General Terms and Conditions of Boeing Services Deutschland GmbH (March 2016)
PLEASE READ THIS EULA CAREFULLY. IT CONSTITUTES A BINDING AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND BOEING SERVICES DEUTSCHLAND GMBH (“BOEING”) (sometimes hereinafter individually or collectively referred to as the Party or Parties, respectively) FOR THE USE OF TRAINING RELATED MATERIALS IN ELECTRONIC SOFTWARE AND/OR PRINTED FORMAT (“MATERIALS”). YOUR USE OF THESE MATERIALS IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS EULA. IF YOUR EMPLOYER OR ANY FLIGHT TRAINING FACILITY YOU MAY PURCHASE TRAINING FROM HAS A SEPARATE AGREEMENT WITH BOEING RELATED TO THESE MATERIALS, THEN ANY ADDITIONAL TERMS AND CONDITIONS IN THAT AGREEMENT WILL APPLY TO YOUR USE OF THESE MATERIALS. BY CHECKING THE "I HAVE READ, UNDERSTOOD, AND ACCEPTED THE GENERAL TERMS AND CONDITIONS" BOX AND/OR USING THE MATERIALS, YOU AGREE TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS CONTAINED IN THIS EULA, INCLUDING ITS DISCLAIMER OF WARRANTY AND RELEASE. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, DO NOT USE THESE MATERIALS. In the event of any inconsistency between this EULA and any other agreements with Boeing related to these Materials, the other agreements will take precedence in each case.
1.DEFINITIONS. “Materials” means items that are: (i) created by Boeing or a Third Party, (ii) provided directlyor indirectly from Boeing, and (iii) serve primarily to contain, convey, or embody information. Materials may include either tangible forms or intangible embodiments (for example, software and other electronic forms) of information, but excludes aircraft software. “Proprietary Information” means proprietary, confidential, and/or trade secret information owned by Boeing or a Third Party which is contained, conveyed, or embodied in Materials. “Proprietary Materials” means Materials that contain, convey, or embody Proprietary Information. All Materials provided to You pursuant to this EULA are considered Proprietary Materials. “Third Party” is anyone not a party to this EULA.
2.OWNERSHIP. These Materials contain valuable Proprietary Information of Boeing, including its licensors, andis protected by copyright and other intellectual property laws and treaties. Boeing and its licensors retain all right, title and interest in the copyrights, patents, trade secrets, branding, trademarks and other intellectual property rights pertaining to these Materials. These Materials are licensed, not sold to You, and You agree not to use these Materials except in their intended manner in accordance with the terms of this EULA.
3.LICENSE USE AND RESTRICTIONS ON USE. The license granted to You is limited to a non-transferablelicense to use these Materials. You shall not sublicense or otherwise transfer, modify, create derivative works, or distribute copies of Materials or accompanying materials to any Third Party. These Materials must be used strictly in accordance with any applicable regulatory agency and aircraft operator requirements. Boeing’s provision of these Materials does not imply that it meets any regulatory agency approval requirements or that it may be used during operation, repair and maintenance of an aircraft. These Materials should not be used without reviewing all user instructions from Boeing. IN ADDITION, THESE MATERIALS MAY NOT BE USED WHERE SUCH USE MIGHT INTERFERE WITH THE SAFE OPERATION OF AN AIRCRAFT OR IF PROHIBITED BY APPLICABLE LAW.
You shall not: (a) copy, reproduce, or publish these Materials; (b) distribute copies of these Materials or accompanying materials to others; (c) modify, adapt, translate, reverse engineer, or decompile these Materials or create derivative works based on these Materials; (d) modify, adapt, translate, or create derivative works based on the printed, electronic, or written materials; (e) assign, rent, lend, or sublease these Materials; or (f) sell or transfer these Materials.
4.SPECIAL PROVISIONS OF MATERIALS BY ELECTRONIC ACCESS.
4.1 TERM OF ELECTRONIC ACCESS. If You purchase the online version of these Materials, Your access to these Materials will expire twelve (12), twenty four (24), or thirty six (36) months after the date of Your initial transaction. The expiration date is dependent on the option you select during the purchase process.
4.2 In addition to any other remedy Boeing may have, Boeing has the right to monitor all electronic access by You, and immediately discontinue electronic access, in the event Boeing determines that You have breached any provisions of this EULA.
4.3 All Materials provided by electronic access are Proprietary Materials whether or not they are marked as such, and are subject to the provisions of this EULA.
