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SOFTWARE LICENCE AGREEMENT

1.            Definitions:

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

"Documentation" means Licensor's user manuals, handbooks, and installation guides relating to the Software in any form or media, that describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.

"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

"Open-Source Components" means any software component that is subject to any open-source license agreement, including software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

"Site" means a defined geographic location or perimeter, as specified in Appendix A.

"(Support) Services" means, the services under Schedule B.

"System Maintenance and Improvement Data" means all data, information, and other content of any type and in any format, medium, or form, whether audio, visual, digital, screen, or other, that is input, uploaded to, placed into, or collected, stored, processed, generated, or output by any device, system, or network by or on behalf of Licensee or any Licensee Affiliate.

“User(s)” means the individuals Licensee authorizes to access the Software.

2.            Subject Matter.

 

2.1         This Software License Agreement (“License Agreement”) governs the Licensee's use of the FlightOps Software, their associated media or upgrades, electronic Documentation, patches, and updates and related Services (the “Software”) currently provided, or which will be provided by FlightOps.

 

2.2         All updates, enhancements, maintenance releases, patches, bug-fixes or other modifications to the Software provided to Licensee, on a when and if available basis (unless agreed otherwise is separate instruments), shall be governed by the terms and conditions contained under this License Agreement.

 

3.            Grant of License.

 

3.1         The Licensor hereby grants to the Licensee and Licensee's Affiliates, during the Term, a non-exclusive, royalty-free, perpetual, irrevocable (unless terminated according to the terms made herein), non-transferable and non-sub licensable, license to use the Software for the benefit of Licensee or any Licensee Affiliate internal business operations, and in accordance with the terms and conditions of this Agreement (the "License").

 

3.2         THIS SOFTWARE IS LICENSED TO LICENSEE, NOT SOLD.

 

3.3         The Licensee shall inform the Users of the Software of the material terms and conditions of this License Agreement. Licensee is responsible for ensuring that Users comply with the terms of this License Agreement, and Licensee is liable for any breach of the same by any User. The Licensee is responsible to train Users, and to supervise over their use of the Software, including (without limitation), their knowledge and compliance with the Software's user manuals, safety instructions, and their compliance with all the relevant aviation rules and regulations and the requirements of the aviation agencies and administrations having jurisdiction over Licensee or the airspace the Software is used in. Without prejudice to any provision of the user or safety manuals, The Software may not be used (1) to operate or control drones in no-fly zones or any other manner not complying with all the relevant aviation rules and regulations and the requirements of the aviation agencies and administrations having jurisdiction over Licensee or the airspace the Software is used in; or (2) if any part of the Software is fully or partially malfunctioned; or (3) if any part of any hardware used in conjunction with the Software is fully or partially malfunctioned.

 

3.4         Certain parts of the Software may be using third-party features, some of which are managed by third-party providers for which additional terms and/or costs may apply, as specified in annexes attached hereto or in separate instruments. Licensee must comply with such additional terms and/or costs in order to access and/or use such third-party features, and such use is at Licensee's risk. The Licensor does not provide support or guarantee ongoing integration support for products that are not a native part of the Software.

 

3.5         Free or open-source software not owned by FlightOps is subject to separate license terms. Any use of Open Source Components is governed by, and subject to, the terms and conditions of the applicable open source license made available with the Software or Documentation, or as available at: www.FlightOps.io ("Open Source License"), and Licensor provides no representations regarding the use of Open Source Components in the Software and/or compliance with their respective Open Source License.

 

3.6         The Licensee may use the Software in any number of users and drones for each specific Site. FlightOps reserves the right to change billing and pricing, including by transitioning to a per- capacity basis. Any changes to billing or pricing may be applied to this Agreement at the end of each billing cycle, with prior written notice of at least ninety (90) days.

 

3.7         The Licensee may not, directly or indirectly (i) sell, rent out, lease, loan, license, distribute, or market the Software or any of its parts, (ii) reverse engineer, decompile, disassemble, sniff ports, modify, adapt, reproduce, or create derivate works of this Software and/or Software installation, in whole or in part; (iii) remove, alter, disable or circumvent any encryptions or coding or copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this Software; (iv) make copies of the Software, including via server copying, by anyone (including by Licensee itself) other than by FlightOps or following a specific, per-case, written authorization by FlightOps; (v) combine or interface the Software with other systems or software without first receiving FlightOps' written approval; (vi) use the Software, Documentation, or user information accompanying the Software to assist, directly or indirectly, in the development or design of any computer hardware or software program including, but not limited to, a program that provides or is intended to provide or include a similar feature or functionality as the Software, or any conversion utility or aid relating to the Software intended to enable or facilitate a user’s conversion from the use of the Software to an alternative program; (vii) hack the Media Access Control address of any supplied hardware; (viii) export or re-export this Software or any copy of adaptation in violation of any applicable laws or regulations; (ix) create, use, share and/or publish by any means in relation to the Software any material (text, words, images, sounds, videos, etc.) which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act; (x) transfer or assign Licensee's rights to use the Software; (xi) use the Software in violation of applicable local, federal or other laws or regulations; and (xii) use the Software for any purpose other than as permitted in this License Agreement.

