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RLM SOFTWARE, INC. FLIGHTVIEW™ ONDEMAND SOFTWARE LICENSE AND SERVICE AGREEMENT ("AGREEMENT")

(© 2006)

1. INTRODUCTION

THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS ON WHICH RLM SOFTWARE, INC. IS MAKING AVAILABLE TO THE LICENSEE (HEREINAFTER REFERRED TO AS THE "LICENSEE" OR IN THE SECOND PERSON) THE FLIGHTVIEW ONDEMAND SOFTWARE (THE "SOFTWARE") AND CERTAIN FLIGHT TRACKING DATA IN XML FORMAT (THE "FLIGHTVIEW® DATA"). THE FLIGHTVIEW DATA IS MADE AVAILABLE TO LICENSEES OF THE SOFTWARE OVER THE RLM WEB SITE. THE FLIGHTVIEW SOFTWARE IS MADE AVAILABLE OVER THE RLM WEB SITE EITHER DIRECTLY OR VIA 3RD PARTY VENDORS APPLICATION (APPLICATION) SELECTED AND APPROVED BY RLM.

BY ACCEPTING THIS AGREEMENT AND/OR DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND DO NOT DOWNLOAD OR INSTALL THE SOFTWARE.

2. LICENSE

  1. Term. The term of this license is from the date of account creation and terminates upon expiration of Signup Credits or elapse of Signup Days. After such date, your right to use the Software and access and use and FlightView Data automatically terminates.
  2. Scope. RLM Software, Inc. ("RLM") grants you a non-exclusive, non-transferable license: (i) to access the Software on a via a web browser or Application by a computer (the "Host Computer"); (ii) to signup for credits (Signup Credits) to be used during a specified number of days (Signup Days); and (iii) to use the Software to download and display the FlightView Data available from over the RLM web site (the "Web Site") on the Host Computer using and in the format provided for by the Software only; all for your personal, non-commercial use only. No license is granted hereunder for the retransmission of any FlightView Data.

3. DELIVERY OF FLIGHTVIEW DATA

The FlightView Data will be made available over the RLM Web Site and shall be delivered to the Host Computer for processing by the Software or Application. The delivery of the data requires the Host Computer to link to the Web Site. You are solely responsible for establishing and maintaining the connectivity necessary to link to the Web Site and the recommended browser specifications (Internet Explorer 5.0 or later) for the Host Computer. The speed with which you are able to download the FlightView Data will depend on the speed of your Internet connection. In no event is RLM responsible for any failure of the Host Computer to be able to link to the RLM web site or for any internet connectivity problems beyond its direct control or which would require more than reasonable commercial diligence to avoid.

4. RESTRICTIONS

You may not do or permit any other party to do any of the following (in each case references to the Software are also to refer to any portion thereof):

  1. Use the Software or FlightView Data other than as specifically permitted in this Agreement;
  2. Modify or create a derivative work of the Software or modify or create any derivative work the FlightView Data or display the FlightView Data other than as displayed by the Software in unmodified form;
  3. Provide services using the Software or FlightView Data to any third party on a commercial basis including, without limitation, operating the Software or Data as a service bureau or ASP or using the Software or FlightView Data to provide services or demonstrations to third parties in exchange for any consideration or as part of any marketing effort;
  4. Use the Software or FlightView Data for air traffic control purposes or in violation of FAA regulations;
  5. Sublicense, sell, rent, lease, donate or otherwise transfer the Software or FlightView Data;
  6. Permit simultaneous use of the Software or FlightView Data by more than one user over a computer network or otherwise, or use or provide access to the Software or FlightView Data over a computer network or in a networked environment;
  7. Reverse engineer, decompile, or disassemble the Software or otherwise derive the source code of the Software;
  8. Make copies of the Software or FlightView Data other than one copy of the Software for archival purposes, and you may not use the back-up copy other than as a replacement for the original copy. You must include on any back-up copy all copyright and other notices included on the Software;
  9. Use the FlightView Data in violation of the terms and conditions for indirect subscribers set forth in the Federal Aviation Administration's Memorandum of Agreement For Industry Access to Aircraft Situation Display and National Airspace System Status Information Data dated August 9th, 2002, which terms and conditions are incorporated herein by reference; or
  10. Export, re-export or use the Software or FlightView Data or any copy thereof in violation of the export control laws of the United States of America and other countries.

