OneSky Systems Inc.
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OneSky License Agreement
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NOTICE TO USER: PLEASE READ THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND ONESKY SYSTEMS, INC. (“ONESKY”), A DELAWARE CORPORATION, LOCATED AT 220 VALLEY CREEK BOULEVARD, EXTON, PA 19341. BY USING ALL OR ANY PORTION OF THE ONESKY SOFTWARE (DEFINED BELOW), YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, DO NOT USE THE SOFTWARE. IF YOU ACQUIRED THE SOFTWARE WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU ORIGINALLY PAID FOR THE SOFTWARE PROVIDED YOU: (A) DO NOT USE THE SOFTWARE, (B) YOU DO NOT MAKE OR KEEP ANY COPIES OF THE SOFTWARE, AND (C) YOU RETURN IT WITHIN THIRTY (30) DAYS OF THE ORIGINAL PURCHASE DATE ALONG WITH EVIDENCE OF THE DATE OF PURCHASE AND ORIGINAL PURCHASE PRICE. ONESKY PROVIDES THE SOFTWARE AND DOCUMENTATION, AND LICENSES THEIR USE TO YOU AS SET FORTH HEREIN. YOU ACCEPT ALL RESPONSIBILITY AND LIABILITY RESULTING FROM THE SELECTION OF THE SOFTWARE AND SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR ACCESS, INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE, AND FOR YOUR RELIANCE ON THE SOFTWARE, OPERATIONAL CAPABILITIES AND RESULTS OBTAINED.
1. DEFINITIONS
"Documentation" means the licensed specifications, user manuals, installation instructions and other supporting materials, including additional, updated or revised materials, if any, that are provided by ONESKY in connection with the Software.
“Fees” means the license fees and other amounts that You are obligated to pay to ONESKY under Your Order.
“Operations License” means a license whereby the Software and its capabilities (including, without limitation, planning, analytics, operations, visualization, results, reports, etc.) are used operationally in the conduct of Your air traffic management and operations business.
“Order” means a valid purchase order or other contract between You and ONESKY for your purchase of license(s) to the Software.
“Prototype/Risk Reduction License” means a license whereby the Software and its derivative products (visualization, results, reports, etc.) are used solely in an assessment of the technology for potential use as provided for under an Operations License. In this state, the Software may operate on simulated data or reference data.
"Software" means the capabilities, base capabilities or sub capabilities, either individually or collectively in the aggregate, which comprise ONESKY’s uncrewed traffic management (UTM), Operations Center, Operational Analytics, and other software, whether provided as a downloadable file, on a physical media, or as a connected service through a cloud portal hosted by or on behalf of ONESKY, and all of the contents of the files, media and services, including without limitation information and data, provided with or as part of such software, including but not limited to (i) ONESKY or third party computer information, data or software; and (ii) digital images, stock photographs, video, clip art, sound(s) or other work.
"Third Party Content" means software (whether embedded or not), information, data and other materials owned and licensed by third parties that is supplied by ONESKY with the Software.
"Use or Using" means to access/open, install, download, connect to, copy, or otherwise benefit from the Software or the Documentation.
2. LICENSE GRANT
2.1 Subject to Your payment of the Fees and Your compliance with the terms and conditions of this Agreement, ONESKY grants you a limited, non-exclusive, non-transferable, revocable license to use the Software under an Operations License and/or a Prototype/Risk Reduction License as specified in Your Order.. The Order may specify other limitations, such as the geographic region(s) in which you are permitted to use the Software. The Software may be accessed through (a) a cloud portal hosted by or on behalf of ONESKY or (b) a copy of the Software installed on Your internal enterprise infrastructure.
2.2 The license is non-sublicensable except that, under an Operations License, you may use the Software to provide air traffic management and operations services to Your end-users.
