Fairbanks Morse Defense

End User License Agreement (EULA)

This is a Fairbanks Morse, LLC. website and End User License Agreement ("Agreement") by and between Fairbanks Morse, LLC. and the subscriber of this Fairbanks Morse, LLC. Technical Publication data. Fairbanks Morse, LLC. ("FMD") , a Delaware Corporation located at 701 White Avenue, Beloit WI and the subscriber to FMD Technical Publications data (the "Licensee") hereby agree to the terms and conditions of this license. LICENSEE MUST READ THIS AGREEMENT CAREFULLY AND INDICATE ACCEPTANCE BY CLICKING THE "I AGREE" BUTTON AT THE END OF THE AGREEMENT BEFORE ACCESSING THE PUBLICATIONS DATA. BY CLICKING "I AGREE", LICENSEE AGREES TO BE BOUND BY THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT USE ANY DATA OR PUBLICATION OBTAINED BY FAIRBANKS MORSE DEFENSE AND LICENSEE MUST RETURN THIS MEDIA TO FAIRBANKS MORSE DEFENSE. By clicking the "I AGREE" button and accessing the Fairbanks Morse, LLC. data, Licensee is indicating that Licensee is 18 years old or older, and agrees to be bound by all of the terms in this Agreement. Licensee should print a record copy of this Agreement. 1. EXPORT CONTROLLED The FMD technical data, which follow, contain information whose export is restricted by the Export Administration Act of 1979, as amended, (Title 50, U.S.C., App. 2401, Et Seq.). Violations of these export laws are subject to severe criminal penalties. The FMD technical data, which follow, are subject to the provisions of the International Traffic in Arms Regulations (ITAR). These commodities are authorized by the U.S. Government for export only to the countries and customers identified on the FMD publications distribution list. They may not be transferred on a non-continuous voyage, or otherwise be disposed of in any other country, either in their original form or after being incorporated into other end items without prior written approval of the U.S. Department of State. The FMD data, which follow, is subject to the provisions of the Export Administration Regulations (EAR) under jurisdiction of the U.S. Department of Commerce and are export controlled under Export Control Classification Number (ECCN) 9A991. Diversion contrary to US law is prohibited. 2. LICENSE FMD hereby grants Licensee a nonexclusive, nontransferable license commencing on the Effective Date to use the proprietary processes, procedures, instructions, documentation, and other related materials packaged with this Agreement (collectively, "Licensed Materials"). Licensee may use the Licensed Materials only on the terms and conditions of this Agreement. THIS AGREEMENT DOES NOT CONVEY TO LICENSEE TITLE OR OWNERSHIP OF THE LICENSED MATERIALS, BUT ONLY A RIGHT OF LIMITED USE IN ACCORDANCE WITH THIS AGREEMENT. ALL TERMS AND CONDITIONS OF THIS AGREEMENT ARE MATERIAL TERMS OF THE LICENSE GRANTED BY THIS AGREEMENT. THE LICENSE GRANTED UNDER THIS AGREEMENT EXPRESSLY EXCLUDES IN ALL CASES ANY USE, ISSUE, COPYING, DISCLOSURE OR EXPLOITATION OF THE LICENSED MATERIALS FOR MANUFACTURE, DEPTH MAINTENANCE, OVERHAUL OR TENDER PURPOSES WITH THIRD PARTIES OR FOR USE WITH NON OEM HARDWARE, EXCEPT AS EXPRESSLY AUTHORIZED. In consideration of the use of the Licensed Materials, and as a condition of Licensee's right to use the Licensed Materials, Licensee agrees to pay to FMD the license fees to which the parties have agreed ("License Fees"). 3. NONDISCLOSURE "Confidential Information" means any and all information that is of a confidential, proprietary or trade secret nature that is furnished or disclosed to Licensee or FMD under this Agreement. The Licensed Materials are Confidential Information of FMD. Confidential Information includes technical and performance data as well as the specific business terms of this Agreement and any other information that is marked as "Confidential," "Proprietary," "Trade Secret," or in some other manner to indicate it is confidential, proprietary or trade secret nature. Confidential Information that is disclosed to Licensee will remain the property of FMD, and Licensee will not be deemed by virtue of this Agreement or any access to FMD’s Confidential Information to have acquired any right or interest in or to any such Confidential Information. Any Confidential Information that is disclosed to FMD may be disclosed by FMD to any of its directors, officers, employees, agents, advisors, temporarily contracted personnel, affiliates, and subsidiaries, excluding joint ventures. Licensee agrees: to hold FMD's Confidential Information in strict confidence; to limit disclosure of FMD's Confidential Information to Licensee's own employees or subcontractors having a need to know the Confidential Information for the purposes of this Agreement; not to disclose any of FMD's Confidential Information to any third party other than to subcontractors under a contract with Licensee and under a duty not to further disclose the Licensed Material and to destroy or return the Licensed Material upon completion of the contract; to use FMD's Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; and to notify FMD promptly of any unauthorized use or disclosure of FMD's Confidential Information and to cooperate with and assist FMD in every reasonable way to stop or minimize such unauthorized use or disclosure. Licensee agrees that if a court of competent jurisdiction determines that Licensee has breached, or attempted or threatened to breach, its confidentiality obligations to FMD or FMD's proprietary rights, FMD will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures will be in addition to, and not in lieu of, any other rights and remedies available to FMD. 4. PERMISSION TO COPY THE LICENSED MATERIALS; RESTRICTIONS ON USE Licensee may copy the Licensed Materials, or electronically provide access via a local area network, i) for Licensee's own use for back-up and archival purposes and ii) for use in accordance with this Agreement. This technical data and the information herein are the property of and proprietary to FMD, and shall not, without prior written permission of FMD be disclosed or duplicated in whole or in part. This legend shall be included on any reproduction of this data in whole or in part. Any copies that Licensee makes of the Licensed Materials or access provided to the Licensed Materials, in whole or in part, are FMD's property. Licensee agrees not to reverse engineer, extract or re-use any ideas, procedures nor parts descriptions from the Licensed Materials for any reason other than for the purpose specified in this Agreement. Licensee agrees that it is not permitted to use the Licensed Materials in any way in designing, making or marketing of any component parts for any FMD product. For the purpose of clarity, nothing in this Section 2 will be interpreted to deny Licensee any right it may have under applicable law to reverse engineer a product or component part without the use of the Licensed Materials. Licensee agrees to reproduce and include FMD's copyright, trademark, and other proprietary rights notices on any copies of the Licensed Materials, including partial copies and copied materials in derivative works. 