LICENSE AGREEMENT FOR HELIO RC, LLC EMBEDDED SOFTWARE IMPORTANT READ CAREFULLY:
THIS LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND HELIO RC, LLC, A CORPORATION HAVING A PRINCIPAL ADDRESS OF 1379 E CANYON CREEK DRIVE, GILBERT, AZ 85295 (THE “LICENSOR”). THIS LICENSE AGREEMENT GOVERNS YOUR USE OF ANY SOFTWARE AND OTHER MATERIALS (SOFTWARE AND OTHER MATERIALS INDIVIDUALLY OR COLLECTIVELY REFERRED TO AS “LICENSED MATERIALS” OR “LM”) THAT IS (1) PROVIDED BY LICENSOR OR ITS AFFILIATES; (2) EMBEDDED OR INSTALLED IN, OR ASSOCIATED WITH, FLIGHT CONTROLLER, ELECTRONICS MODULE, SENSOR, ACTUATOR, OR COMPUTING UNIT (INDIVIDUALLY OR COLLECTIVELY “LICENSED PRODUCTS” OR “LP”) OF HELIO RC EQUIPMENT OR OF OTHER EQUIPMENT THAT IS MADE A PART OF A SALE OR LEASE TO YOU (EITHER OR BOTH HELIO RC AND SUCH OTHER EQUIPMENT REFERRED TO AS “AUTHORIZED EQUIPMENT”); AND (3) NOT OTHERWISE LICENSED BY A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND LICENSOR OR ITS AFFILIATES, OR (4) NOT OTHERWISE LICENSED BY A THIRD PARTY (OR SUPPLIER).
BY ACTIVATING OR OTHERWISE USING THE LP, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT WITH RESPECT TO THE LM THAT HAVE BEEN PREINSTALLED ON YOUR LP. YOU AGREE THAT THIS LICENSE AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, TERMINATION, AND ARBITRATION PROVISIONS BELOW, IS BINDING UPON YOU, AND UPON ANY COMPANY ON WHOSE BEHALF YOU USE THE LM AND LP AS WELL AS THE EMPLOYEES OF ANY SUCH COMPANY (COLLECTIVELY REFERRED TO AS “YOU” IN THIS LICENSE AGREEMENT). IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF YOUR COMPANY OR ITS EMPLOYEES, DECLINE THESE TERMS AND CONDITIONS AND DO NOT USE THE LP OR THE AUTHORIZED EQUIPMENT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE LM BETWEEN YOU AND THE LICENSOR AND IT REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN YOU AND THE LICENSOR.
1. Definitions. Licensed Materials (“LM”) shall mean any software, data files, documentation, configuration files, binaries distributed by HELIO RC, proprietary data messages, data messages that are in or communicated to or from any LP (e.g., to monitor, diagnose, or operate the Authorized Equipment). Data files shall include but not be limited to any data structure that adjusts flight controller parameters, such as noise and vibration filtering, motor speeds, voltage control, and other flight controller software or hardware parameters
2. License. Licensor hereby grants to you, and you accept, a nonexclusive license to use the LM in machine readable, object code form, only as authorized in this License Agreement and the applicable provisions of the Operators’ Manuals and Wiring Diagrams, which you agree to review carefully prior to using the LM. The LM may be used only on the LP in which it was initially installed and solely in conjunction with the Authorized Equipment in which it was initially installed; or, in the event of the inoperability of that LP, on a replacement LP provided to you by an authorized dealer pursuant to the Limited Warranty of Section 7 unless otherwise mandated under applicable law. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement, except that you may permanently transfer all of your rights under this License Agreement in connection with the sale of the LP or Authorized Equipment. If you sell or otherwise transfer the ownership of the LP or your Authorized Equipment, you agree that you will require such transferee to accept terms no less restrictive than those in this License Agreement.
3. Licensor’s Rights. You acknowledge and agree that the LM are proprietary to Licensor, or its affiliates or licensors, and are protected under copyright law, trade secret law, and laws governing confidential information. You shall maintain the confidentiality of the LM, any nonpublic information in the LM and the source code of the Software, regardless of whether the LM are labeled or marked with any proprietary legend or notice that indicates its confidential nature. You further acknowledge and agree that all right, title, and interest in and to the Software and the LM, including associated intellectual property rights, are and shall remain with Licensor, its affiliates, and their licensors. This License Agreement does not convey to you any title or interest in or to the LM, but only a limited right of use revocable in accordance with the terms of this License Agreement. Licensor and its Affiliates reserve all worldwide rights not expressly granted under this Agreement.
4. License Restrictions, Reverse Engineering. You may not reproduce, prepare derivative works based on, disclose, publish, distribute, rent, lease, modify, loan, display, or perform the LM or any part thereof. You may not reverse engineer, decompile, translate, adapt, or disassemble the LM, nor shall you attempt to create the source code from the object code for the Software. You may not transmit the LM over any network or via a hacking device, although you may use the LM to make transmissions of diagnostic data messages that are authorized by Licensor and you may receive Software updates authorized by Licensor. You also agree not to permit any third party acting under your control to do any of the foregoing activities related to reverse engineering of the Licensed Materials. You agree not to remove or obliterate any copyright, trademark or other proprietary rights notices from the LM, except as expressly permitted in writing by Licensor or its licensors or expressly permitted under applicable law notwithstanding these restrictions.