2.3 ONESKY may provide upgrades to the Software (“Software Upgrades) to You under this Agreement. Software Upgrades consist of new product releases, which are issued periodically and may include new functionality, enhancements, and bug fixes. Software Upgrades are provided only for standard hardware platforms and operating systems supported by ONESKY as described in the Documentation. Software Upgrades will apply only to commercially released updated versions of the Software. You are responsible for adapting Your own interfaces for nonstandard devices or custom applications for compatibility with the Software and any Software Upgrades.
2.4 Except to the extent expressly provided in Section 2.2, You may NOT sell, distribute, transfer, lease, sublicense, or rent a component of the Software to any third party.
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2.5 You may NOT: use the Software or Documentation in connection with any illegal activity or with any material that is deemed to be obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, malicious or abusive; use the Software in a manner that may damage or overburden the Software or interfere with others’ use of the Software; store in or transmit to the Software viruses, Trojan horses, or any other malicious code or program destructive in nature; interfere with or attempt to gain unauthorized access to an account or computer or network for the Software; or create a false identity or attempt to mislead others of Your identity or the origin of any communication in connection with Your use of the Software.
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2.6 You must reproduce and include the copyright and other proprietary notices of ONESKY on any copy of all or any portion of the Software and Documentation, and all such copies shall be subject to all the terms and conditions of this Agreement.
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2.7 YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE SOFTWARE OR DOCUMENTATION OR ANY COPY, MODIFICATION OR MERGED PORTION THEREOF, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. FURTHERMORE, YOU MAY NOT REVERSE ENGINEER, DISASSEMBLE, DECOMPILE, UNBUNDLE OR OTHERWISE ATTEMPT TO RECONSTRUCT OR DISCOVER ANY SOURCE CODE, DATA, DIGITAL CERTIFICATES, PASSWORDS, UNDERLYING IDEAS, ALGORITHMS, FILE FORMATS OR PROGRAMMING INTERFACES OF THE SOFTWARE, OR ALLOW OTHERS TO ATTEMPT ANY OF THE FOREGOING.
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3 CLOUD PORTAL SERVICE LEVEL GOAL
3.1 Where You have an Operations License and are using the Software through ONESKY’s hosted could portal, ONESKY will use commercially reasonable efforts to make the Software available with a monthly uptime percentage of at least 99.9% (the "Service Level Goal"). This percentage excludes: planned and announced downtime, any force majeure event, Internet access or related problems beyond the demarcation point of the Software, any voluntary actions or inactions by You or any third party, and any other event or actions outside the control of ONESKY.
In the event ONESKY does not meet the Service Level Goal (an “Unavailability Incident’), Your sole and exclusive remedy for any unavailability or non-performance of the Software or other failure by ONESKY to meet the Service Level Goal will be to receive prorated reduced billing for the applicable billing cycle in accordance with the terms of this Section 16.
3.2 To receive prorated reduced billing, You will need to submit a claim by contacting support@oneskysystems.com. To be eligible, the request must be received by us by the end of the second billing cycle after which the incident occurred and must include:
i. the words "SLA Reduced Billing Request" in the subject line;
ii. the dates and start/end times of each Unavailability Incident you are claiming;
iii. the name of Your company and the system that was unavailable; and
iv. Your request logs that document and corroborate the Unavailability Incident and its cause of an outage to your system (any confidential or sensitive information in these logs should be removed or replaced with asterisks).
If the monthly down time due to Unavailability Incidences described in Your request is confirmed by ONESKY and demonstrates that the monthly uptime percentage of the Software was less than the Service Level Goal, then we will reflect the prorated reduced billing to You within one billing cycle following the month in which the request occurred. Your failure to provide the request and other information as required above will disqualify you from receiving a billing reduction.
