GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF TECHNICAL PUBLICATIONS
THESE TERMS AND CONDITIONS (hereinafter these “Terms” or this “Agreement”) are by and between the person or entity who is seeking a license to the technical publications (hereinafter, the “Customer”) and Short Brothers PLC., or its subsidiaries or affiliates, as applicable (hereinafter referred to as “Shorts”). The term “Customer” shall not include independent contractors of the Customer, consultants to the Customer, agents of the Customer or other third parties. The terms and conditions set forth herein apply to the granting of a right to use the technical publications as well as all related revisions services of maintenance, flight operations and other ancillary manuals which are distributed in various formats, including videos and applications by Shorts. (hereinafter collectively, the “Publications”).
The services or support to be provided under this Agreement may be provided by Shorts or its subsidiaries or affiliates or a Shorts designated third party. Where services or support are provided by a Shorts subsidiary or affiliate, the provisions of this Agreement shall apply to such subsidiary or affiliate and Shorts shall be replaced in the relevant sections pertaining to such service or support by the name of the applicable subsidiary or affiliate providing the service or support.
Customer acknowledges that the Publications contain proprietary and confidential information of Shorts and that Shorts owns all right, title and interest (including but not limited to copyrights) in the Publications. Customer understands and agrees that Customer obtains no right, title, interest or ownership in the Publications and does hereby assign all of its right, title and interest (including without limitation, any copyrights) in and to the same to Shorts. As between Shorts and Customer, such Publications shall remain the sole and exclusive property of Shorts. No part of the Publications may be reproduced or used to create derivative works, stored in any retrieval system, or transmitted in any part or form by any means, whether electronic, photocopying, microfilm, microfiche, mechanical or otherwise. Publications provided in electronic format can be used only on a single computer, tablet or other electronic device controlled by Customer at any one time. Neither concurrent use on two or more computers (including related computing and hand-held electronic devices), nor use in a network, is permitted, unless Customer has paid for multiple licenses for the Publications. A separate license is required for each computer, tablet, or other electronic device on which the Publications are installed.
Subject to the terms and conditions of this Agreement, and until expiration or termination of this Agreement, Shorts grants Customer a non-exclusive, personal, non-transferable, non-sublicensable, revocable right and license to use the Publications solely on a need-to-know basis and for maintenance, repair and operation of Customer’s aircraft. Customer is expressly prohibited from copying, reproducing, scanning, distributing, modifying, disassembling, de-compiling, reverse engineering or creating derivative works from Publications (or facilitating any such actions) including but not limited to any of the following reasons: (a) designing, reproducing or manufacturing products, materials, processes or services, including without limitation maintenance support software or (b) creating, developing or deriving parts, materials or modifications; or (c) making the Publications available to third parties whether it be in paper copy form or electronically such as making manuals available via the internet. Customer agrees not to use or disclose the Publications or any information and data contained therein to any third party except as expressly authorized above. Except for the license granted herein, nothing in this Agreement shall be construed as granting to Customer any ownership right in, license to or authority to edit, modify, adapt, display or otherwise use the Publications.
All payments shall be made in full within 30 calendar days of the date of the invoice from Shorts, except where Shorts and Customer have previously agreed, in writing, to other payment terms. Interest will be charged on all overdue amounts from the due date for payment at the annual rate of 8% above the Bank of England base lending rate from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. Customer shall make all payments hereunder without set-off, deduction or counter claim of any kind.
Customer warrants that it will provide to Shorts up-to-date and accurate contact and billing information upon subscription to the Publications. The Customer agrees to notify Shorts within 30 calendar days in writing of any change in its personal or billing information. Customer shall immediately notify Shorts in writing in the event the Publications, or the tablet or other electronic device on which the Publications applications were downloaded has been lost, stolen or destroyed.
All notices to be sent by Customer to Shorts under this Agreement shall be sent to the following e-mail address: Bfs_Tech_Pubs@aero.bombardier.com
Customer agrees to pay all reasonable attorneys’ fees, costs and expenses incurred by Shorts as a result of any breach of this Agreement by Customer.
When not made available electronically by Shorts, the Publications will be shipped Carriage Paid To (CPT) Shorts named place of destination (Incoterms® 2010) using basic ground service (or basic international courier service for destinations outside United Kingdom) to Customer. The cost of such shipping is included in the price of the Publications. Charges for other delivery options (including but not limited to express or priority delivery) are not included in the price of the Publications, and Customer shall be responsible for and pay any additional costs incurred by Shorts to accommodate Customer’s request for other delivery options.
Except for corporate income taxes charged on Shorts’ net income, Customer shall be responsible for the payment of any taxes, including but not limited to sales, use, excise, goods and services, value added, consumption, withholding or other taxes, levies, imposts, tariffs, duties or assessments and any related penalties and interest, which may be levied, assessed, or imposed on Customer or Shorts or otherwise by any governmental authority or agency as a result of or in connection with this Agreement (“Taxes”). Customer agrees to indemnify and hold Shorts harmless from the payment or imposition of any Taxes.