5. OWNERSHIP AND COPYRIGHT OF INTELLECTUAL PROPERTY

Title and copyright to the Software and FlightView Data (including, without limitation, any databases, libraries, images, "applets", photographs, animations, video, audio or music and text incorporated therein), and all trademarks appearing thereon or therewith, and all trade secrets, patents, copyrights, know how, methodologies, concepts, techniques, designs, inventions, procedures, methods of data capture, array or display, and/or works of authorship used therein, remains with RLM and/or its licensors. The Software is copyrighted and is protected by United States copyright laws and international treaty provisions. You may not remove the copyright and other proprietary rights notices from the Software. "FlightView" is a registered trademark of RLM Software, Inc. The names or other RLM products and any logos appearing on the Software or in the FlightView Data or referenced herein are trademarks or registered trademarks of RLM. You may not use any trademarks of RLM without permission. All rights not expressly granted are reserved to RLM.

6. LIMITED WARRANTY FOR SOFTWARE

  1. RLM warrants that the Software will perform substantially as described on the Web Site for the period of ninety (90) days from the date of signup (the "Limited Warranty").
  2. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.
  3. Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety (90) day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
  4. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by RLM, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet RLM's Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 8 below ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
  5. YOUR EXCLUSIVE REMEDY. RLM's and its suppliers' entire liability and your exclusive remedy shall be, at RLM's option from time to time exercised subject to applicable law, return of the price paid (if any) for the Software. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States or Canada, neither these remedies are available without proof of purchase from an authorized international source. To exercise your remedy, contact: RLM.

7. DISCLAIMER OF WARRANTIES

  1. NO ADDITIONAL WARRANTY ON SOFTWARE; NO WARRANTIES ON FLIGHTVIEW DATA. THE LIMITED WARRANTY THAT APPEARS ABOVE IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGING OR BY ANY MATERIAL ON THE WEB SITE WITH RESPECT TO THE SOFTWARE. AS INDICATED BELOW, THERE ARE NO WARRANTIES ON THE FLIGHTVIEW DATA.
  2. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RLM AND ITS LICENSORS PROVIDE THE SOFTWARE AND THE FLIGHTVIEW DATA "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE AND THE FLIGHTVIEW DATA. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE OR THE FLIGHTVIEW DATA. IN CERTAIN CASES, THE SOFTWARE AND THE FLIGHTVIEW DATA MAY CONTAIN INACCURACIES, TOPOGRAPHICAL ERRORS AND OUT-OF-DATE INFORMATION.

8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RLM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ITS LICENSORS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR FLIGHTVIEW DATA, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF RLM OR ANY SUPPLIER, AND EVEN IF RLM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. LIMITATION OF LIABILITY AND REMEDIES

NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF RLM AND ITS LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY RLM WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $10.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 6, 7, AND 8 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

10. INDEMNITY OF RLM

You agree to indemnify RLM and its affiliates against any loss, liability or expense (including reasonable legal fees) it incurs arising out of or in connection with any breach or violation of the terms of this Agreement by you or your use of the Software or the FlightView Data.

11. TERMINATION

This Agreement terminates upon expiration of Signup Credits or Signup Days. This Agreement and the license granted herein automatically terminates upon any violation of any of the provisions of this Agreement. Upon any termination of this Agreement, your right to use the Software and use or receive any FlightView Data shall terminate without reimbursement and you shall be obligated, within thirty (30) days of receiving a notice of termination of this license from RLM, destroy all copies of the Software in your possession. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 and 19 shall survive termination.

