COASTAL EXPLORER™ LICENSE AGREEMENT
This License Agreement (this “Agreement”) is between You and Rose Point Navigation Systems, Inc. (“Licensor”) and governs Your use of Licensor’s Coastal Explorer™ computer based navigation information software provided hereunder. For purposes of this Agreement, “You”, and “Your” means (a) the individual identified on the invoice, order form or during the registration of the software, and/or (b) if that individual is entering into this Agreement for the benefit of his/her employer or a third-party, then such employer or third-party.
The Product (as defined in Section 1 below) is offered to You conditioned on Your acceptance of the terms and conditions contained in this Agreement. You accept and agree to be bound by the terms and conditions of this Agreement when You download, obtain, install, access, pay for or otherwise use the Product. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE PRODUCT, AND PLEASE RETURN THE PRODUCT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
1. Scope; Modifications; Data.
1.1 Scope. This Agreement governs Licensor’s Coastal Explorer™ computer software, data, associated media, and electronic documentation (collectively, the “Product”) in CD-ROM, DVD or electronic format transmitted from Licensor’s website, as provided to You by Licensor under this Agreement.
1.2 Modifications. You understand and agree that Licensor may modify the terms of this Agreement at any time. New, modified or additional terms will be posted at www.rosepoint.com/legal and will take effect thirty (30) days after they are first posted. Further, new licenses and/or updates to already licensed Product’s may be subject to new, modified or additional terms. By continuing to use the Product, You acknowledge and agree to be bound by the new, modified and/or additional terms.
1.3 Associated Data. Associated Data, defined below, which may be used in connection with the Product, is licensed under separate agreement(s) which do not cover the Product, and vice versa. You acknowledge and agree that the terms and conditions set forth herein are in addition to the terms and conditions of any other agreements covering the Associated Data, but that in the event of a conflict, the terms and conditions set forth in this Agreement control Your use of the Product.
2.1 Grant of License.Licensor hereby sells to You a non-exclusive, non-transferable (except as permitted below) license to install and use the Product as provided herein. Your license for the Product is linked to the account created when You activate the Product (“Account”) and may not transfer to another account except as permitted in Section 3.3 below. Your right to use the Product is subject to Your compliance with all of the terms and conditions of this Agreement and is conditioned on, among other things, your timely payment of applicable license fees and other charges. The Product is licensed, not sold, and at all times remains the property of Licensor and/or its third party licensors.
2.2 Use in Connection with Associated Data. Licensor hereby grants to You the right to use the Product in connection with certain data including, but not limited to, digital navigational charts, supplemental information and any updates thereto created by Licensor (“Data”) supplied to You by third party suppliers (“Third Party Data”) through Licensor in its capacity as a licensed distributor thereof, or made available to You via links through the Product (collectively, “Associated Data”). Licenses for the Data are subject to additional license terms and may require a separate license fee. You may obtain Associated Data licenses, pay applicable fees (if any) and download Associated Data using the purchase utility in the Product. Your license to use the Associated Data is linked to the Account associated with the Product through which You downloaded the Associated Data and by downloading it You agree to comply with the terms of the applicable license. You may only download, install and use the Associated Data with those Product’s covered by Your Account that are intended for use and are compatible with the Associated Data.
2.3 Product Support and Updates. Technical support for Products licensed under Your Account is available by contacting Licensor at www.coastalexplorer.net/support. Provided You are otherwise in compliance with the terms of this Agreement and have paid all applicable fees, Licensor will provide You with technical support and updates (if available) for the Product without additional charge for up to one (1) year following Your purchase of the license (the “Support Period”). Updates to the Product may be downloaded and installed as they become available by using the synch utility in the Product, or as otherwise described at www.coastalexplorer.net/support. Any updates to the Product shall be deemed to be part of the Product and shall be governed by the terms and conditions of this Agreement. You assume all risk for failing to download and install updates as they become available and You release Licensor from any and all loss, claim, or damage resulting from Your failure to do so.
