its licensors (including suppliers of data), and its and their officers, directors, employees, consultants, affiliates, subsidiaries, suppliers, and agents (together, the “ForeFlight Entities”) from and against all claims and liabilities (including claims by third parties) and costs, losses, and expenses (including attorneys’ fees) incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, including your employees, if any, including any aircraft, arising out of or in any way relating to: (a) your violation of any portion of this EULA, any representation, warranty, or agreement referenced in this EULA, or any applicable law or regulation; (b) your access to, utilization of, or alleged use of the Service; (c) other property, or privacy right; or (d) any dispute or issue between you and any third party. These obligations apply whether or not arising in tort or occasioned by the negligence of ForeFlight, except to the extent of any obligation, liability, claim, or remedy in tort due to the recklessness or willful misconduct of ForeFlight. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
23. Disclaimers; No Warranty; Other Limitations. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE FOREFLIGHT ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE FOREFLIGHT ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. YOUR SOLE REMEDY IN THE EVENT OF ANY DEFICIENCY, ERROR, OR INACCURACY IN THE SERVICE SHALL BE TO REQUEST THAT FOREFLIGHT CORRECT THE MATTER OR, IF FOREFLIGHT FAILS TO DO SO, TO DISCONTINUE YOUR USE OF THE SERVICE.
FOREFLIGHT USES AVAILABLE THIRD PARTY DATA TO CREATE GRAPHICAL FILES (INCLUDING TFRs - TEMPORARY FLIGHT RESTRICTIONS), BUT FOREFLIGHT DOES NOT GUARANTEE THAT THE ORIGINAL SOURCES (INCLUDING THE FAA) HAVE PROVIDED DATA THAT IS ACCURATE, COMPLETE, TIMELY, OR PROPERLY FORMATTED FOR DISPLAY. USERS SHOULD ALWAYS CONTACT OFFICIAL SOURCES FOR THE MOST ACCURATE AND TIMELY UPDATES.
THE SERVICE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ForeFlight ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
24. Limitation of Liability. THE AGGREGATE LIABILITY OF THE FOREFLIGHT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FOREFLIGHT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREFLIGHT ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; OR (B) ANY CONTENT OBTAINED FROM THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 24 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
25. Third Party Disputes. FOREFLIGHT IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE FOREFLIGHT (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
26. Export Control. You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service is accessed or obtained. In particular, but without limitation, the App may not be exported or re-exported: (a) into any U.S. embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any of those countries or on any of those lists. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of missiles, and nuclear, chemical, or biological weapons.
27. Government End Users. The App and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those 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 Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
28. Controlling Law. This EULA is governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. This EULA is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If a lawsuit or court proceeding is permitted under this EULA, then you and ForeFlight agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Harris County, Texas for the purpose of litigating any dispute. We operate the Service from our offices in Texas, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
30. Modification of this EULA. We reserve the right, at our discretion, to change this EULA on a going-forward basis at any time. Please check this EULA periodically for changes. If a change to this EULA materially modifies your rights or obligations, you will be required to accept the modified EULA in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified EULA. Immaterial modifications are effective upon publication. Disputes arising under this EULA will be resolved in accordance with the version of this EULA that was in effect at the time the dispute arose.
32. Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 32 apply. You acknowledge that this EULA is between you and ForeFlight only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 32 of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 32 of this EULA against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
33. Third Party Acknowledgements. Portions of the App may utilize or include third party software and other copyrighted material (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software. Acknowledgements, licensing terms and disclaimers for that material are contained in the online electronic documentation for the Service, and your use of that material is governed by their respective terms. Third Party Software may include the following:
ForeFlight may utilize data from AOPA. To the extent of that use, the following restriction applies:
AOPA MEMBERSHIP PUBLICATIONS, INC. AND ITS RELATED ORGANIZATIONS (HEREINAFTER COLLECTIVELY “AOPA”) EXPRESSLY DISCLAIM ALL WARRANTIES, WITH RESPECT TO THE AOPA INFORMATION INCLUDED IN THIS DATA, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE INFORMATION IS PROVIDED “AS IS” AND AOPA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING ITS ACCURACY, RELIABILITY, OR OTHERWISE. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL AOPA BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF AOPA OR AN AOPA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER AGREES NOT TO SUE AOPA AND, TO THE MAXIMUM EXTENT ALLOWED BY LAW, TO RELEASE AND HOLD HARMLESS AOPA FROM ANY CAUSES OF ACTION, CLAIMS OR LOSSES RELATED TO ANY ACTUAL OR ALLEGED INACCURACIES IN THE INFORMATION ARISING OUT OF USER’S USE OF THE INFORMATION IN THE DATASETS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
ForeFlight may utilize data from Universal Weather and Aviation, Inc. To the extent of that use, the following restriction applies:
While Universal Weather and Aviation, Inc. believes the data to be accurate at the time of distribution, this data must be used as pre-flight reference information only for planning purposes, NOT as certified in-flight reference information. Universal shall not be liable for factual or editorial errors and users should only act or rely on the information after they confirm its continuing accuracy. Universal shall employ its best efforts to ensure all data provided is accurate.
