AVIDYNE WAIVER, RELEASE AND INDEMNIFICATION
This document impacts your legal rights.
YOUR USE OF THE AVIDYNE PRODUCT IS CONDITIONED ON ALL THE TERMS AND CONDITIONS PROVIDED WITH THE PRODUCT SALE, INCLUDING, BUT NOT LIMITED TO THE FOLLOWING:
(1). THE WARRANTIES PROVIDED BY AVIDYNE CORPORATION FOR ITS AVIATION PRODUCTS ARE EXCLUSIVE OF AND IN SUBSTITUTION FOR ANY OTHER REMEDY AVAILABLE UNDER THE LAW. I UNDERSTAND MY REMEDY ARISING OUT OF OR RELATED TO USE OF AVIDYNE AVIATION PRODUCTS FOR THE LIFE OF THE PROUCT IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCT TO BE DETERMINED IN AVIDYNE’S SOLE DISCRETION. I HEREBY AGREE TO WAIVE, RELEASE, DISCLAIM AND RENOUNCE ANY OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS AGAINST AVIDYNE CORPORATION AND ITS OFFICERS, DIRECTORS, SUCCESSORS, ASSIGNS, INSURANCE COMPANIES, AGENTS, EMPLOYEES AND AFFILIATES (THE RELEASED PARTIES),
(2). I HEREBY RELEASE AVIDYNE CORPORATION AND THE OTHER RELEASED PARTIES FROM ANY AND ALL LIABILITY, LOSS, INJURY, DAMAGE, COSTS, CLAIMS AND/OR CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO ALL CLAIMS FOR BODILY INJURIES AND PROPERTY DAMAGE ARISING OUT OF OR RELATED TO THE USE OF SAID AVIATION PRODUCTS AND THE USE OF THE AIRCRAFT IN WHICH THE PRODUCT IS INSTALLED, WHETHER IN STRICT LIABILITY OR IN TORT, REGARDLESS OF HOW SUCH INJURY, DAMAGE OR LOSS MAY ARISE AND REGARDLESS OF WHETHER THE INJURY, DAMAGE OR LOSS IS OCCASIONED IN WHOLE OR IN PART BY THE NEGLIGENCE, NEGLECT OR FAULT OF ANY ONE OR MORE OF THE RELEASED PARTIES. NOTWITHSTANDING THE ABOVE, THIS PROVISION (2) SHALL NOT APPLY IF THE NATIONAL TRANSPORTATION SAFETY BOARD DETERMINES THAT A DEFECT IN AVIDYNE’S AVIATION PRODUCT WAS THE PROBABLE CAUSE OF THE ACCIDENT OR INCIDENT. ALL OTHER PROVISIONS OF THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
(3). AVIDYNE CORPORATION AND THE RELEASED PARTIES WILL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF AVIDYNE), STRICT LIABILITY, OR OTHERWISE, FOR ANY INCIDENTAL, CONSEQUENTIAL, GENERAL OR SPECIAL DAMAGES.
(4). IF THE NATIONAL TRANSPORTATION SAFETY BOARD DETERMINES THAT THE PILOT (THE PERSON OPERATING THE AIRCRAFT EQUIPPED WITH AVIDYNE AVIATION PRODUCTS, HERINAFTER “PILOT”) WAS THE PROBABLE CAUSE OF AN ACCIDENT OR INCIDENT, AND PROVIDED THE ACCIDENT OR INCIDENT OCCURRED WHILE I HAD AN OWNERSHIP INTEREST IN THE ACCIDENT OR INCIDENT AIRCRAFT EQUIPPED WITH THE AVIDYNE AVIATION PRODUCTS, I WILL INDEMNIFY AND HOLD HARMLESS AVIDYNE CORPORATION AND THE RELEASED PARTIES FROM AND AGAINST ALL CLAIMS REFERRED TO IN THE PRECEDING PARAGRAPHS, AND PAY THE COSTS OF DEFENDING SUCH CLAIMS (INCLUDING ATTORNEY’S FEES), REGARDLESS OF WHETHER THE ALLEGED INJURY, DAMAGE OR LOSS IS OCCASIONED IN WHOLE OR IN PART BY THE NEGLIGENCE, NEGLECT OR FAULT OF ANY ONE OR MORE OF THE RELEASED PARTIES.
(5). THE LAW OF THE STATE OF DELAWARE SHALL GOVERN THE CONSTRUCTION AND ENFORCEMENT OF THIS AGREEMENT, AS WELL AS ALL ASPECTS OF THE PARTIES’ RELATIONSHIPS AND ANY DISPUTES THAT MAY ARISE BETWEEN THEM. ANY AND ALL DISPUTES OR CLAIMS THAT I OR MY HEIRS AND ASSIGNS MAY ASSERT AGAINST AVIDYNE CORPORATION SHALL BE SUBMITTED TO BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION WITHIN THE STATE OF DELAWARE.