5. License Restrictions, Circumvention. Security measures (“SM”) means any of the following: technological measures under the Digital Millennium Copyright Act, copyright protection measures, application enabling mechanisms, passwords, key codes, encryption or other security devices. You agree that you will not: (a) attempt to defeat a SM or defeat a SM that protects the LM and that would constitute a violation under applicable law related to circumvention of technological measures that protect software, copyrighted works, or other intellectual property rights, and (b) traffic in, purchase, manufacture, design, import, offer, sell or distribute any circumvention or hacking device that is designed to circumvent or hack the LM or LP to the extent unlawful under applicable law.
6. Consideration, License Fees. The license fees or other good and valuable consideration paid by you are paid in consideration of the licenses granted under this License Agreement.
7. Limited Warranty. Licensor warrants, for your benefit alone and not for the benefit of any other party, that during the “Warranty Period” defined below, the Software will operate substantially in accordance with the applicable functional specifications (“Specifications”) set forth in the Operators’ Manuals. If, prior to expiration of the Warranty Period, the Software fails to perform substantially in accordance with the Specifications, you may return the LP to the place of purchase for repair or replacement of the nonperforming Software. As used in this License Agreement. The “Warranty Period” is the lesser of fourteen (14) days from the date you take delivery of the LP or any lesser warranty associated with your purchase of your Authorized Equipment on which the LP is installed or incorporated.
8. DISCLAIMER OF WARRANTIES. YOU HEREBY AGREE THAT THE LIMITED WARRANTY PROVIDED ABOVE (THE “LIMITED WARRANTY”) CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEM WHATSOEVER WITH THE LICENSED MATERIALS. EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, THE LICENSED MATERIALS ARE LICENSED “AS IS,” AND LICENSOR, ITS AFFILIATES AND THIRD PARTY SUPPLIERS EXPRESSLY DISCLAIM AND YOU EXPRESSLY WAIVE, RELEASE AND RENOUNCE ALL WARRANTIES ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE LICENSED MATERIALS, INCLUDING, BUT NOT LIMITED TO: ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE; ANY WARRANTY OF TITLE OR NON INFRINGEMENT; AND, ANY OTHER WARRANTY ARISING UNDER ANY THEORY OF LAW, INCLUDING TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING SUITABILITY FOR USE, SHALL BE DEEMED TO BE A WARRANTY BY LICENSOR OR ANY OF ITS AFFILIATES OR THIRD PARTY SUPPLIERS. LICENSOR DOES NOT WARRANT THAT THE LICENSED MATERIALS, LICENSED PRODUCT AND/OR SOFTWARE IS ERRORFREE OR WILL OPERATE WITHOUT INTERRUPTION.
9. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY, UNDER NO CIRCUMSTANCES SHALL LICENSOR, ITS AFFILIATES OR ITS THIRD PARTY SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ANY LOSS OR DAMAGE CAUSED BY THE LICENSED MATERIALS; ANY PARTIAL OR TOTAL FAILURE OF THE LICENSED MATERIALS; PERFORMANCE, NONPERFORMANCE OR DELAYS IN CONNECTION WITH ANY INSTALLATION, MAINTENANCE, WARRANTY OR REPAIRS OF THE LICENSED MATERIALS, BODILY INJURY, DAMAGE TO PROPERTY, DAMAGE TO LAND, DAMAGE TO MACHINES, LOST PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT OR SERVICES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF ANY ASPECT OF THE SOFTWARE, LICENSED MATERIALS OR LP, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT LICENSOR, ITS AFFILIATES OR ITS THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S CUMULATIVE LIABILITY TO YOU OR TO ANY OTHER PARTY FOR ANY LOSSES OR DAMAGES RESULTING FROM ANY CLAIMS, LAWSUITS, DEMANDS, OR ACTIONS ARISING FROM OR RELATING TO USE OF THE LICENSED MATERIALS EXCEED THE LESSER OF YOUR TOTAL PAYMENT OR FAIR MARKET VALUE FOR THE LICENSED PRODUCT OR ITS EQUIVALENT REPLACEMENT.
10. Software Maintenance. Licensor may, at its sole option, offer you maintenance of the Software, even though the Warranty Period has expired. Such maintenance may include providing modifications, corrections or enhancements (“Upgrades”) to the Software and/or the applicable Operators’ Manuals. Licensor reserves the right, in its sole discretion, to charge you for maintenance (except in cases where corrections are provided under the Limited Warranty). Your acceptance of this License Agreement constitutes your agreement that any Upgrades will be deemed included in the Software as defined in this License Agreement and that they shall be governed by the terms and conditions applicable to the LM under this License Agreement.
11. Termination of License. Licensor may terminate the license granted under this License Agreement upon written notice of termination provided to you if you violate any material term of this License Agreement pertaining to your use of the LM or Licensor’s rights, including, without limitation, the provisions of Sections 2 and 3 above.
