Nobeltec Inc. Software Application License Agreement
Please read this entire Software Application License Agreement (“Agreement”) carefully in its entirety before downloading, installing, accessing or using this software application. This Agreement is legally binding upon you (“You”) and Nobeltec, Inc. (“Nobeltec”). By downloading, installing, accessing, or using this software application, You are agreeing to each term of this Agreement including the restrictions on use, limited warranty and disclaimer, among other things. If the software application is to be used onboard a vessel and You are not the owner of the vessel and/or if You are accepting these terms on behalf of another person or legal entity, You represent that You have the authority to enter into this Agreement on their behalf. This software application is for private use only and not for commercial use. Without prejudice to any other limitation of liability specified hereinafter, Nobeltec shall in no event be liable for any loss or damage arising from the use of the software application for any business activity of any nature whatsoever. Nobeltec reserves the right to change or modify any of the terms and conditions of this Agreement at any time without notice to You. If You do not agree with these terms and conditions, do not purchase, install or use the software application. As a party to this Agreement, You agree to the following terms and conditions:
As used in this Agreement, the term "Application" means, collectively:
(i) the software application You are currently loading with which this Agreement is provided, including the object code form of the delivered digital images, the stock photographs, clip art, or other artistic works, and all data, protocols, links, articles, logos graphic or video messages and all information, text, application, music, sound, graphics or other materials made available through the Application, whether publicly posted or privately transmitted;
(ii) related explanatory written materials and any other possible documentation related thereto;
(iii) fonts; and
(iv) all upgrades, modified versions, updates, additions, and copies of the Application, if any, licensed to You by Nobeltec under this Agreement.
2. OWNERSHIP RIGHTS.
Nobeltec and/or its authorized third party licensors shall retain all rights, title and interest in the copyrights, patents, trade secrets, trademarks, service marks, design rights, proprietary information rights and other intellectual property rights in the Application as may exist anywhere in the world. This license shall not be considered a “sale” of the Application. Nobeltec’s Application is protected by copyright. To the fullest extent permitted by law, such protected works may not be copied, reproduced, translated, modified, adapted, reversed-engineered, decompiled, stored in a retrieval system, or retransmitted in whole or in part, in any form or by any means. You acknowledge that You do not acquire any ownership rights related to the Application and that You may not resell the Application or any part of it. This Agreement does not grant You any rights in connection with any trademarks or service marks of Nobeltec. All rights not expressly granted are reserved by Nobeltec and/or its authorized third party licensors.
3. GRANT OF LICENSE.
Nobeltec hereby grants to You a non-transferable, personal, non-exclusive right, so long as You comply with the terms and conditions of this Agreement, to use the Application and any upgrades thereto only for Your benefit. TZ iBoat may be installed on a maximum of three (3) of Your own personal iPad; provided, however it may only be used on one single iPad at a time. Charts that are purchased will be available on all iPads (if the same My TIMEZERO account is used to log in on all iPads). Note that chart purchase is a one-year subscription. After purchasing the chart, you can download details maps by zooming in (streaming the data) or by caching areas from the "Manage Chart" screen of TZ iBoat (for off line access). Charts will reside on your iPad even after expiration with the latest update done during subscription period. Nobeltec expressly reserves any and all rights that it may have in or to the Application which are not expressly licensed by Nobeltec to You under this Agreement. You acknowledge that Nobeltec has copyrights and other proprietary rights in and to the Application.
4. OTHER RESTRICTIONS.
You shall not (a) copy, duplicate, reproduce or publish the Application; (b) electronically transfer the Application to multiple computers over a network; (c) distribute copies of the Application to others by any means whatsoever; (d) modify, adapt, translate, reverse engineer, disassemble or decompile the Application in any way or create derivative works (i.e. works which include or are derived from any portion of the Application) based on the Application; (e) modify, adapt, translate, or create derivative works based on the printed, electronic or written materials; (f) assign, rent, exchange, lend, lease or sublease the Application; or (g) sell or transfer the Application. In no event shall You make any use of the Application for commercial purposes, it being understood that Your sole rights with respect to the Application shall be to use the Application for Your own benefit and not for the benefit of any third party, except as otherwise provided herein.