Copyright (c) 2014 Dynon Avionics, Inc.
Some portions Copyright (c) 2008, Google Inc. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Additional Terms and Conditions for Jeppesen NavData®
You (herein also “End-User”) have licensed Jeppesen’s NavData (the “Data”) from ForeFlight, LLC (“ForeFlight”) under an agreement between You and ForeFlight (the “Agreement”). These additional terms and conditions (“Additional Terms”) are legally binding upon You in addition to and as an integral part of the Agreement. By executing the Agreement or by using the Data, you agree to these Additional Terms.
1. End-User acknowledges that the Agreement is concluded solely between ForeFlight and End-User, and not with Jeppesen Sanderson, Inc. or its affiliates or parent company (“Jeppesen”). End-User acknowledges and agrees that Jeppesen is, in respect of these Additional Terms, a third party beneficiary of the Agreement and that Jeppesen will have the right (and will be deemed to have accepted the right) to enforce the Additional Terms against End-User as a third party beneficiary of the Agreement.
A. DATA RELATED ALERTS AND NOTICES ("ALERTS") ARE PUBLISHED ON JEPPESEN'S NOTICES AND ALERTS WEBPAGE ACCESSIBLE VIA WWW.JEPPESEN.COM. CHANGES MAY OCCUR AT ANY TIME AND END-USER AGREES TO REGULARLY MONITOR JEPPESEN'S NOTICES AND ALERTS WEBPAGE AS APPROPRIATE FOR ITS TYPE OF OPERATION.
B. END-USER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT THE DATA PROVIDED HEREUNDER: (i) IS NOT FOR NAVIGATION, (ii) IS FOR REFERENCE AND SITUATIONAL AWARENESS ONLY, (iii) AND INCORPORATES INFORMATION FURNISHED BY THIRD PARTIES OVER WHICH JEPPESEN HAS NO CONTROL. IN NO CASE SHOULD ANY SERVICE BE SUBSTITUTED FOR END-USER'S OWN BEST JUDGEMENT IN ANY GIVEN SITUATION.
3. NO WARRANTY. END-USER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT THE DATA ARE PROVIDED “AS-IS” WITHOUT WARRANTY FROM JEPPESEN OF ANY KIND WHATSOEVER.
4. EXCLUSION OF LIABILITIES.
A. DISCLAIMER AND RELEASE. ANY RIGHTS, CLAIMS OR REMEDIES OF END-USER WITH RESPECT TO THE DATA ARE SET FORTH IN THE AGREEMENT AND END-USER HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS AND LIABILITIES OF JEPPESEN, AND ANY OTHER RIGHTS, CLAIMS AND REMEDIES OF END-USER AGAINST JEPPESEN, EXPRESS OR IMPLIED, ARISING BY LAW, EQUITY OR OTHERWISE, WITH RESPECT TO THESE ADDITIONAL TERMS, THE AGREEMENT, ANY CUSTOMER-SUPPLIED INFORMATION, THE DATA OR OTHER THINGS PROVIDED, OR ANY NONCONFORMANCE OR DEFECT IN THE DESIGN, ADEQUACY, ACCURACY, RELIABILITY, SAFETY, OR CONFORMANCE WITH GOVERNMENT STANDARDS OR REGULATIONS OF SUCH DATA OR OTHER THINGS PROVIDED, INCLUDING BUT NOT LIMITED TO:
(i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS;
(ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY ARISING IN STRICT LIABILITY OR IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF JEPPESEN; AND
(iv) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY OF END-USER, INCLUDING WITHOUT LIMITATION ANY AIRCRAFT.