5. NO WARRANTIES The Licensed Materials are provided "AS-IS" and without warranties of any kind, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, and any implied warranties arising from statute, course of dealing, course of performance or usage of trade. FMD will use commercially reasonable efforts to maintain the Licensed Materials as reasonably current, accurate and complete. HOWEVER, THERE IS NO WARRANTY THAT THE LICENSED MATERIALS ARE ERROR-FREE. FMD's sole obligation and Licensee's sole remedy under this Section 4 is that Licensor will use commercially reasonable efforts to correct promptly any errors in the Licensed Materials which are made known to FMD by written notice from Licensee describing such errors in sufficient detail. Notwithstanding the foregoing, Licensor reserves the right to satisfy its obligations in full by refunding a pro rata portion of the applicable amounts paid by Licensee for the particular Licensed Materials which are in error. 6. LIMITATION OF LIABILITY Licensee agrees that FMD will not be liable to the Licensee for any damages whether direct, indirect, special, incidental, punitive or consequential arising out of or related to this Agreement, including without limitation, Licensee's use or inability to use the Licensed Materials, even if FMD has been advised of possibility of such damages. FMD's liability arising out of or related to this Agreement and/or to the provision of the Licensed Materials to Licensee is limited to the amount of the License Fees. The parties agree that the foregoing limitations will not be deemed to limit any liability to an extent that would not be permitted under applicable law. 7. INDEMNIFICATION Licensee, at its expense, will indemnify, defend and hold harmless FMD and any of its officers, directors, employees, agents, consultants and other representatives (collectively, the "Indemnified Parties") from all liabilities, costs, losses, damages and expenses (including reasonable attorneys' and experts' fees and expenses as well as interparty damages caused by Licensee or third parties) and will reimburse such fees and expenses as they are incurred, including in connection with any claim or action threatened or brought against the Indemnified Parties arising out or relating to Licensee's violation of any part of Sections 1 or 2 of this Agreement. FMD will promptly notify Licensee of any such claim or action and will reasonably cooperate with Licensee in the defense of such claim or action, at Licensee's expense. 8. TERMINATION If FMD believes that Licensee has materially failed to comply with any of the terms and conditions of this Agreement, then FMD will have the right, without affecting any other rights and remedies FMD may have, to terminate this Agreement immediately upon written notice to Licensee. Either party may terminate this Agreement for any reason after thirty (30) days' written notice to the other party. If Licensee is the owner of an engine for which the Technical Publications data was provided, then this license will immediately terminate upon transfer of the ownership of that engine. In such case, Licensee may transfer the Licensed Materials to the new owner of the engine. Due to the high rate of technological change in FMD’s industry, the Licensed Materials will be considered outdated when a subsequent revision has been released. Accordingly, this license will automatically terminate at that time and further use of the Licensed Material after that date is strictly prohibited. Within thirty (30) days after the expiration or termination of this Agreement for any reason, Licensee must, at FMD's option, either deliver to FMD or destroy the original and all copies (including partial copies) of the Licensed Materials, and any other materials provided by FMD under this Agreement, including copied portions contained in derivative works, and certify in writing to FMD that Licensee has fully performed its obligations under this paragraph. Any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement, including but not limited to Section 5. 9. LAW AND DISPUTES This Agreement will be governed by the laws of the State of Indiana, without regard to any provision of Indiana law that would require or permit the application of the substantive law of any other jurisdiction. Both FMD and Licensee agree to comply fully with all relevant export laws and regulations of the United States to ensure that no information or technical data provided pursuant to this Agreement is exported or re-exported directly or indirectly in violation of law. THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, OR ANY DEALINGS BETWEEN THEM ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS. 10. GENERAL A. Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section 9.A; or (iii) when delivered if delivered personally or sent by express courier service. All notices to FMD must be sent to its address as set forth in this Agreement or at such other address as FMD may specify in a notice given in accordance with this Section. B. Licensee may not assign or otherwise transfer any right or obligation set forth in this Agreement without FMD's prior written consent. Any purported assignment in violation of the preceding sentence will be void and of no effect. This Agreement will be binding upon the parties' permitted assigns. C. This Agreement constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties. D. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties. E. No failure or delay by either party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If either party waives any right, power or remedy, such waiver will not waive any successive or other right, power or remedy the party may have under this Agreement. F. This Agreement does not include any professional services in connection with FMD's provision of the Licensed Materials. All consulting, support, training and other assistance will be provided under a separate agreement. 11. AGREEMENT By clicking "I Agree with EULA", Licensee agrees to be bound by this Agreement. If Licensee does not wish to abide by this Agreement, then close browser page to abort access to the Licensed Materials.