5. DURATION AND TERMINATION.
The license granted herein is effective unless rejected or until terminated. You may reject or terminate it at any time by removing the application and license from Your computer(s) and destroying the Application together with all copies, updates, upgrades and merged portions in any form, which are in Your possession or control. It will also terminate upon conditions set forth elsewhere in this Agreement or if You fail to comply with any term or condition of this Agreement. You agree upon termination, cancellation, suspension or expiration of this Agreement for any reason and by either party, to cease all use of the Application and to destroy the Application together with all copies, updates, upgrades, and merged portions in any form. You agree that any breach of this Agreement by You represents a material breach and entitles Nobeltec to immediately revoke the license under this Agreement and terminate the Agreement.
6. WARNING REGARDING NAVIGATIONAL USE.
The Application utilizes digital chart data and electronic information from the various marine electronic instrumentations on-board the vessel. You shall comply with and take into consideration the following Nobeltec warning.
Nautical navigation, including but not limited to navigation with 3-dimensional views of the ocean and land elevation topography, is an inherently dangerous undertaking and should only be engaged in by persons trained and experienced in nautical navigation. This application is intended for use only by persons trained in nautical navigation and only as a navigational aid, not as the sole method of navigation.
The navigation data are auxiliary means for navigation and can in no way replace the end user’s navigating experience and diligence.
To the extent You have acquired a “one off” license to use the navigation data, You acknowledge that such data are changing rapidly, and that nautical navigation undertaken with the aid of such data increases the inherent danger of such navigation. The data may not contain all nautical navigation data existing worldwide and You should make no assumption otherwise.
Unless otherwise clearly stated, the navigation data should only be used as an aid to navigation. The data is designed to facilitate the use of official government charts, not to replace them. Only official government charts and notices to mariners contain the current information needed for safe navigation.
The data is derived, in part, from material provided with the permission of various national hydrographic offices and other third parties (the “Licensors”). Nobeltec is an authorized user and licensee of selected data products under separate agreements with the Licensors. All rights are reserved by the respective Licensors and copyright restrictions apply. The information may not be modified or exploited by reverse engineering of its formats or its encryption or copied, reproduced, translated, or reduced to any electronic medium or machine readable form, in whole or part. No Licensor has verified the data and no Licensor accepts any liability for the accuracy of reproduction or for any modifications that may have been made to the information supplied. Furthermore, no Licensor warrants that the data meets any regulations as an appropriate product for navigation or that it contains the latest hydrographic information available.
Electronic charts are an aid to navigation designed to facilitate the use of official government charts, not replace them. New charts or notice to mariners corrections will render this product obsolete and inaccurate. Updates may be available from Nobeltec. Always remember that these electronic charts are inadequate as a primary means of navigation, and should be used only as supplements to official government charts and traditional navigation methods, unless otherwise specified by national maritime authorities. Only official government charts and notices to mariners contain all information needed for the safety of navigation and, as always, the captain is responsible for their proper use.
7. WARNING REGARDING WEATHER INFORMATION.
The Nobeltec Weather Service is subject to service interruptions and may contain errors or inaccuracies, and, consequently, should not be relied upon exclusively. The service is provided "AS IS". You are urged to check alternate weather information sources prior to making safety related decisions. You acknowledge and agree that You shall be solely responsible for use of the information and all decisions taken in respect thereto. By using Nobeltec Weather Service, You release and waive any claim against Nobeltec Inc. and Signet S.A.S. with regards to Nobeltec Weather Service.