B. EXCLUSION OF SPECIFIED LOSSES AND DAMAGES. JEPPESEN WILL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER, (i) WHETHER ARISING IN LAW, EQUITY, CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF JEPPESEN), STRICT LIABILITY OR OTHERWISE AND (ii) WHETHER SUCH LOSSES OR DAMAGES ARE DIRECT, INDIRECT OR OTHERWISE, FOR:
(i) LOSS OF USE, REVENUE, PROFIT, ANTICIPATED SAVINGS, BUSINESS VALUE, OPPORTUNITY OR GOODWILL;
(ii) LOSS OR DAMAGES RESULTING FROM BUSINESS INTERRUPTION;
(iii) LOSS OR DAMAGES RESULTING FROM DELAY IN PERFORMANCE AND COST OF SUBSTITUTE PROCUREMENT;
(iv) LOSS OR DAMAGES RESULTING FROM REPRODUCTION OR RECOVERY OF DATA OR INFORMATION WHICH IS LOST, CORRUPTED OR DAMAGED IN ANY OTHER MANNER, WHETHER IN WHOLE OR IN PART; OR
(v) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY OR PURE ECONOMIC LOSSES OR DAMAGES
ARISING OUT OF OR IN ANY WAY RELATED TO THESE ADDITIONAL TERMS, THE AGREEMENT OR THE DATA.
For purposes of this Section, the term “Jeppesen” includes Jeppesen, its parent company, their respective parents, affiliates, and the assignees of each, and their respective directors, officers, employees and agents.
5. INDEMNIFICATION. End-User agrees to indemnify and hold harmless Jeppesen and its licensors, contractors, subcontractors and agents from and against all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys' fees), incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, including employees of End-User but not employees of Jeppesen, or for loss of or damage to any property, including any aircraft, arising out of or in any way relating to the utilization and/or processing of the Data or any other things provided hereunder, whether or not arising in strict liability or tort or occasioned by the negligence of Jeppesen, except to the extent of any obligation, liability, claim or remedy in tort due to the reckless misconduct of Jeppesen. End-User’s obligations under this indemnity will survive the expiration, termination, completion or cancellation the Agreement. For purposes of this Section, the term “Jeppesen” includes Jeppesen, its parent company, their respective parents, affiliates, and the assignees of each, and their respective directors, officers, employees and agents.
6. EXPORT COMPLIANCE. End-User is responsible for its compliance with any applicable export control restrictions, laws and regulations as may be modified from time to time, imposed by the governments of the United States and, if applicable, other countries. End–User will not attempt to, or knowingly export or re-export the Data to any country, entity, authority, company or person, prohibited from obtaining such Data, either directly or indirectly through affiliates, licensees or subsidiaries of End-User.
7. GOVERNING LAW. THESE ADDITIONAL TERMS ARE GOVERNED BY THE LAWS OF NEW YORK, USA WITHOUT RECOURSE TO CHOICE OF LAW STATUTES OR PRINCIPLES THAT WOULD OTHERWISE RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THESE ADDITIONAL TERMS.
8. DISPUTE RESOLUTION. Any dispute, controversy or claim of whatsoever kind or nature arising out of or relating to these Additional Terms or the Data (if not resolved amicably), whether under contract, tort or otherwise, will be prosecuted and resolved exclusively subject to the jurisdiction of the United States District Court for the Southern District of New York and the parties hereby irrevocably and unconditionally consent to the exclusive in personam jurisdiction of such courts for the purpose of prosecuting and resolving such dispute, claim or controversy. The foregoing will not apply in the event a third party claims any injury, damage or loss against Jeppesen in a court or other proceeding wherein End-User is joined, interpleaded or impleaded by Jeppesen, or End-User is otherwise a necessary or indispensable party to the action or proceeding. Customer waives sovereign immunity and related defenses with respect to these Additional Terms of the Agreement.
A. Jury Trial Waiver. Jeppesen and End-User hereby knowingly, voluntarily, intentionally, and irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or relating to these Additional Terms.
34. Disclaimer Regarding Weather Information. The weather information is subject to service interruptions and may contain errors or inaccuracies and consequently should not be relied upon exclusively. You are urged to check alternate weather information sources prior to making safety related decisions. You acknowledge and agree that you are solely responsible for use of the information and all decisions taken with respect thereto. By using this weather service, you release and waive any claims against Sirius XM Radio Inc., ForeFlight, and Baron Services and affiliates with regard to the weather information.
35. Contact Information. The Service is offered by ForeFlight, LLC, located at 2323 S Shepherd Drive, Suite 912, Houston, TX 77019. You may contact us by sending correspondence to that address or by emailing us at email@example.com for ForeFlight Functionality-related information or at firstname.lastname@example.org for JetFuelX Functionality-related information.
36. Construction. The headings used in this EULA are for convenience only and have no legal meaning or effect. Terms defined in the singular have the corresponding meanings in the plural, and vice versa. Unless the context of this EULA clearly requires otherwise, words importing the masculine gender include the feminine and neutral genders and vice versa. The terms “include,” “includes” or “including” mean “including without limitation.” The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in this EULA, refer to this EULA as a whole and not to any particular section or article in which such words appear. The word “or” will not be construed as exclusive.