This Software License Agreement ("Agreement") is made as of the date a REGISTRATION KEY is purchased, by and between Pacific Feelings Media ("Developer") and the user of the It's Your Plane proprietary software. ("Licensee").
Developer has developed and licenses to Licensee its software program marketed under the names It's Your Plane software and IYP (the "Software").
Licensee desires to utilize a copy of the Software.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Developer and Licensee agree as follows:
Developer hereby grants to Licensee a perpetual, non-exclusive, limited license to use the Software as set forth in and pursuant to the conditions of this Agreement.
Licensee shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else.
Delivery of the Software shall be made upon the purchase of a REGISTRATION KEY by the Licensee in an amount as set forth on the date of purchase and published on the site of the Developer.
4. Warranty of Title.
Developer hereby represents and warrants to Licensee that Developer is the owner of the Software or otherwise has the right to grant to Licensee the rights set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, Licensee's sole remedy shall be to require Developer to refund to Licensee the full amount of the license fee.
5. Warranty of Functionality.
For a period of 30 days following delivery of the Software to Licensee (the "Warranty Period"), Developer warrants (the "Warranty") that the Software shall perform in all material respects according to the Developer's specifications concerning the Software when used pursuant to the installation instructions as set forth in the Developer's User's Manual, and with appropriate and suitable computer equipment. In the event of any observed problems with the Software during the Warranty Period, the Licensee agrees to assist the Developer in resolving the problems to the fullest extent possible. Failure on the part of the Licensee to assist the Developer in diagnosing and/or resolving the reported problems, shall constitute a breach of the Agreement by the Licensee and thus terminate the Agreement. The Licensee is entitled to a full refund of the REGISTRATION KEY amount in the event of a failure on the part of the Developer to meet the conditions of said Warranty during the Warranty Period and the Software shall be deactivated.
6. Limited Warranty.
In the event of any observed problems with the Software beyond the Warranty Period, the Licensee agrees to assist the Developer in resolving the problems to the fullest extent possible. Failure on the part of the Licensee to assist the Developer in diagnosing and/or resolving the reported problems, shall constitute a breach of the Agreement by the Licensee and thus terminate the Agreement.
7. Termination of Agreement.
The Developer may at its sole discretion and without restrictions elect to deactivate the FREE version of its Software. The Developer may at its sole discretion and without restrictions elect to refund to Licensee the full amount of the REGISTRATION KEY and deactivate the REGISTERED version of its Software.
8. Software Maintenance.
Developer shall provide to Licensee any new, corrected or enhanced version of the Software as created by Developer. Such enhancement shall include all modifications to the Software which increase the speed, efficiency or ease of use of the Software, or add additional capabilities or functionality to the Software, but shall not necessarily include any substantially new or rewritten version of the Software.
Neither party shall do anything, during the term of this agreement, to frustrate or prevent the other party from obtaining and enjoying the full benefit of such other party's rights under this agreement. Each party shall act in good faith and engage in fair dealing when taking any action under or related to this agreement.
In addition to all other amounts due hereunder, Licensee shall also pay to Developer, or reimburse Developer as appropriate, all amounts due for property tax on the Software and for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Developer. In no event shall Licensee be obligated to pay any tax paid on the income of Developer or paid for Developer's privilege of doing business.
11. Warranty Disclaimer.
DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability.
Developer shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer's liability hereunder exceed the amount of license fees paid by Licensee, regardless of whether Licensee's claim is based on contract, tort, strict liability, product liability or otherwise.
If Developer discontinues its sales, licensing and/or distribution of the Software, without intent to resume, it shall so notify all Licensees a minimum of thirty (30) days before such discontinuance is to occur. Such NOTICE shall be sent to each Registered user (Licensee) via the e-mail address previously provided by said user. In the event of discontinuance, Developer shall make a best effort to provide alternative ONLINE facilities, however, there can be no guarantee that such facilities will be available, or if they are, that they will remain in effect. If online facilities become unavailable, the Free Version of the Software, and the SuperATC Software, will no longer be available or operational. It is the intent of the Developer that each Registered Licensee shall have the opportunity to continue to use the Registered Software in the OFFLINE mode.
In the event that Developer is incapacitated either by illness or death and is unable to support the Software either online or offline, every possible effort will be made to notify all Licensees of such an event as soon as possible.
Any notices required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by e-mail to the address previously provided by said party.
15. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of the province of British Columbia, Canada.
16. No Assignment.
Neither this Agreement nor any interest in this Agreement may be assigned by Licensee.
17. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof.
In case this Agreement is found to contain any mistake, including any error, ambiguity, illegality, omission, etc., then, it shall be interpreted as if such mistake were rectified in a manner which implements the intent of the parties as nearly as possible and effects substantial fairness under all circumstances.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Pacific Feelings Media
36025 Empress Drive
Abbotsford, BC V3G 1L2
Acceptance of this License Agreement is indicated ONLINE by Licensee when Registering to use the Software.
On file as part of the Account set up procedure.