2.4 Additional Product Support and Updates. Following expiration of the Support Period, Licensor may, at its sole option, make technical support and Product updates available for the Product. Such support will only be provided for the most recent version of the Product and the immediately preceding version and may be subject to hourly or other support fees. Check the Licensor support page for details and available updates at www.coastalexplorer.net/support.
2.5 Updates for Associated Data. Updates for the Associated Data may be made available from time to time through the synch feature in the Product. You are responsible for installing updates to the Associated Data as available. You understand that Your failure to do so may expose You to increased risk of navigational errors and damage. In addition, unauthorized use of the Associated Data with any version of the Product other than those listed as compatible with the update to the Associated Data may cause the Product and/or Associated Data to malfunction. If You are not licensed for the correct version of the Product, You must update Your license (if an update is available) or purchase a license for the compatible version. You understand that failure to comply with these terms and Your use of a Product and/or Associated Data that have not been updated may expose You to personal injury and property damage. You hereby accept all risks, including without limitation, personal injury and property damage, associated with Your continued use of the Product and/or Associated Data and release and agree to indemnify, defend and hold Licensor harmless from all losses, claims, or damages arising from such use.
2.6 Reservation of Rights. You shall only use the Product subject to the restrictions described herein. Licensor expressly reserves any and all rights, including, without limitation, intellectual property rights and goodwill, which it may have in or to the Product and which are not expressly licensed by Licensor to You under this Agreement. Without limiting the foregoing, You shall only use the Product for Your sole benefit and solely as a supplement to official navigation information and traditional navigation techniques and not as Your primary or sole method of navigation.
2.7 Installation and Activation. You may install and use the Product on up to three (3) personal computers owned by you, but only aboard or in connection with one (1) vessel at a time. In order to install and use the Product licensed under this Agreement, You must register and activate each copy using the valid Product ID provided to You at the time of purchase and following the instructions supplied during the launch sequence and in the product information provided to You with the Product. Each Product ID may only be used once in connection with the installation of the Product on the original designated computer. However, You may request that Licensor deactivate the Product on a computer on which it was installed so that You can install it on a replacement computer provided the Product is permanently removed from or rendered unusable on the original designated computer. Licensor reserves the right, at its sole discretion, to block, disallow, cease or otherwise prevent activation of the later-installed copies of the Product in violation of the terms of this license, including use beyond limits set forth in this Section.
3.1 THE PRODUCT IS LICENSED FOR PRIVATE USE ONLY AND NOT FOR COMMERCIAL USE. “Commercial Use” shall include the use, lease, rental, loan, or charter of any vessel that is engaged in trade or that carries passengers for hire, but shall not include the use, lease, rental, loan, or charter of any pleasure craft vessel for personal use or the bareboat charter of any vessel for personal use. You hereby accept all risks associated with Your use of the Product, including without limitation for Your use of the Product for commercial purposes, and release and agree to indemnify, defend and hold Licensor harmless from all losses, claims, or damages arising from such use. You may not (a) utilize any equipment, device, software, or other means designed to circumvent or remove any form of activation code or copy protection used by Licensor in connection with the Product, or use the Product together with any authorization code, license key, serial number, or other copy protection device not supplied by Licensor directly or through an authorized Licensor distributor; (b) use unauthorized activation codes or keycode(s) or distribute, share with any third party or publish activation codes except as may be expressly permitted by Licensor in writing; (c) extract, adapt or use any part of the Product (or portions thereof) to develop or derive any other product for distribution, navigation or commercial purposes or for the provision of any navigational information service without a separate license from Licensor to do so; or (d) copy, publish, communicate or redistribute the Product or any part thereof except as specifically authorized in this Agreement.
3.2 Intellectual Property. The Product is protected by copyright and other intellectual property laws. Nothing herein is intended or shall be construed to limit Licensor’s rights and remedies under applicable law, including copyright, with respect to the Product. You covenant and agree not to question or dispute Licensor’s ownership of or rights in the Product or any of the associated intellectual property rights. You further agree not to use the trademarks, logos, or domain names in any manner except as such use may be approved by Licensor and not, in any case, to use the same in any manner that would suggest a relationship between You and Licensor other than as a limited licensee or to suggest that Licensor endorses Your products or services. You further covenant and agree not to license, sell or offer for sale any products that infringe the intellectual property or other rights of Licensor.