 

3.8         Integrating the Software with any third-party software or services, as well as accessing the Software's system data, shall be made exclusively via FlightOps official published API's and only after first receiving FlightOps' written approval.

 

3.9         Licensee shall not perform any Software updates itself, and FlightOps is solely allowed to perform such updates, in coordination with Licensee.

 

3.10       All rights not expressly granted hereunder are expressly reserved by FlightOps.

 

4.            Ownership.

 

4.1         All title and intellectual property rights in and to the Software, and any copies Licensee is permitted to make herein, are owned by FlightOps and/or its licensors and is protected by Israeli and other jurisdictions patent, copyright, trade secret, and other laws and by international treaty provisions. Such licensors, in addition to any other rights or remedies available to them, are third party beneficiaries of this License Agreement for their respective software and may have the right to enforce such terms against Licensee. This Software is licensed, not sold. Except as specifically set forth in Section 10 herein, the purchase of a license to the Software is final, non-returnable, and non-refundable for the applicable billing cycle. Acceptance of the Software occurs upon the Licensee installing the Software or upon being delivered with hardware pre-installed with the Software. No rights are granted to the Licensee other than a license to use the Software upon the terms expressly set forth in this License Agreement. The structure, sequence, organization, and source code of the Software are valuable trade secrets of FlightOps and/or its licensors.

 

4.2         Any work performed by FlightOps to the benefit pf the Licensee, including (without limitation) any development work, improvements on any existing Software components and including any application, integrations, testing, research, Support Services or any other services of any kind, will not grant Licensee with any Intellectual property rights in and to such work, and all such rights, title and interest will always vest in FlightOps, exclusively.

 

4.3         All rights in and to any Software improvement and development, conceived or made using System Maintenance and Improvement Data, or via any feedback or ideas provided by Licensee, shall vest in FlightOps exclusively.

 

4.4         Ownership of all Intellectual Property Rights in Open-Source Components remains with the respective owners thereof.

 

5.            License by Licensee.

The Software shall be installed on Licensee's servers. Therefore:

5.1         Licensee hereby grants to FlightOps and FlightOps' Affiliates, during the Term, an license to access Licensee's servers hosting the Software and applications.

 

5.2         Pursuant to the license granted under Section 3.1, FlightOps has the right and license to:

(a)          have unlimited access to Licensee's servers the Software and/or FlightOps' applications are loaded to, for diagnostics and billing purposes.

(b)          to receive or download system and service logs for purpose of providing support, bug fixes, and service.

(c)          to receive usage logs and reports including flight duration, distance, mission layout and route, drone status (takeoff, landing etc.) for purposes of billing, and for regulatory issues provided such information is anonymized.

(d)          to use the System Maintenance and Improvement Data, for Software maintenance, improvement and development.

 

6.            Audit Rights.

To ensure compliance with this License Agreement, the Licensee agrees that upon reasonable notice, FlightOps or FlightOps’ authorized representative shall have the right to inspect and audit Licensee's installation and use of the Software. Any such inspection or audit shall be conducted after coordination and during regular business hours at Licensee's facilities or electronically. Any information obtained during such audit will be used by FlightOps solely for the enforcement of FlightOps’ rights under this License Agreement and applicable law. If such audits disclose that the Licensee has installed, accessed, used, or otherwise permitted access to the Software in a manner that is not permitted by the terms of this License Agreement, then FlightOps may terminate this License Agreement immediately and the Licensee shall reimburse FlightOps for any unpaid license fees and all reasonable expenses related to such audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to FlightOps for violation of this License Agreement or applicable law.