8. WARNING REGARDING MARINE ZONE AND PROTECTED AREA.
The Application may utilize digital chart data containing Marine Zone or Protected Area (“MLPA”). The purpose of the MLPA feature is to help interpret forbidden or protected areas. The zones and designated area boundaries are indicative only. Whilst every care has been taken to illustrate zone and designated area boundaries as accurately as possible, users must refer to the local authorities for precise zone and boundary descriptions. Whilst every care is taken to ensure the accuracy of this product, Nobeltec makes no representations or warranties about its accuracy, reliability, completeness or suitability for any particular purpose. By using the MLPA feature, You release and waive any claim against Nobeltec Inc. and Signet S.A.S.
9. WARRANTY AND DISCLAIMER.
To the maximum extent permitted by applicable law, the Application is delivered “AS IS,” and is not guaranteed to be free from errors or defects. Nobeltec does not warrant that the Application is error free, that it will perform without interruption or that it is compatible with products manufactured by any person or entity other than Nobeltec. The Application utilizes digital chart data and electronic information from the various marine electronic instrumentation on-board the vessel, which may contain errors. Nobeltec does not warrant the accuracy of such information, and You are advised that errors in such information may cause the Application to give inaccurate readings. You assume all risk as to their performance. To the maximum extent permitted by applicable law, Nobeltec makes no express or implied warranty, and disclaims any liability for the application, including but not limited to, any express or implied warranty of merchantability or fitness for a particular purpose. Some countries/states/jurisdictions do not allow limitations on the length of implied warranties, so the above exclusion may not apply to You. The limited warranties and other obligations and liabilities of Nobeltec, and Your remedies set forth in this Agreement, are exclusive and in substitution for any other rights, claims and remedies You would otherwise have against Nobeltec with respect to the application provided hereunder.
10. LIMITATION OF LIABILITY.
To the maximum extent permitted by applicable law, in no event will Nobeltec or its third party licensors be liable to You or to any third party for direct, special, incidental, indirect, consequential, punitive, exemplary or other damages of any nature whatsoever (including but not limited to loss of use, revenue, profit, data, property damage or injury) whether such liability is asserted on the basis of contract, warranty, contribution, strict liability, tort or other theory arising out of this Agreement or the use of or inability to use the application or any other legal theories, even if Nobeltec has been advised of the possibility of such damages. Because some countries/states/jurisdictions do not allow the exclusion of liability but may allow liability to be limited, Nobeltec’s entire liability under any provision of this Agreement shall in such case be limited to the amount actually paid by You for the application license. If an arbitration panel or 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 Nobeltec’s liability set forth in this Section shall apply to the fullest extent permitted by law. If Nobeltec cannot exclude or limit a warranty or liability implied by law, this Agreement shall be read and construed subject to such provisions of law.
You will indemnify and hold harmless Nobeltec and its third party licensors from and against all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys’ fees), incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, including but not limited to Your employees, but not employees of Nobeltec, or for loss of or damage to any property, including any vessel or cargo, arising out of or in any way relating to (a) Your breach of any of the terms and conditions of this Agreement and (b) Your use of the Application provided hereunder, whether or not arising in tort or occasioned by the negligence of Nobeltec. Your indemnification obligations under this Section 11 will survive the termination of this Agreement.
12. EXPORT COMPLIANCE.
You shall be responsible for Your compliance with any applicable export control restrictions, 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 Application covered under this Agreement to any country, or national thereof, prohibited from obtaining such Application, either directly or indirectly. You shall, at Your sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to conduct Your respective activities hereunder.
13. COLLECTION OF INFORMATION.
Nobeltec may collect information relating to how often You use the Application or the frequency with which certain features of the Application are used. This information, if collected, will be collected anonymously, in a way that does not personally identify You. Nobeltec may use this information to detect broad user trends and to otherwise enhance our applications.
Use of Location-based Services
Nobeltec may provide certain features or services (e.g., Friends, Weather) that rely upon GPS information (when available) (the "Services"). To provide the Services when available, Nobeltec must collect, use, transmit, process and maintain Your location data, including but not limited to the geographic location of Your device and information related to Your MyTIMEZERO account (“Account”) and any devices registered thereunder, including but not limited to Your Serial Number, device ID, device name, and device type.