3.3 Sublicense. Except as specifically permitted herein or with Licensor’s prior written consent, You may not (a) sublicense or transfer the license or any other rights granted to You under this Agreement or network, rent, lease, sell, lend, publish, distribute or otherwise make the Product available to any third party; or (b) reverse engineer, reverse translate, decompile, disassemble or in any manner decode the Product or attempt to discover the source code of the Product, except as otherwise permitted by law. You may make a one-time transfer of the Product and assignment of Your rights under this Agreement on a permanent basis provided the assignee agrees in writing to the terms of this Agreement and provided further that You do not retain any copies of the Product or any of its components. If You rent, lease, sell, lend or otherwise permit a third party to use any vessel on or in connection with which the Product is installed or used, You agree to require their agreement, as a condition of their purchase, lease, sale, borrowing, or use of the vessel, to all of the terms of this Agreement. You further agree to indemnify, defend, and hold harmless the Licensor Indemnitees (defined below) from and against any and all claims asserted against them by such third party in connection with the third party’s use of the vessel.
4. Product Registration.
Use of the Product, including but not limited to technical support and software updates, requires that the Product be registered to You and activated on each personal computer on which those features are used. You acknowledge and agree that Licensor may provide the information entered during registration of the Product to governmental authorities as required by applicable law, under court order, or subpoena, or similar process.
You understand and agree that Licensor will remotely collect installation, registration and other information from Your use of the Product to confirm Your compliance with the terms of this Agreement. If such information reveals that You have installed, accessed or permitted access to the Product on computer(s) or otherwise in a manner that is not permitted under this Agreement, then Licensor may terminate this Agreement immediately and You are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Licensor may be entitled to under this Agreement and applicable law. Nothing in this Section shall be deemed to limit any legal or equitable remedies available to Licensor for violation of this Agreement or applicable law.
6. License Term; Termination.
You may not use the Product unless You have purchased and hold a current license for it. The license to use the Product for which You have paid the applicable fees is perpetual and shall continue unless terminated as provided herein. You may terminate this Agreement at any time. Licensor may immediately terminate this Agreement if You breach any representation, warranty, agreement or obligation contained or referred to in this Agreement. On termination, You shall immediately return to Licensor the original and all copies of the Product and erase all copies from any computers on which copies of the Product have been installed. You understand that continued use of the Product after termination is a violation of this Agreement and applicable law. In addition, continued use of the Product after termination of the license may expose You to additional risk because, following termination of the license, the Product may contain inaccurate, incomplete, or out of date information. You hereby accept all risks associated with Your continued use of the Product after termination of this Agreement and release and agree to indemnify, defend and hold Licensor harmless from all losses, claims, or damages arising from such use. The provisions of Sections 3, 6, 7, and 8 through 21 of this Agreement shall survive termination of this Agreement.
7. Proprietary Rights and Confidentiality.
The Product is solely owned by Licensor, and it is protected by trade secret, copyright and patent laws. You will take all steps necessary to protect Licensor’s proprietary rights in the Product, including, but not limited to, the proper display of copyright, trademark, and other proprietary notices on any versions or copies in any form of the Product, including copies stored on diskettes, hard drives or other media. You will, at Your own cost and expense, protect and defend Licensor’s ownership of the Product against all claims, liens and legal processes of Your creditors and will keep the Product free and clear of all such claims, liens and processes.
8. Third Party Products and Data.
8.1 Definitions. As used herein, “Third Party Products” means software and hardware developed, licensed or owned by or on behalf of parties other than Licensor. Third Party Products include, but are not limited to charts and guidebooks, tide and current tables, and other materials distributed by third party publishers (the “Publisher”). If You choose to purchase any Publisher Third Party Products, You agree to be governed by the terms and conditions set by the Publisher, description of the materials can be found at www.rosepoint.com/coastal-explorer. Note that Publisher’s Third Party Products are intended for reference only and should not be used for navigational purposes.