7.            Software Provided for Beta, Demonstration, Test or Evaluation Purposes

If any Software is provided to Licensee for beta, demonstration, test or evaluation purposes, then, notwithstanding anything to the contrary in this License Agreement: (i) The licenses granted for such software shall be for a term of thirty (30) days (the “Evaluation Period”) unless otherwise agreed to in writing by FlightOps, and FlightOps reserves the right to terminate this License Agreement or any licenses granted for such software immediately upon written notice at its convenience; (ii) Licensee's use of such software is limited to use for demonstration, test or evaluation purposes, and the Licensee may not resell or otherwise transfer such software; (iii) The Licensee agrees to keep confidential and not to disclose or otherwise make publicly available any information related to such software, including, but not limited to test results, characteristics, and performance of such software; (iv) The Licensee shall not copy such software and not provide a copy of such software to anyone; (v) The Licensee shall not use such software  in a production environment or for production data processing purposes, and any use of such software  in a production environment or for production data processing purposes is at Licensee's sole risk to backup data and take other appropriate measures to protect Licensee's computer programs, systems and data; and (vi) the Licensee shall immediately, on or before the end of the Evaluation Period, promptly remove, destroy, and erase from computer memory and storage media any installed copy of such software , and return such software  to FlightOps together with all documentation and other materials provided by FlightOps. Limited duration licenses, beta, evaluation, test, or demonstration software products are delivered “AS IS” without a warranty of any kind. FlightOps shall have no obligation to support, maintain, or provide other assistance regarding any limited duration licenses, beta, evaluation, test, or demonstration software products. IF SUCH SOFTWARE IS PROVIDED TO THE LICENSEE FOR BETA, DEMONSTRATION, TEST, OR EVALUATION PURPOSES, IN NO EVENT WILL FLIGHTOPS BE LIABLE FOR ANY DAMAGES FOR ANY CAUSE OR ANY CLAIM BY LICENSEE OR ANY THIRD-PARTY CLAIM, INCLUDING BUT NOT LIMITED TO ANY DIRECT DAMAGES, ACTUAL DAMAGES, LOST PROFITS, LOST DATA OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF FLIGHTOPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF SUCH SOFTWARE IS PROVIDED TO THE LICENSEE FOR BETA, DEMONSTRATION, TEST, OR EVALUATION PURPOSES, then such software is provided on a capacity basis of time and/or data and/or operation, and if the Licensee exceeds the maximum designated capacity, such software will cease to partially or fully operate.

8.            No Warranty for Supplied Hardware.

 

If the Licensee purchased Software pre-installed on Hardware components, this Section 5 is applicable:

 

8.1         FlightOps warrants that the hardware containing the Software shall be free from defects in material and workmanship for seven (7) days from the date of delivery of such hardware to the Licensee. If the hardware containing the Software proves to be defective during such 7 days' period, FLIGHTOPS will, at FlightOps’ option, free of charge, (a) correct any defect, (b) replace the Hardware, (c) substitute with similar hardware of equal value, or (d) refund the purchase price. THIS IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION.

 

8.2         Without limiting the foregoing, it is always Licensee's responsibility to verify that any hardware operates correctly and without malfunctions and that it can support the safe operation of the Software for its intended use.

 

9.            Warranty Disclaimer, Limitation of Liability.

 

9.1         EXCEPT FOR SOFTWARE PROVIDED TO THE LICENSEE FOR BETA, DEMONSTRATION, TEST OR EVALUATION PURPOSES, FLIGHTOPS WARRANTS THAT THE SOFTWARE LICENSED HEREUNDER SHALL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH ITS USER DOCUMENTATION FOR A PERIOD OF TWELVE (12) MONTHS FROM WHEN THE SOFTWARE WAS FIRST DELIVERED TO LICENSEE (HEREINAFTER THE "WARRANTY PERIOD"). IF DURING THE WARRANTY PERIOD, ANY MATERIAL SOFTWARE FUNCTIONALLITY PROVES DEFECTIVE, THE LICENSEE MUST IMMEDIATELY NOTIFY FLIGHTOPS IN WRITING AND FOLLOW FLIGHTOPS' INSTRUCTIONS REGARDING THE REQUIRED REMEDIAL MEASURES. NOTHING IN THIS LICENSE AGREEMENT IS INTENDED TO EXCLUDE, RESTRICT OR MODIFY ANY RIGHTS THAT THE LICENSEE MAY HAVE UNDER ANY APPLICABLE LEGISLATION, WHICH MAY NOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT (HEREINAFTER THE “NON-EXCLUDABLE STATUTORY RIGHTS”). EXCEPT CONCERNING ANY NON-EXCLUDABLE STATUTORY RIGHTS, FLIGHTOPS' SOLE LIABILITY TO THE LICENSEE, AND LICENSEE'S SOLE REMEDY, SHALL BE, AT FLIGHTOPS' OPTION, (I) REPAIR THE SOFTWARE PRODUCT WHICH DOES NOT COMPLY WITH THIS LIMITED WARRANTY, OR (II) RETURN OF THE AMOUNT PAID BY THE LICENSEE FOR THE SOFTWARE PRODUCT WHICH DOES NOT COMPLY WITH THE LIMITED WARRANTY. IF FLIGHTOPS DETERMINES THAT THE SOFTWARE COMPLIES WITH THIS LIMITED WARRANTY, THE LICENSEE SHALL PAY THE COST OF ALL FLIGHTOPS' CHARGES ASSOCIATED WITH THE INSPECTION OF SUCH SOFTWARE. THE USER DOCUMENTATION IS THE EXCLUSIVE STATEMENT OF PERFORMANCE OF THE SOFTWARE LICENSED HEREUNDER.