You may withdraw consent to Nobeltec's collection, use, transmission, processing and maintenance of location and Account data at any time by not using the location-based features and turning off the services from the Application. Any location data provided by the Services is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. Nobeltec shall use reasonable skill and due care in providing the Services, but Nobeltec does not guaranty the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by the Services. The Services are not intended or suitable for use as an emergency locator system.
The Services may create automatic backups of Your navigation data (route, waypoints,etc.), when the Application is launched and connected to the Internet. The Application will store Your last backups on Your MyTIMEZERO dedicated private cloud storage account; however, if a device has not backed up to MyTIMEZERO for a period of one hundred and eighty (180) days, Nobeltec reserves the right to delete the backups associated with that device. Nobeltec shall use reasonable skill and due care in providing the Services, but, to the greatest extent permissible by applicable law, Nobeltec does not guarantee or warrant that any content You may store or access through the Services will not be subject to inadvertent damage, corruption, loss, or removal in accordance with the terms of this Agreement, and Nobeltec shall not be responsible should such damage, corruption, loss, or removal occur. It is Your responsibility to maintain appropriate alternate backup of Your information and data.
Nobeltec may assign and transfer all its rights and obligations under the Agreement to any third party.
15. GOVERNING LAW AND MANDATORY ARBITRATION.
This Agreement will be governed by the laws of the State of Oregon, without giving effect to its conflicts of rules provisions. Any dispute relating to this Agreement that cannot be resolved by the parties must be resolved exclusively as provided in this Section. The parties will first endeavor to settle any dispute in an amicable manner before resorting to arbitration. Any unresolved dispute will be settled by arbitration administered by the "Arbitration Service of Portland, Inc." in accordance with its Commercial Arbitration Rules. Arbitration will be conducted in Portland, Oregon. One arbitrator will hear the dispute. The arbitrator must have a minimum of five years' experience as a state or federal judge, ten years as a lawyer or an accountant, or any alternate qualifications that the Parties agree upon. Nobeltec will advance to You Your portion of the arbitrator's fee and the administrative costs of the arbitration. However, if the arbitrator finds the claim to be frivolous, You will reimburse Nobeltec for your portion of the arbitrator's fee and administrative costs. Neither party may institute any court proceedings concerning any dispute. The dispute resolution procedure of this Section 15 is the sole remedy, unless otherwise provided elsewhere in this Agreement, for resolving disputes. Notwithstanding the foregoing, the parties may initiate court proceedings to enforce any arbitration award between the parties or for claims for equitable relief in the state and federal courts located in Portland, Oregon, and each party irrevocably consents to the jurisdiction of the state and federal courts located in Portland, Oregon and waives any objection that that venue is an inconvenient forum.
16. ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof. No waiver or modification of any of the terms hereof by You shall be valid unless agreed to by Nobeltec in writing and signed by Nobeltec and You. No waiver of any breach shall be deemed a waiver of any subsequent breach. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall not be affected.
Nobeltec reserves the right to change or modify any of the terms and conditions of this Agreement at any time without notice to You. Any changes or modifications to the terms and conditions will be effective on the date the change or modification is made, and will be provided to You with the next Application update for Your acceptance prior to downloading, installing, accessing or using the updated Application.
Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of that party’s rights under this Agreement
If You have any questions concerning this Agreement, including warranty service, You should contact: Nobeltec Inc., 15242 NW Greenbrier Pkwy, Beaverton, OR 97006 (USA).
You hereby acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between You and Nobeltec, which supersedes any proposal or prior agreement, oral or written and any other communications between You and Nobeltec relating to the subject matter of this Agreement.
Nobeltec Inc., A Signet S.A.S. Company
Copyright ©2018, Nobeltec Inc.
TIMEZERO is Trademark of Signet S.A.S.
These Trademarks may not be used without the express permission of their respective owner.