4.4 You will not share Your electronic access with any Third Party.
5.TERMINATION. This EULA will automatically terminate if You fail to comply with any term of this EULA orany applicable law. Boeing may terminate this EULA at any time for convenience by providing You with written notice and such termination will be effective immediately.
6.SURVIVAL. Your obligations in the articles of this EULA relating to “Ownership”, “License Use andRestrictions on Use”, “Exclusion of Consequential and Other Damages”, “Disclaimer of Warranty and Release, “Indemnification”, “Export Compliance”, and “Confidentiality” will survive termination of this EULA.
7.EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVENO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING), OR OTHERWISE, FOR LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY OF THE MATERIALS, DATA, SOFTWARE SERVICES OR ITEMS PROVIDED TO USER, WHETHER OR NOT BOEING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL BOEING’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THESE MATERIALS EXCEED THE PRICE PAID FOR THESE MATERIALS OR FIVE HUNDRED U.S. DOLLARS (U.S. $500.00), WHICHEVER IS LESS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.DISCLAIMER OF WARRANTY AND RELEASE. THE MATERIALS ARE PROVIDED “ASIS” AND BOEING MAKES NO WARRANTY OR GUARANTEE WHATSOEVER IN CONNECTION WITH THE FURNISHING OF ANY MATERIALS OR THE USE OR IMPLEMENTATION OF THESE MATERIALS INCLUDING WITHOUT LIMITATION THAT THE FUNCTIONS CONTAINED IN THESE MATERIALS WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THESE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THESE MATERIALS WILL BE CORRECTED. YOU HEREBY WAIVE, RELEASE AND RENOUNCE ANY AND ALL OBLIGATIONS AND LIABILITIES OF BOEING AND RIGHTS, CLAIMS AND REMEDIES OF YOURS AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN SUCH MATERIALS, DATA, SOFTWARE SERVICES OR OTHER ITEMS PROVIDED TO YOU, INCLUDING BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OR NON-INFRINGEMENT;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM BOEING’S NEGLIGENCE AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT OR SPARE PART OR ANY MOBILE COMPUTING DEVICE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
If a court of competent jurisdiction determines that relevant laws in force may imply warranties and liabilities which cannot be excluded or limited or which can only partly be excluded or limited, then the limit on Boeing’s liability set forth in this article will apply to the fullest extent permitted by law. If Boeing cannot exclude or limit a warranty or liability implied by law, this EULA will be read and construed subject to such provisions of law.
9.INDEMNIFICATION. You will defend, indemnify and hold harmless Boeing, its licensors, its subsidiaries andaffiliates, the assignees of each, and their respective directors, officers, employees, agents, and subcontractors from and against all claims and liabilities (including claims by any Third Party), and costs and expenses (including attorneys' fees), incident thereto or incident to successfully establishing the right to indemnification, arising out of or relating to any claims for injury to or death of any person or persons, including Your employees, or for loss of or damage to any property, including any aircraft, or otherwise arising out of or in any way relating to Your utilization of these Materials provided hereunder, whether or not arising in tort or occasioned by the negligence of Boeing.
10.EXPORT COMPLIANCE. You are responsible for Your compliance with any applicable export controlrestrictions, laws and regulations as may be modified from time to time, imposed by the governments of the U.S. and, if applicable, other countries. You shall not attempt to, or knowingly export or re-export the Materials covered under this EULA to any country or national thereof prohibited from obtaining such Materials, either directly or indirectly. Each party shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to conduct its respective activities hereunder. Nothing in this article releases You from any obligation stated elsewhere in this EULA not to disclose such Materials.
11.ENTIRE AGREEMENT. This EULA contains the entire understanding of the Parties hereto relating to thesubject matter hereof. No waiver or modification of any of the terms hereof by You will be valid unless in writing and signed by both Boeing and You. No waiver of any breach will be deemed a waiver of any subsequent breach. If any provision of this EULA is held to be invalid or unenforceable, the remaining provisions will not be affected.
12.GOVERNING LAW. THIS EULA WILL BE INTERPRETED UNDER AND GOVERNED BY THE LAWSOF THE STATE OF WASHINGTON, U.S.A., EXCEPT THAT WASHINGTON’S CHOICE OF LAW RULES SHALL NOT BE INVOKED FOR THE PURPOSE OF APPLYING THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS EULA.