A. No Warranties/Representations
THE OBLIGATIONS AND LIABILITIES OF SHORTS AND THE RIGHTS AND REMEDIES OF CUSTOMER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND SHORTS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE AND CUSTOMER HEREBY WAIVES AND RELEASES ALL WARRANTIES AND OTHER OBLIGATIONS AND LIABILITIES, EITHER EXPRESS OR IMPLIED, ARISING BY LAW, IN CONTRACT, CIVIL LIABILITY OR IN TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT AND ANY OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF CUSTOMER TO ANYONE OF ANY NATURE WHATSOEVER BY REASON OF THE USE OF THE PUBLICATIONS OR RELATED PRODUCTS AND SERVICES DELIVERED OR DISTRIBUTED HEREUNDER OR OTHERWISE. SHORTS HAS NOT AUTHORIZED ANY THIRD PARTY, INCLUDING THE SHORTS DESIGNATED THIRD PARTIES, TO MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES, GUARANTEES, COVENANTS, OR AGREEMENTS, ORAL OR WRITTEN ON SHORTS’ BEHALF, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT NO SUCH THIRD PARTIES ARE THE AGENT OF SHORTS AND THAT SHORTS SHALL NOT BE BOUND BY THE SAME. THE LAWS OF SOME STATES DO NOT PERMIT CERTAIN LIMITATIONS ON OR DISCLAIMER OF WARRANTIES OR REMEDIES. IN THE EVENT SUCH A LAW APPLIES, THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE AMENDED INSOFAR, AND ONLY INSOFAR, AS REQUIRED BY SAID LAWS.
B. LIMITATION OF LIABILITY
Customer acknowledges that the prices Shorts has agreed to charge Customer for the Publications or related goods and services covered by this Agreement have been agreed upon by Shorts in reliance upon Customer’s agreement limiting Shorts ‘ liability as set forth below, and that without such agreement, Shorts would be unwilling to provide such Publications or related products and services for the price and the terms set forth herein. SHORTS’ LIABILITY ON ANY CLAIM OF ANY KIND, INCLUDING BREACH OF CONTRACT OR WARRANTY OR FOR NEGLIGENCE OR OTHER CONDUCT, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE SALE, DELIVERY OR USE OF ANY PUBLICATIONS OR RELATED GOODS AND SERVICES COVERED BY, DELIVERED, DISTRIBUTED OR FURNISHED UNDER THIS AGREEMENT SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PUBLICATIONS OR RELATED GOODS AND SERVICES WHICH GIVE RISE TO THE CLAIM. IN NO EVENT SHALL SHORTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES OF ANY KIND OR NATURE UNDER ANY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS OR ANY OTHER LOSSES OR DAMAGES FOR OR ARISING OUT OF ANY LACK OR LOSS OF USE OF THE PUBLICATIONS OR RELATED PRODUCTS AND SERVICES FOR ANY REASON. THE LAWS OF SOME STATES DO NOT PERMIT CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITIES, OBLIGATIONS, WARRANTIES, RIGHTS OR REMEDIES. IN THE EVENT SUCH A LAW APPLIES, THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE AMENDED INSOFAR, AND ONLY INSOFAR, AS REQUIRED BY SAID LAWS.
This Agreement is entered into for an initial term of one year from the date of receipt by Shorts of the order form signed by Customer (the “Effective Date”) and shall be renewed automatically for consecutive terms of one year (each a “Subscription Term”), as described in Paragraph B.2 (“Revision Services”) below, unless terminated as provided herein. Upon termination of the Agreement, any license provided under this Agreement shall immediately be terminated.
A. Termination by Shorts
A.1. For Fault. Shorts may, by written notice to Customer, immediately terminate this Agreement including the license granted hereunder and suspend Customer’s subscription services, if: (i) Customer fails to comply with any of its obligations under this Agreement, including but not limited to, timely payment of all invoices of Shorts; or (ii) Customer, or any of its affiliates or the operating company of Customer’s aircraft, owes Shorts, any of its respective subsidiaries or affiliates any amounts for the Publications or for any other good or service provided to Customer and has failed to pay such amounts within the prescribed delays or within the delays provided in the notice of default relating to such obligation.
A.2. Insolvency. This Agreement shall immediately terminate in the event any proceedings are instituted by or against Customer under any bankruptcy statute or debtors’ relief laws, or in the event there is an arrangement with any creditor(s) or the appointment of a receiver or trustee or an assignment for the benefit of the creditors of Customer, or the institution of any similar proceedings.
A.3. Loss, Theft or Destruction. This Agreement may, at Shorts’ discretion, be suspended or terminated upon notification in writing by Customer that the tablet or other electronic device on which the Publications applications were downloaded has been lost, stolen or destroyed. The suspension of this Agreement and the related subscription and license for such Publications may be lifted, reinstated or a new one issued by notification of Customer to Shorts that such Publications or tablet or other electronic device has been found or replaced. No extension of this Agreement, refund or credit shall apply for the period of time the tablet, other electronic device or such Publications was lost, stolen or destroyed.