 

9.2         FlightOps warrants that any services provided by FlightOps shall be provided in a timely, skillful, professional, and workmanlike manner by qualified personnel exercising care, skill, and diligence consistent with generally accepted industry standards.

 

9.3         Licensee's computer systems on which the Software is intended to be installed and operate, must be in good condition, meet the system requirements specified in the Documentation or as pre-approved by Licensor, with hardware suitable for supporting flying systems, stable, with connectivity, bandwidth and other communication characteristics that are suitable for the designated flight and data operating volumes. FLIGHTOPS DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE. THE LIMITED WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES. FLIGHTOPS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND FLIGHTOPS AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NO VIRUS. THE PROVISIONS SET FORTH ABOVE STATE FLIGHTOPS' AND ITS LICENSORS’ ENTIRE RESPONSIBILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY.

 

9.4         NO CONSEQUENTIAL DAMAGES. NEITHER FLIGHTOPS NOR ANY OF ITS LICENSORS, WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE LICENSEE OR ANY OTHER PARTY, FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF INFORMATION OR DATA OR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER REGARDLESS OF THE FORM OF ACTION, EVEN IF FLIGHTOPS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF THIS LIMITED WARRANTY.

 

9.5         LIMITATION OF LIABILITY. IN THE EVENT FLIGHTOPS OR ITS LICENSORS ARE SUBJECT TO ANY LIABILITY IN CONNECTION WITH THE SOFTWARE PRODUCTS OR ANY SERVICES FOR ANY REASON WHATSOEVER, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, NEITHER FLIGHTOPS' LIABILITY NOR THE LIABILITY OF ITS LICENSORS SHALL EXCEED THE SUM PAID BY THE LICENSEE TO FLIGHTOPS DURING THE 6 MONTHS PERIOD BEFORE THE INCIDENT GIVING RISE TO INDEMNIFICATION FOR THE SOFTWARE WHICH WAS FOUND TO HAVE NOT COMPLIED WITH THE LIMITED WARRANTY. THIS LIMITATION SHALL APPLY EVEN IF FLIGHTOPS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY.

 

9.6         THESE TERMS AND CONDITIONS, WARRANTIES, LIMITATIONS, AND REMEDIES CONTAIN AN ALLOCATION OF RISK BETWEEN THE LICENSEE AND FLIGHTOPS. ACCORDINGLY, FLIGHTOPS' PRICES REFLECT SUCH ALLOCATION OF RISK.

 

9.7         THE SOFTWARE MAY CONTAIN CERTAIN SOFTWARE LICENSED BY THIRD PARTIES TO FLIGHTOPS. SUCH LICENSORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS LICENSE AGREEMENT WITH THE RIGHT TO ENFORCE WARRANTIES AND ANY OTHER PROVISION OF THE LICENSE AGREEMENT AND TO VERIFY LICENSEE'S COMPLIANCE WITH SAME.

 

10.         Term; Termination

10.1       The initial term of this Agreement commences as of the Effective Date and continues in effect until five (5) years from such date unless terminated earlier pursuant to any of its express provisions (the "Initial Term").

10.2       Unless this Agreement is terminated earlier pursuant to any of its express provisions, this Agreement automatically renews for additional successive one (1)-year terms unless and until Licensee provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").