12. Compliance with Law. You agree that you will use the LM in accordance with United States law and the laws of the country in which you are located, as applicable, including foreign trade control laws and regulations, copyright laws and other intellectual property laws. The LM may be subject to export and other foreign trade controls restricting re sales and/or transfers to other countries and parties. By accepting the terms of this License Agreement, you acknowledge that you understand that the LM may be so controlled, including, but not limited to, by the Export Administration Regulations and/or the foreign trade control regulations of the Treasury Department of the United States. The LM remains subject to applicable U.S. laws.
13. Indemnification. You agree to defend, indemnify and hold Licensor, its affiliates and third party supplier, and their officers, directors, employees, agents and representatives (each an “Indemnified Party”), harmless from and against all claims, demands proceedings, injuries, liabilities, losses, or costs and expenses (including reasonable legal fees) brought by any third party against any such persons arising from or in connection with your use of the LM, regardless of whether such losses are caused, wholly or partially, by any negligence, breach of contract or other fault of an Indemnified Party.
14. Trademark. Licensor does not grant you any right, license, or interest to any Licensor trademarks, symbols, marks or names (collectively “Marks’) or any trademarks that are confusingly similar to the Marks, and you agree that no such right, license, or interest shall be asserted by you with respect to such Marks.
15. Costs of Litigation. If any claim or action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney, arbitrators, and dispute resolution center administrative fees and expenses of litigation.
16. Severability and Waiver. Should any term or provision of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms and remaining provisions hereof. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights of subsequent actions in the event of future breaches.
17. Language Clause. Unless the laws of the location in which you reside require otherwise, the parties hereby acknowledge that they have required this License Agreement, and all other documents relating hereto, be drawn up in the English language only. There may be a translated version of this License Agreement. If there is an inconsistency or contradiction between the translated version and the English version of this License Agreement, the English version of this License Agreement shall control unless the laws of the location in which you reside require that a different version control. The parties acknowledge and agree that they have required that this agreement be prepared in the English language.
18. Assignment by Licensor. Licensor may assign this License Agreement without your prior consent to any company or entity affiliated with Licensor, or by an assignment associated with a corporate restructuring, merger or acquisition.
19. Governing Law and Forum. This License Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Illinois, U.S.A. The respective state and federal courts of Cook County, Illinois and the Northern District of Illinois have exclusive jurisdiction over all disputes relating to this License Agreement. This License Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
20. Arbitration. IF YOU RESIDE IN A JURISDICTION WHEREIN THE ENFORCEABILITY OF THE TERMS OF SECTION 19 IS DEPENDENT UPON THE PARTIES AGREEING TO SUBMIT TO ARBITRATION, THEN ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT SHALL BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE INTERNATIONAL ARBITRATION RULES OF THE INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION (“ICDR”) IN EFFECT AT THE TIME OF ITS INITIATION. THE ARBITRATION SHALL BE HELD BEFORE ONLY ONE ARBITRATOR APPOINTED BY THE ICDR. THE PLACE OF ARBITRATION SHALL BE CHICAGO, ILLINOIS, USA AND THE LANGUAGE OF THE ARBITRATION SHALL BE ENGLISH.
21. Representations of Licensee. BY ACCEPTING THIS AGREEMENT, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; (C) AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE LICENSED MATERIALS AND ON WHOSE BEHALF IT IS USED; AND, (D) AGREE TO PERFORM THE OBLIGATIONS OF THIS AGREEMENT.
22. Notices. All notices to Licensor shall be sent by certified or registered mail to HELIO RC, LLC, 1379 E CANYON CREEK DRIVE, GILBERT, AZ 85295, U.S.A. All notices to Licensor shall be effective upon receipt. All notices required to be given to you shall, in Licensor’s sole discretion, either be sent via certified or registered mail to the address given to Licensor, a HELIO RC dealer, or another distribution partner of Licensor in connection with your purchase of the LP and/or Authorized Equipment. Either method of notification used by Licensor shall be effective upon dispatch. You agree to notify Licensor of any change in your address in the manner set forth above.
23. Third Party Software Notifications and Licenses. The copyrights for certain portions of the Software may be owned or licensed by other third parties (“Third Party Software”) and used and distributed under license. The Third Party Notices includes the acknowledgements, notices and licenses for the Third Party Software. The Third Party Notices are included with the distribution of this License Agreement on a display, online, or elsewhere. If you are unable to locate these Third Party Notices, please write to us at the address below. The Third Party Software is licensed according to the applicable Third Party Software license notwithstanding anything to the contrary in this Agreement. If the Third Party Software contains copyrighted software that is licensed under the GPL/LGPL or other copyleft licenses, copies of those licenses are included in the Third Party Notices. You may obtain the complete corresponding source code for such Third Party Software from us for a period of three years after our last shipment of the Software by sending a request letter to:
1379 E CANYON CREEK DRIVE,
GILBERT, AZ 85295
Please include name of the product and the version number of the software in the request letter. This offer is valid to anyone in receipt of this information.