A.4. Payments upon Termination. If this Agreement is terminated by Shorts as provided herein, in addition to any other rights provided in this Agreement, all amounts due to Shorts under this Agreement shall be immediately due and owing, and Customer shall promptly pay the same as per the payment terms stated herein.
B. Termination by Customer
B.1. Return of Initial Provisioning of Publications. Customer may terminate this Agreement within 30 calendar days of placing the order with Shorts for the Publications, by advising Shorts in writing of its desire to terminate the Agreement and by returning any Publications it has in its possession. Upon receipt of such returned Publications, Shorts will credit to Customer the full amount paid to Shorts. No refunds (including credits) will be given if the Publications are not returned or the notice of termination are not received within the above mentioned 30 calendar day period.
B.2. Revision Services. Customer’s subscription to the Revision Services shall be automatically renewed at the end of each Subscription Term unless Customer advises Shorts in writing of its intention not to renew such Revision Services within 30 calendar days from the date of the invoice for the renewal. Customer shall be entitled to a credit for the invoiced amount if Customer’s written cancellation notice is received by Shorts within such 30 calendar days of the invoice date. No refunds or credits will be issued for revision services cancelled after the allotted 30 calendar days.
This Agreement is governed by and interpreted in accordance with the laws of Northern Ireland, including all matters of construction, validity and performance. The courts of Northern Ireland shall have exclusive jurisdiction in connection with any legal action, suit or proceeding with respect to any matter relating to or arising out of or in connection with this Agreement. The Parties fully waive any objection to the venue of such courts.
Failure by Shorts to assert all or any of its rights upon any breach of this Agreement shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. No written waiver of any right shall extend to nor affect any other right Shorts may possess, nor shall such written waiver extend to any subsequent similar or dissimilar breach.
Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, each party hereby waives any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
Customer shall be responsible for securing and complying with any European U.S. or Canadian or other governmental export or import licenses and governmental authorizations as may be required as a result of any purchase or use of goods or services from Shorts, and will otherwise comply with any applicable trade regulations. However, to the extent Shorts is required to obtain an export or import license or governmental authorization, Customer shall assist Shorts in obtaining any such export or import licenses and authorizations required. Shorts may refuse any order if the sale or delivery of any goods or services may cause, in Shorts’ sole discretion, a violation of any European, U.S., Canadian or other governmental export or import law or other trade regulations, including the Canadian Export and Import Permits Act, Special Economic Measures Act and United Nations Act, and the United States International Traffic in Arms Regulations, Export Administration Regulations, and Office of Foreign Assets Control sanctions and embargo programs.
Customer shall not assign any of its rights or obligations under this Agreement (including without limitation the license granted hereunder) without the prior written consent of Shorts, which consent Shorts may grant or withhold in its sole and absolute discretion. Any attempted assignment in violation of this Agreement shall be void. Shorts has the right to assign or transfer any of its rights under this Agreement to any of its subsidiaries or affiliates.
As of the Effective Date, the provisions hereof shall constitute the entire Agreement between the parties and supersede all prior offers, negotiations and agreements relating to the subject matter hereof, including but not limited to Customer’s terms and conditions presented to Shorts prior or subsequent to the date of this Agreement. This Agreement shall not be varied except in writing signed by both of the parties. For avoidance of doubt, the terms of a purchase order issued by Customer cannot change, supplement or modify the terms of this Agreement.
Unless otherwise stated in this Agreement (in particular with respect to the license to use the Publications), the terms of this Agreement and all other information including, without limitation, any and all designs, structures, assemblies, inventions, trade secrets, plans, discoveries, know-how, technical information, concepts, improvements, developments, technical knowledge, procedures, brochure, data, process, tooling, pricing and/or specification (hereinafter referred to as “Confidential Information”) which is:
b) developed, made, tested, observed or obtained by Customer in connection with or as a result of the service provided by Shorts or any of its subsidiaries or affiliates to Customer:
i ) are strictly confidential;
ii ) are exclusively the property of Shorts in all respects; and
iii) shall not be used or disclosed to any person or entity except to its advisors or other representatives having a need to know, acting on behalf of the Customer and who needs to have access to the Confidential Information to the extent necessary to ensure adequate advice and support solely with respect to the operation and maintenance of the Aircraft.
2. (a) provided by Customer to Shorts relating to contact, billing and business information related to the subscription and/or revision services of the Publications :
(i) are strictly confidential;
(ii) are exclusively the property of Customer in all respects; and
(iii) shall not be used or disclosed to any person or entity except to its personnel, advisors or other representatives or Shorts designated third parties having a need to know, acting on behalf of Shorts and who need to have access to the information to the extent necessary to ensure adequate advice and support solely with respect to this Agreement and are bound by similar confidentiality undertakings.
Customer hereby assigns, conveys and transfers to Shorts any and all rights, title and interest Customer may now or hereafter have or obtain (or be deemed to have or obtain) in any Confidential Information.
Shorts reserves the right to modify the terms and conditions of this Agreement from time to time without prior notice to the Customer.
The provisions of this Agreement other than those which relate to the granting of a license to Customer shall survive the termination, expiration, or cancellation of this Agreement.