4. LIMITATION AND WARRANTIES
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION. ONESKY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
5. LIMITATION OF REMEDIES
5.1 IN NO EVENT WILL ONESKY OR ITS SUPPLIERS, DISTRIBUTORS, OR DEALERS (“PARTNERS”) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMTIATION ANY LOSS OF PROFITS, SAVINGS, REVENUE, DATA, GOODWILL OR OTHER INTANGABLES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, WHETHER IN AN ACTION OF CONTRACT, NEGLIENCE OR OTHER TORTIOUS ACTION, EVEN IF ONESKY OR ITS PARTNERS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL ONESKY BE LIABLE FOR ANY SIMILAR CLAIM AGAINST YOU BY ANY OTHER PARTY.
5.2 ONESKY’S OBLIGATIONS UNDER THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY OR CONTRIBUTION, SHALL NOT EXCEED THE AMOUNT OF THE APPLICABLE FEES PAID BY YOU FOR THE SOFTWARE LICENSE.
6. UNITED STATES EXPORT CONTROL
The Software provided under this Agreement is subject to U.S. Export Control Regulations and Laws, including but not limited to the Export Administration Regulations (EAR) and, as may be applicable, the International Traffic in Arms Regulations (ITAR), and may be subject to the import or export regulations of other countries. You agree that you will strictly comply with all export laws and regulations of the United States and any other relevant countries applicable to the Software.
7. TERMINATION
The license granted under this Agreement is effective until terminated. You may terminate this license at any time by destroying all copies of the Software in your possession, and providing written notice of such termination and destruction to ONESKY. The license granted under this Agreement will terminate if you violate any of the terms and conditions of the Agreement, including without limitation, to pay the license fees and any other sums due ONESKY pursuant to this Agreement. You agree, upon such termination, to promptly destroy all copies of the Software in your possession and to certify in writing to ONESKY that such action has been taken.
8. LAW TO GOVERN
This Agreement shall be governed by the laws of the State of Delaware, United States of America. You hereby agree that the jurisdiction and venue for any claim, dispute, controversy or other action arising out of or in connection with the Software, this Agreement and/or ONESKY, shall be in New Castle County in the State of Delaware.
9. ASSIGNMENT
None of your rights, duties or obligations under this Agreement may be sold, sublicensed, assigned, rented, licensed, loaned or otherwise transferred without the prior written consent of ONESKY, and any attempt to so sell, sublicense, assign, rent, lease, loan or transfer without ONESKY’s prior written consent is void. ONESKY shall have the right to assign this Agreement to a successor party in the event of a change in control of ONESKY or a purchase of all or substantially all of ONESKY’s assets.
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10. NOTICES
Any notices regarding this Agreement shall be sent to: OneSky Systems Inc.
Attn: Contracts Department
220 Valley Creek Blvd. Exton, PA 19341
11. AUDIT
You shall maintain accurate and complete records as necessary to verify your compliance with this Agreement. Upon ONESKY’s request, You will promptly provide such records to ONESKY or its designated auditor and certify that You have complied with the terms and conditions set forth herein.
12. INTELLECTUAL PROPERTY AND OWNERSHIP
ONESKY, and ONESKY’s licensors, respectively, retain ownership of all rights, title and interest in and to the Software, Documentation and all intellectual property rights associated therewith. This Agreement shall not be construed in any manner as transferring any rights of ownership or license to Software, and/or to the features or information therein, except for the limited license grant to use the Software and Documentation expressly set forth in this Agreement. All rights not expressly granted by ONESKY are reserved. The Software and Documentation are protected by copyright and other intellectual property rights, laws and treaties.
13. U.S. GOVERNMENT END USER RIGHTS
13.1 The Software and Documentation are "Commercial Items," as defined in FAR 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation. Government software and technical data rights in the Software and its Documentation include only those rights customarily provided to the public as defined in this Agreement.
13.2 The use, duplication of or disclosure of the Software and Documentation by the U.S. Government is subject to the restrictions set forth in FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense purchases, DFAR 252.227-7015 (Technical Data – Commercial Items) and 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation), as applicable. Accordingly, all U.S. Government End Users acquire the Software and its Documentation with only those rights set forth herein. The developer and manufacturer is OneSky Systems, Inc., located at 220 Valley Creek Boulevard, Exton, PA 19341.