8.2 Use. You may obtain or make use of certain Third Party Products or Third Party Data in connection with Your use of the Product. You acknowledge and agree that You are solely responsible for the selecting, testing and obtaining such Third Party Products or Third Party Data and any appropriate licenses required in connection therewith, for properly installing and configuring any such Third Party Products or Third Party Data for use with the Product, and that You assume all risk in connection with Your use of any Third Party Products or Third Party Data. In no event shall Licensor have any liability for any loss, claim or liability arising out of or in connection with Your use of or inability to use any Third Party Products or Third Party Data, and the accuracy of any information in the Third Party Products or Third Party Data, and You hereby release and forever discharge Licensor from any liability in connection therewith.
9. Disclaimer of Warranties by Licensor; Warranty from You.
9.1 DISCLAIMER. THE PRODUCT AND SERVICES AND ASSOCIATED DATA (INCLUDING ALL UPDATES TO ANY OF THEM) AND THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT FOR THE PRODUCT AND THIRD PARTY PRODUCT. LICENSOR MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OR THE ACCURACY OF THE INFORMATION CONTAINED IN THE PRODUCT AND THIRD PARTY PRODUCT AND OTHER INFORMATION PROVIDED TO YOU BY LICENSOR OR PUBLISHER OR REGARDING THE USE, OR THE RESULTS OF USE, OF THE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, CURRENCY, USEFULNESS, RELIABILITY, OR OTHERWISE, OR THE COMPATIBILITY OF THE PRODUCT WITH ANY THIRD PARTY PRODUCT, THIRD PARTY DATA OR ANY PAST, CURRENT OR FUTURE VERSIONS OF OPERATING SYSTEMS TO ACCESS OR USE THE PRODUCT.
9.2 Warranty from You. You represent and warrant that: (a) all individuals having access to the Product, including but not limited to all third party users of the vessel on or in association with which the Product is installed or used as well as their subrogee(s), if any, will adhere to all the terms and conditions of this Agreement; (b) You shall, at Your own expense, promptly enforce the restrictions in this Agreement against any person who gains access to the Product in violation of the terms; (c) You shall comply with all laws, regulations and requirements of the country or other jurisdiction in which You use the Product; (d) You shall promptly notify Licensor in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Product that may come to Your attention; and (e) the person accepting the terms of this Agreement has actual authority to bind his or her organization and its other users who will gain access to and use of the Product to each and every term, condition and obligation to this Agreement. You shall be considered in breach of this Agreement if any individual having access to the Product shall take or fail to take any act which, if taken or omitted by You, would constitute a breach of this Agreement.
9.3 Vessel. You represent and warrant that You have obtained or will obtain before installing or using the Product on or in connection with any personal computer that is primarily used aboard a vessel Protection & Indemnity (“P&I”) insurance coverage in sufficient amount(s) to cover any eventuality arising from or related to Your use of the Product, including without limitation replacement of the vessel in whole or in part, any government fines or penalties, and any environmental damage. You further agree that, in the event of any loss, damage or liability arising from or related to Your use of the Product, You shall seek recovery under Your P&I insurance policy.
9.4 ASSUMPTION OF RISK. YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT, THIRD PARTY PRODUCTS, SERVICES AND THE INFORMATION PROVIDED WITH THE PRODUCTS AND THIRD PARTY PRODUCTS MAY INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS. YOU REPRESENT THAT YOU HAVE EXAMINED THE PRODUCT AND THIRD PARTY PRODUCTS AND INDEPENDENTLY DETERMINED THAT IT MEETS YOUR NEEDS AND CONFORMS TO THE PRODUCT DOCUMENTATION PROVIDED WITH THE PRODUCTS. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS, PERFORMANCE AND USE OF THE PRODUCT, THIRD PARTY PRODUCTS AND RELEASE LICENSOR FROM ANY AND ALL LIABILITY IN CONNECTION THEREWITH.