13.CONFLICTING DOCUMENTS. In the event You issue a purchase order for Your request of these Materials,the terms and conditions therewith are hereby rejected by Boeing and this EULA will govern and take precedence over all other terms and conditions contained on or referenced by such purchase order.
14.PAYMENT. Payment for the Materials is due upon acceptance of this EULA. The forms of Payment acceptedby Boeing are credit card and PayPal. Payment will be due and payable in Euros (EUR). Boeing may suspend or defer delivery of any Materials without penalty until payment is received.
15.TAXES. Taxes are defined as all taxes, fees, charges or duties and any interest, penalties, fines, or otheradditions to tax, including, but not limited to, sales, use, value-added, gross receipts, stamp, excise, transfer and similar taxes imposed by any domestic or foreign taxing authority arising out of or in connection with this EULA. Except for income taxes imposed on Boeing in a jurisdiction where Boeing maintains an establishment to conduct business, You will be responsible for and pay all Taxes.
15.1 If any payments to Boeing under this EULA are subject to withholding tax, You will pay to Boeing such gross amount that after payment of the withholding tax, would result in the receipt by Boeing of the full amount due under this EULA (i.e., Boeing will receive as net payments the full amount specified in this EULA regardless of the amount of withholding taxes paid). You will notify Boeing of the payment of any Taxes made in the name of Boeing and provide Boeing with the appropriate receipts for such tax payments. Boeing is responsible for all tax administration decisions for taxes imposed on Boeing.
15.2 Value Added Taxes. Unless otherwise stated, all prices in this EULA are exclusive of Goods and Services, Consumption and/or Value-Added Taxes (collectively termed “VAT”). If the supplier of a supply made under or in connection with this EULA is liable by law to pay VAT on the supply, the consideration otherwise payable by the recipient of the supply will be increased by an amount equal to the VAT paid or payable by the supplier. Each party agrees to do all things, including providing tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, set-off, rebate or refund in relation to any amount of VAT paid or payable in respect of any supply under this EULA.
16.DELIVERY. Boeing will deliver Materials to the address provided in the order. Delivery times specified byBoeing are not binding. You will pay shipping charges for Materials and any associated customs fees. Changes to an order shall result in the cancellation of previously agreed dates and deadlines, unless agreed otherwise by Boeing.
17.EXCUSABLE DELAY. Boeing will not be liable for any delay in performance of this EULA caused by: (i) actsof God; (ii) war or armed hostilities; (iii) government acts or priorities; (iv) fires, floods, or earthquakes; (v) strikes or labor troubles causing cessation, slowdown or interruption of work; (vi) inability, after due and timely diligence, to procure materials, systems, accessories, equipment, or parts; or (vii) any other cause to the extent such cause is beyond Boeing's control and not occasioned by Boeing's fault or negligence. A delay resulting from any such cause is defined as an Excusable Delay and the date for completion of Boeing's performance will be equitably extended.
18.BOEING DEFINITION. For the purpose of the articles entitled “Exclusion of Consequential and OtherDamages”, “Disclaimer of Warranty and Release,” “Indemnification”, and “Excusable Delay”, “BOEING” or “Boeing” shall include Boeing Services Deutschland GmbH, The Boeing Company (Boeing), its divisions, subsidiaries, subcontractors, and affiliates, the assignees of each, and their respective directors, officers, employees and agents.
19.ASSIGNMENT. This EULA is for the benefit of and is binding upon each of the parties hereto and theirrespective successors and permitted assigns. No rights or duties of either party may be assigned, delegated or contracted to be assigned or delegated by either party except: (i) Boeing may assign any of its rights to receive money; and/or (ii) Boeing may assign all or any part of its rights and obligations under this EULA to any entity that Boeing or Boeing has an interest, provided that Boeing will remain responsible for all obligations and liabilities and You will continue to deal exclusively with Boeing.
20.CONFIDENTIALITY. The information contained herein represents confidential business information and hasvalue precisely because it is not available generally or to other parties. You will not disclose Proprietary Information or Proprietary Materials to any Third Party and You will limit the disclosure of its contents to employees of Yours with a need to know the contents for purposes of helping You perform Your obligations under this EULA and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing.
22.PRIVACY NOTICE. Your personally identifiable information (PII) may be collected by Boeing. PII collected will only be shared with Third Parties if there is a legitimate business purpose related to this EULA or a regulatory compliance purpose. Your failure to provide the requested PII may lead to cancelation of this EULA or suspension of delivery of the Materials.
Version 5.0, March 2016