10.3       In addition to any other express termination right set forth elsewhere in this Agreement:

a)            At any time after eighteen (18) months following the Effective Date, Licensee may terminate, at any time without cause, and without incurring any obligation, liability, or penalty by reason of such termination, this Agreement and the Services (but not just one of the above), by providing at least ninety (90) days' prior written notice to Licensor.

b)           Either Party may terminate this Agreement, effective on written notice to the other party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

c)            Either Party may terminate this Agreement, effective immediately, if the other Party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.4       Within ten (10) Business Days after the effective date of any expiration or termination of the Agreement and any Services, Licensor will:

a)            provide reasonable cooperation and assistance to Licensee in transitioning the terminated Services to an alternate service provider;

b)           If this Agreement and the Services are terminated early by the Licensee for Licensor's breach (Section 10.3(b)), then Licensor shall refund to Licensee a pro rata share of all amounts, if any, prepaid for the Support Services and License Fees, which share will correspond to the percentage of the total then-current period represented by the portion of that period remaining after the effective date of such termination.

c)            If this Agreement and the Services are terminated early by the Licensee for convenience (Section 10.3(a)), Licensee shall pay Licensor all unpaid amounts, if any, for the then-current annual billing cycle, including all unpaid amounts, if any, payable for Support Services and License Fees, for the remaining duration of the then-current annual billing cycle.

d)           the Receiving Party (as defined in Clause 11 herein) shall: (i) return to the Disclosing Party all documents and tangible materials containing, reflecting, incorporating or based on the Disclosing Party's Confidential Information; and (ii) permanently erase the Disclosing Party's Confidential Information from its computer systems, except, in each case, to the extent that the Receiving Party requires or will require such Confidential Information to exercise any of its surviving rights or to perform any of its surviving obligations under this Agreement; (iii) permanently erase the Disclosing Party's Confidential Information from its computer systems; and (iv) certify in writing to the Disclosing Party that it has complied with the requirements of this Section 17.4(d). The foregoing shall not apply to any System Maintenance and Improvement Data.

e)           Without prejudice to any undertakings under Section ‎10.4(d), the Licensee shall immediately uninstall the Software, and shall promptly therewith remove, destroy, and erase from computer memory and storage media any installed copy of the Software and Source Code, and return the Software to Licensor together with any Documentation. Without prejudice to any other rights herein or at law, Licensor use the Software's embedded remote disabling capability to enforce its rights.

f)             The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement:  Section 12, Section 13.1, Section 14, Section 15, Section 16, Section 18, Section 17.4, and this Section 17.5.

11.         Confidentiality

11.1       In connection with this Agreement, each Party (the "Disclosing Party") may disclose or make available Confidential Information to the other Party (the "Receiving Party"). Subject to Section 11.2,  "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential."

11.2       Confidential Information does not include information the Receiving Party can demonstrate by written or other documentary records that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' non-compliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information or the Intellectual Property Rights of the Disclosing Party.

11.3       As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the entire Term of this Agreement and for a period of five (5) years thereafter:

(a)          perform its obligations under and in accordance with this Agreement.

(b)          except as may be permitted by and subject to its compliance with Section 11.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 11.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 11.3;

(c)          safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and

(d)          ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' noncompliance with, the terms of this Section 11.

(e)          the Receiving Party shall be responsible for any breach of or non-compliance with this Section 11 by any of its Representatives.

(f)           not duplicate any Confidential Information except as required for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement.

11.4       If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 11.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 11.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

12.         Support Services.

Schedule B sets forth the Parties' obligation concerning Support Services. The purchase of Support Services is mandatory during the entire duration of this License, for the entire aggregated Software licensed to Licensee.

Any software FlightOps and/or its licensors may provide the Licensee as part of Support Services, are governed by this License Agreement.

FlightOps may stop supporting previous versions of the Software upon the availability of an updated version unless separate terms are provided.

13.         Miscellaneous.

13.1       No advertisements, catalogs or other publications or statements, whether written or oral, regarding the performance of the Software licensed under this License Agreement shall form part of this License Agreement.

13.2 If any provision of this License Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this License Agreement shall remain in full force and effect.

13.3 This License confers no title or ownership in the Software and should not be construed as a sale of any rights in the Software.

13.5 The Software is subject to all applicable export restrictions. The Licensee must comply with all export and import laws, and regulations of any agency or authority of a competent jurisdiction relating to the Software and Licensee's use of the Software. Without limitation to the generality of the foregoing, The Software is regulated under the State of Israel's export control rules. Upon accepting the Software, Licensee shall sign the End User Certificate (Appendix c) required by the Government of Israel / Ministry of Defense and shall at all times fully comply with the provisions contained under such certificate (Appendix c).

13.6 Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.7 This Agreement, including the Services Agreement (Appendix B), are controlled and governed by the laws of the State of Israel, exclusively. The courts of Tel-Aviv District shall be the exclusive venue for any proceedings arising out or connected to this Agreement, and the parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.

13.8 Sections 3.2, 4, 9, 10, 11 13.7 and 13.8 shall survive termination or expiration of this License Agreement.

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