10. International Safety Warnings and Disclaimers. YOU ACKNOWLEDGE AND AGREE THAT:
10.1 NAUTICAL NAVIGATION IS AN INHERENTLY DANGEROUS ACT. LICENSOR HAS NOT VERIFIED THE PRODUCT OR THIRD PARTY PRODUCTS FOR ACCURACY. THE PRODUCTS ARE NOT A SUBSTITUTE FOR YOUR OWN EXPERTISE AND JUDGMENT AND LICENSOR MAKES NO REPRESENTATION OR WARRANTY AS TO WHETHER THE PRODUCTS SHOULD BE RELIED UPON FOR NAVIGATIONAL DECISIONS;
10.2 UNLESS OTHERWISE SPECIFIED BY LICENSOR OR NATIONAL MARITIME AUTHORITIES, NO NATIONAL HYDROGRAPHIC OFFICE OF ANY COUNTRY HAS VERIFIED THE DATA OR INFORMATION IN THE PRODUCT, INCLUDING BUT NOT LIMITED TO NAUTICAL CHARTS, MAPS, OR OTHER IMAGES (IN DIGITAL OR PHYSICAL FORM), AND NO SUCH OFFICE WILL ACCEPT RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OF ANY REPRODUCTION OR ANY MODIFICATION MADE TO THE DATA OR INFORMATION PRODUCED BY THE PRODUCT;
10.3 UNLESS OTHERWISE SPECIFIED BY LICENSOR OR NATIONAL MARITIME AUTHORITIES, NO NATIONAL HYDROGRAPHIC OFFICE WARRANTS THAT THE PRODUCT SATISFIES NATIONAL OR INTERNATIONAL REGULATIONS REGARDING THE USE OF THE APPROPRIATE PRODUCTS FOR NAVIGATION;
10.4 YOU SHALL CONSULT OFFICIAL, UPDATED NAUTICAL CHARTS WHICH ARE ISSUED BY EACH COUNTRY THROUGH WHICH YOU TRANSVERSE FOR PURPOSES OF NAVIGATION. SUCH COUNTRIES INCLUDE BUT ARE NOT LIMITED TO THE UNITED STATES, THE UNITED KINGDOM, CANADA, AUSTRALIA, DENMARK, NORWAY, FINLAND, AND GERMANY;
10.5 UNLESS OTHERWISE SPECIFIED BY LICENSOR OR NATIONAL MARITIME AUTHORITIES, THE PRODUCT IS INADEQUATE AS A PRIMARY MEANS OF NAVIGATION, AND SHOULD BE USED ONLY AS A SUPPLEMENT TO OFFICIAL GOVERNMENT CHARTS AND TRADITIONAL NAVIGATION METHODS;
10.6 THE PRODUCT MAY NOT CONTAIN ALL NAUTICAL NAVIGATION DATA EXISTING OR AVAILABLE WORLDWIDE AND YOU SHOULD MAKE NO ASSUMPTION OTHERWISE;
10.7 LICENSOR HAS NOT INDEPENDENTLY VERIFIED THE INFORMATION CONTAINED IN THE PRODUCT AND DOES NOT ACCEPT ANY LIABILITY FOR THE ACCURACY OF REPRODUCTION OR FOR ANY MODIFICATIONS THAT MAY HAVE BEEN MADE TO THE INFORMATION CONTAINED IN THE PRODUCT; AND
10.8 LICENSOR WILL NOT BE RESPONSIBLE, UNDER ANY THEORY OF LIABILITY OR INDEMNITY, FOR YOUR USE OF, OR RELIANCE ON, THE PRODUCT AND THIRD PARTY PRODUCTS OR ANY INFORMATION CONTAINED THEREIN.