12. CONFIDENTIALITY

You agree to that the source code for the Software and algorithms, procedures, concepts, techniques, inventions, methodologies used by the Software, are or contain the confidential and proprietary information and trade secrets of RLM (the "Confidential Information") and that RLM is providing the Software in object code format only, to you in confidence. You agree (i) to preserve in strictest confidence all Confidential Information and (ii) not to disclose the Confidential Information to any third party. Confidential Information shall not include any information which: (a) you possess prior to the receipt hereof without obligation of confidentiality; (b) you rightfully receive from a third party without any obligation of confidentiality to such third party, and which such third party received without any obligation of confidentiality, direct or indirect, to RLM; or (c) is or becomes publicly available without breach of any obligation to RLM by you. You may disclose Confidential Information if such disclosure is required under the terms of any statute, regulation, order, subpoena or document discovery request, provided that prior written notice of such disclosure is furnished to RLM as soon as practicable in order to afford RLM an opportunity to seek a protective order or otherwise contest or restrict such required disclosure. The parties agree to cooperate fully to limit disclosure in the event of any apparent legal requirement that Confidential Information be disclosed.

13. ASSIGNMENT

Except as otherwise permitted by law, you may not transfer this License Agreement or the Software without the prior written permission of RLM. Any change in the Host Computer must be communicated to RLM before any FlightView Data can be downloaded by or to such alternative computer.

14. SUPPORT

RLM will provide technical support via email only and will respond during the next business day (Monday through Friday) during normal working hours (9:00 AM - 5:00 PM EST). RLM does not provide maintenance in connection with license or use of the Software.

15. US GOVERNMENT RESTRICTED RIGHTS

The Software is commercial software and is provided with RESTRICTED RIGHTS. The Software may only be sold to an agency or instrumentality of the United States Government under prime contracts that incorporate restrictions on government use, reproduction, or disclosure stated in either § 8 of GSA SOFTWARE LICENSE (SPECIAL ITEM NUMBERS 132-32, 132-33, or 132-34) or FAR 52.227-14 Alt. III, or, for sales to the Department of Defense, contracts that accept the standard commercial software license terms stated elsewhere in this license, per DFARS 227.7202-3(a); any other attempted sale is null and void. Use, reproduction, or disclosure of the Software by the government or its agents or contractors is subject to the restrictions set forth herein and/or therein, as applicable. Contractor and manufacturer are RLM, Inc., 214 Lincoln Street Suite 213, Boston, MA 02134-1346. Use of the Software by the Government constitutes acknowledgment of RLM's proprietary rights in them.

16. OTHER AGREEMENT

This Agreement constitutes the entire agreement between you and RLM and supercedes all representations, understandings and other agreements between the parties with respect to the subject matter described herein.

17. MISCELLANEOUS

Neither this Agreement nor any part or portion thereof may be assigned, sublicensed or otherwise transferred by you to any third party other than as explicitly permitted above. Failure of a party to enforce any provision of this Agreement does not constitute and should not be construed as a waiver of such provision or the right to enforce such provision. Subject to the immediately preceding paragraph, this Agreement represents the complete agreement concerning this license and may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

18. GOVERNING LAW

This Agreement is governed by the laws of the Commonwealth of Massachusetts, without giving effect to conflict of laws provisions thereof. Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a Massachusetts state court or federal district court for the District of Massachusetts, and each or RLM and you hereby consents to the personal jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

19. USE OF SOFTWARE NOT AUTHORIZED

Use of the Software and the FlightView Data is not permitted under this Agreement in any jurisdiction that does not give effect to all of the terms and conditions hereof including, without limitation, Section 18. Should you have any questions concerning this Agreement, for information about obtaining RLM's permission to use the Software or the FlightView Data on your Company's web site or in a networked environment, or if you wish to contact RLM for any reason, please use the following contact information:

RLM Software, Inc., 214 Lincoln Street Suite 213, Boston, MA 02134-1346

Copyright © 2006 RLM Software, Inc. All rights reserved.

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