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14. THIRD PARTY CONTENT
The Software utilizes Third Party Content which is subject to the terms and conditions of such respective third parties. Third party terms, conditions and copyright attributions for the Software are available from ONSEKY upon Your request.
15. INDEMNIFICATION
Unless you are a US Government entity, You agree to indemnify, defend and hold harmless, ONESKY, its officers, directors, employees, suppliers, consultants and agents from any and all claims, liability, damage and/or cost (including, but not limited to reasonable attorney’s fees) arising out of or in connection with (a) the operation and use of the Software, Documentation and capabilities developed there from, and (b) Your breach of this Agreement. This obligation shall survive the termination of this Agreement.
16. ACKNOWLEDGEMENTS
16.1 YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS;
16.2 THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE UNDERSTANDING AND CONTRACT BETWEEN US AND SUPERSEDES ANY AND ALL PRIOR ORAL OR WRITTEN COMMUNICATIONS RELATING TO THE SUBJECT MATTER HEREOF. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT ANY PURCHASING TERMS AND CONDITIONS OR LIKE INSTRUMENTS THAT YOU REFERENCE OR SUBMIT TO ONESKEY IN CONNECTION WITH YOUR ORDER SHALL NOT APPLY REGARDLESS OF THE ORDER OF THE EXCHANGE OF INSTRUMENTS;
16.3 THIS AGREEMENT MAY NOT BE MODIFIED, AMENDED OR IN ANY WAY ALTERED EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BOTH YOU AND ONESKY;
16.4 ANY PROVISION FOUND BY A COURT OF LAW TO BE ILLEGAL, INVALID, OR UNENFORCEABLE SHALL AUTOMATICALLY BE DEEMED CONFORMED TO THE MINIMUM REQUIREMENTS OF LAW AND IT, WITH ALL OTHER PROVISIONS, SHALL BE GIVEN FULL FORCE AND EFFECT. WAIVER OF A PROVISION IN ONE INSTANCE SHALL NOT PRECLUDE ITS ENFORCEMENT ON FUTURE OCCASIONS. SUCH FINDINGS OF ILLEGALITY, INVALIDITY, AND/OR UNENFORCEABILITY OF ONE OR MORE OF THE PROVISIONS HEREIN SHALL NOT AFFECT THE REMAINING PROVISIONS; AND
16.5 YOU HEREBY AGREE THAT ONESKY WOULD BE IRREPARABLY DAMAGED IF THE TERMS AND CONDITIONS OF THIS AGREEMENT WERE NOT SPECIFICALLY ENFORCED, AND THEREFORE YOU AGREE THAT ONESKY SHALL BE ENTITLED TO APPROPRIATE EQUITABLE REMEDIES WITH RESPECT TO BREACHES OF THIS AGREEMENT, IN ADDITION TO SUCH OTHER REMEDIES AS ONESKY MAY OTHERWISE HAVE AVAILABLE TO IT UNDER APPLICABLE LAWS. IN THE EVENT THAT ONESKY IS REQUIRED TO BRING AN ACTION, SUIT, OR 0THER PROCEEDING FOR FEES, OTHER MONIES DUE UNDER THIS AGREEMENT, OR THE ENFORCEMENT OF ANY PROVISION OF OR UNDER THIS AGREEMENT, YOU AGREE TO REIMBURSE ONESKY FOR ANY AND ALL COSTS AND EXPENSES, INCLUDING ATTORNEY AND PROFESSIONAL OR EXPERT FEES, INCURRED BY ONESKY.
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17. ACCEPTANCE
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Acceptance of this Agreement shall be in accordance with the NOTICE TO USER section set forth above.
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17. ACCEPTANCE
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