You agree to (a) defend and hold Licensor and its officers, directors, employees, and agents harmless (collectively, “Licensor Indemnitees”) from and against any and all claims asserted against them for (i) personal injury or property damage (including for death, physical, environmental or financial damage) resulting from Your negligence or reliance on or use of the Product and Third Party Products in any manner inconsistent with or in violation of the limitations, disclaimers and/or restrictions set forth in this Agreement or any such use or negligence of any person using any vessel owned or operated by You, including without limitation, any use in violation of any of the terms of Section 9 and (ii) infringement of any patent, copyright or trademark rights of any third party based on Your modification or other unauthorized use of the Product and (b) indemnify the Licensor Indemnitees from any final judgment rendered against any of them by a court of competent jurisdiction in connection with any of the above by paying that portion of any such judgment (including reasonable attorneys’ fees and related court costs and expenses) based thereon.
12. Limitation of Liability.
12.1 NO CONSEQUENTIAL DAMAGES. NEITHER LICENSOR NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITING THE FOREGOING, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR THIRD PARTY PRODUCTS OR FOR ANY CAUSE OF ACTION, INCLUDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 DAMAGE LIMITATIONS. ANY DAMAGES FOR WHICH LICENSOR OR ITS SUPPLIERS MAY BE REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER IN THE AGGREGATE SHALL BE LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS ($100), OR THE LICENSE FEES PAID FOR YOUR USE OF THE PRODUCT OR THIRD PARTY PRODUCTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION UNDER THIS AGREEMENT, MAY BE BROUGHT BY YOU MORE THAN SIXTY (60) DAYS AFTER YOU HAVE KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF SUCH ACTION.
12.3 LIMITATIONS SHALL NOT APPLY. THE LIMITATIONS IN THIS SECTION 12 SHALL NOT APPLY TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS BY YOU OR ANY CLAIM SUBJECT TO INDEMNITY UNDER SECTION 11.
12.4 Reliance. The parties to this Agreement have each agreed to the fees and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages set forth in this Agreement, that the same form an essential basis of the bargain between the parties, and that they shall not be removed, even in the event of the failure of an essential purpose of a remedy.
13. Injunctive Relief.
Because of the unique nature of the Product, You understand and agree that Licensor will suffer irreparable injury in the event You fail to comply with any of the terms of this Agreement and that monetary damages may be inadequate to compensate Licensor for such breach. Accordingly, You agree that Licensor will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement.
You shall also pay all freight, transportation, insurance, media-related costs and taxes and other governmental charges, however characterized (except based on Licensor’s income), in connection with Your licensing of the Product. Licensor shall be neither in default nor liable for any failure in performance or loss or damage under this Agreement due to any cause beyond its control. This Agreement shall inure to the benefit of Licensor and its successors, administrators, heirs and assigns.
15. Acknowledgment of Understanding – Entire Agreement.
You acknowledge that You have read this Agreement, have had the opportunity to have counsel of Your choosing review this Agreement, and that You understand this Agreement and agree to be bound by each of the terms and conditions set forth herein. You also agree that this Agreement is the complete and exclusive statement of the agreement between Licensor and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between Licensor and You relating to the subject matter of this Agreement. This Agreement may not be amended, except by an agreement in writing which is signed by authorized representatives of Licensor and You.
16. Dispute Resolution.
16.1 Arbitration Agreement and Class Action Waiver. Any dispute, controversy, or claim arising out of or relating in any way to the Agreement shall be finally resolved by arbitration. The arbitrator shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. You agree to arbitrate solely on an individual basis and expressly waive the ability to participate in a class or representative proceeding, including any class arbitration or representative arbitration proceedings. The arbitrator may not consolidate Your claims with those of any party and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the agreement to arbitrate will remain in force. If You opt out of arbitration following the procedure set forth below in Section 16.3, or if this arbitration agreement is found inapplicable to a dispute between us, You expressly waive the ability to participate in any class or representative litigation.
