“Innovata Content” means the proprietary schedule
information and any other content that is made available to
Customer and each Authorized User by Innovata through the
Flightmaps Analytics service.
“Authorized User” means a Customer employee who
has received a valid Password from Innovata and has accepted
the Terms of Service set forth in this Agreement.
“Authorized User Fee” means the subscription fee that
is due from Customer for each Authorized User access issued
under this Agreement as set forth in Exhibit A.
“Password” means the unique password assigned to
each Authorized User by Innovata that permits access to the
Flightmaps Analytics service.
Customer Rights and Obligations
License Grant. Subject to the terms of this Agreement,
Innovata hereby grants Customer a non-exclusive, nontransferable,
personal right and license during the Agreement
Term to allow the number of Authorized Users for which
Customer has purchased subscriptions to access and use the
Innovata Content via the Flightmaps Analytics service solely for
Customer’s internal business purposes.
Restrictions. Except as expressly authorized in this
Agreement, Customer: (i) will use reasonable efforts to ensure
that the Innovata Content accessed is not distributed or displayed
in any way to any third party; (ii) will take all reasonable steps to
protect the Flightmaps Analytics service from unauthorized
access or use; (iii) will use best efforts to prevent third parties
from obtaining Passwords; and (iv) will immediately inform
Innovata of any actual or potential unauthorized access to a
Password or to Flightmaps Analytics service . Innovata reserves
all rights not expressly granted in this Agreement.
Fees and Payment
Authorized User Fees. Customer agrees to pay
Innovata the subscription fees under the terms and payment
conditions set forth in Exhibit A. Subscription to the Service
provides each Authorized User with a twelve (12) month
continuous unrestricted and unlimited access to the Innovata
content within the Flightmaps Analytics service.
Payment/Timing. Payment shall be paid in full and in
advance for each annual subscription and all Authorized Users'
passwords will be issued on receipt of payment as set forth in
Exhibit A. All amounts are due in United States Dollars and are
net of any taxes or applicable wire transfer fees. Customer
agrees that it will be responsible for all sales, use or services
taxes of any kind, with the exception of taxes based on Innovata's
LLC’s income. Customer may extend subscription rights and
maintain access for Authorized Users for subsequent twelve (12)
month periods on payment of the appropriate fees.
All rights, title, and interest in the Innovata Content shall remain
exclusively with Innovata. Access to the Flightmaps Analytics
service and the Innovata Content is provided to Authorized Users
only to allow Customer to exercise Customer’s rights under this
Customer acknowledges and agrees that any collection and
compilation of data may result in the likelihood of some human
and machine errors or omissions. ACCORDINGLY, CUSTOMER
AGREES THAT INNOVATA PROVIDES THE CONTENT ON AN
“AS-IS” AND “WHERE-IS” BASIS. INNOVATA DOES NOT
WARRANT THAT THE INNOVATA CONTENT WILL BE ERROR
FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.
INNOVATA MAKES NO WARRANTIES WITH RESPECT TO
THE ACCURACY OF THE INFORMATION ACCESSED,
WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND INNOVATA EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF
THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, OR ARISING FROM A
COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Limitations of Liability
CUSTOMER AGREES THAT IN NO EVENT WILL
INNOVATA BE LIABLE TO CUSTOMER OR TO ANY THIRD
PARTY CLAIMING THROUGH CUSTOMER FOR THE
RESULTS OF CUSTOMER’S OR ITS AUTHORIZED USERS’
USE OF THE INNOVATA CONTENT, OR FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE
DAMAGES EVEN IF INNOVATA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
THE CUMULATIVE LIABILITY OF INNOVATA TO
CUSTOMER FOR ALL CLAIMS ARISING UNDER THIS
AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE TOTAL
ANNUAL AMOUNT OF ALL FEES PAID TO INNOVATA BY
Innovata shall, at its expense, defend, indemnify, and hold
Customer and its Authorized Users harmless from and against
any claim, suit, proceeding or loss, damages or liability of any
kind resulting from, arising out of, or related to a claim that the
Innovata Content infringes or misappropriates any third party
copyright, I.P, trade secret, or U.S. patent; provided that
Customer provides Innovata with prompt notice of such claims,
and provides Innovata with reasonable assistance with respect to
the defense thereof. In the event that the use of the Innovata
Content is or may be enjoined, Innovata will use commercially
reasonable efforts to replace the infringing Content with noninfringing
Content. CUSTOMER ACKNOWLEDGES THAT THE
FOREGOING INDEMNITY AND LIMITED REMEDY IS
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND
INNOVATA'S SOLE AND EXCLUSIVE LIABILITY, WITH
RESPECT TO THE INFRINGEMENT BY THE CONTENT OF
ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
This Agreement shall be governed by the laws of the State of
Georgia. This Agreement may not be modified except by a
written instrument signed by both parties.