16.2 Arbitration Procedures/Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to this Section 16 shall be submitted to binding arbitration and resolved by a single arbitrator mutually agreed upon by You and Licensor; if there is no agreement, an arbitrator shall be selected pursuant to Rule 12 of the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator shall be bound by and shall strictly enforce the terms and conditions of the Agreement and any other applicable agreement between us, and may not limit, expand, or otherwise modify any of the Agreement’s terms and conditions or the provisions of any other applicable agreement between You and Licensor. The arbitrator may award any relief that a court of law could, applying the limitations of liability contained in the Agreement. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond the dealings between You and Licensor. The arbitrator shall apply the laws of the State of Washington, but not the 1980 United Nations Convention on Contracts for International Sale of Goods, without reference to its laws relating to conflicts of laws. Any arbitration will be held in Seattle, Washington, unless otherwise agreed upon by You and Licensor in writing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award costs and fees to the prevailing party if it is determined that the other party submitted a claim with no reasonable basis or filed any claim in bad faith.
16.3 Ability to opt out. You may opt out of this agreement to arbitrate by providing written notice of Your intention to do so to 18005 NE 68th Street, #A-100, Redmond, WA 98052 USA no later than 60 days after initial acceptance of the Agreement. The procedure spelled out herein is the only way to opt out of arbitration, and any attempts to opt out after the deadline set forth herein will be ineffective. In the event that You opt out of the agreement to arbitrate, any litigation arising out of the Agreement shall be governed by the laws of the State of Washington, but not including the 1980 United Nationals Convention on Contracts for International Sale of Goods, and without reference to its laws relating to conflicts of laws. Exclusive venue for any such litigation shall be in the courts located in Seattle, Washington. You consent to the personal jurisdiction of the courts of such venue. In any such litigation in which Licensor prevails, Licensor shall be entitled to recover its reasonable attorneys’ fees, legal expert fees, court costs, and other legal expenses.
16.4 Application of FAA/Survival. Because the Agreement concerns interstate commerce, the Federal Arbitration Act governs the interpretation and enforcement of this Section 16 (notwithstanding the application of Washington law to any underlying claims as provided above). You agree that this Section 16 survives any termination of the Agreement or any other agreement between us.
17. U.S. Government Restricted Rights.
17.1 Commercial Computer Software. The Government acknowledges and agrees that any and all computer software, computer data bases and related documentation (collectively “computer software”) is “commercial item” as defined in 48 C.F.R. § 2.101 and “commercial computer software” as that term is used in 48 C.F.R. § 12.212. The Government shall have only those rights specified in the license in this Agreement under which the commercial computer software and/or commercial computer software documentation was obtained. 48 C.F.R. § 12.212(b). Pursuant to 48 C.F.R. § 12.212(a)(1), the Government acknowledges and agrees that it shall have no right to use, modify, reproduce, release, perform, display or disclose computer software or computer software documentation except as mutually agreed to by the parties in this Agreement. The rights stated in FARS 52.227-19 – Commercial Computer Software – Restricted Rights (48 C.F.R. § 52.227-19) are hereby withheld from the Government.
17.2 Commercial Computer Software and Commercial Computer Software Documentation. The Government acknowledges and agrees that any and all computer software is “commercial computer software” as defined at DFARS 227.7201 and DFARS 252.227-7014 and as that term is used in DFARS 227.7202-3 and 227.7202-4 and that any and all computer software documentation is “commercial computer software documentation” as that term is used in DFARS 227.7202-3 and 227.7202-4. The Government shall have only the rights specified in the license in this Agreement under which the commercial computer software and/or commercial computer software documentation was obtained. DFARS 227.7202-3(a). The Government shall have no right to use, modify, reproduce, release, perform, display or disclose computer software or computer software documentation except as shall be as identified in this Agreement. DFARS 227.7202-4.
17.3 Manufacturer is Rose Point Navigation Systems, Inc., 18005 NE 6th Street, #A-100, Redmond, WA 98052 USA.
If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party set forth on the invoice or order form or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed.
The headings of the sections of this Agreement are for convenience only and do not form a party hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
21. No Waiver.
No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.