(6). THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS CONTRACT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION HEREOF. IF ANY OF THE COVENANTS OR AGREEMENTS IN THIS CONTRACT ARE DETERMINED TO BE UNENFORCEABLE, THEN THE PARTIES AGREE THAT ALL OTHER TERMS ARE TO REMAIN IN FULL FORCE AND EFFECT.
(7). THIS AGREEMENT IDENTIFIED AS AVIDYNE WAIVER, RELEASE AND INDEMNIFICATION REV03-A SUPERSEDES AND REPLACES PRIOR VERSIONS OF THE AGREEMENT.
The Avidyne website and services (The Service) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Service also contains information, data, text, software, images, files and other content and materials that are owned by Avidyne or its affiliates or suppliers and that are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. The selection, arrangement and compilation of the entire contents of the Service is the exclusive property of Avidyne and is protected by United States and international copyright laws. All software made available through or used in connection with the Service is the property of Avidyne or its suppliers and is protected by United States and international copyright laws.
Unless otherwise specified, the Service is for your personal and non-commercial use and is not transferable to any other person or entity. Except as expressly authorized by Avidyne, you agree not to reproduce, duplicate, copy, modify, create derivative works from, frame, distribute, transmit, perform, publish, license, rent, lease, loan, sell, resell, transfer or otherwise exploit for any commercial purpose any portion of the Service, use of the Service or access to the Service, including without limitation any information, software, products or services obtained from the Service. You may view, print and download materials displayed on or made available through the Service subject to the following: (a) the materials may be used solely for your own, personal information and not for commercial use; (b) the materials may not be modified or altered in any way, including but not limited to the removal or modification of any copyright or other proprietary notices affixed thereto. You acknowledge that you do not acquire any ownership rights by printing or downloading copyrighted material, and that the materials may be subject to separate license agreements and/or additional posted limitations on usage, reproduction and/or dissemination, all of which you shall be responsible for complying with if you download such materials. Use of spiders, robots and similar data gathering and extraction tools is expressly prohibited. All rights not expressly granted herein are reserved.
Avidyne, Avidyne.com, the symbol within our logo, “Avidyne” and other Avidyne designs, logos and product and service names are trademarks of Avidyne The “look and feel” of the Service constitutes proprietary trade dress of Avidyne All rights reserved. You may not reproduce, copy, display, transmit, distribute, modify or otherwise use the Avidyne logos without the express prior written permission of Avidyne All other trademarks appearing on the Service are the property of their respective owners.
Avidyne is very respectful about the privacy concerns of the visitors to this site on the Internet. As a general policy, no personal information is automatically collected from visitors to this site. However, certain non-personal information of visitors is recorded by the standard operation of Avidyne internet servers. This information is primarily used to provide an enhanced online experience for the visitor. Information tracked includes the type of browser being used by the visitor (e.g., Netscape, Internet Explorer), the type of operating system (e.g., Macintosh, Windows) in use by the visitor and the domain name of the visitor’s Internet service provider (e.g., America Online, EarthLink). By having this information, Web pages optimized for a particular visitor’s computer is automatically available to that visitor. Other uses of this information include internal review of the number of visitors to the site but only in an aggregate and non-personally-identifiable form. Other personally identifiable data about visitors to this site are known to Avidyne only when voluntarily submitted. Personally identifiable information that is collected in connection with visitors voluntarily filling out forms is retained by Avidyne and the member to whom the visitor is referred, and is not sold or otherwise transferred outside the company. However, this data in an aggregate form may be provided to other parties for marketing, advertising or other uses. We may sometimes also use email addresses and other personally identifiable information to contact visitors who communicate with us. For example, we direct email to visitors who provide us with their email addresses for specific purposes such as being notified if they have won one of our contests.
The materials by the Avidyne and www.Avidyne.com are provided “as is” and without warranties of any kind either expressed or implied. To the fullest extent permissible pursuant to applicable law, Avidyne disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchant-ability. Avidyne does not warrant that the functions contained in the materials will be uninterrupted or error-free, that defects will be corrected, or that this site or the server that makes it available is free of viruses or other harmful components. Avidyne does not warrant or make any representations regarding the use or the results of the use of the materials in this site in terms of their correctness, accuracy, reliability, or otherwise. You (and not Avidyne) assume the entire cost of all necessary servicing, repair or correction. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. The material that you read on a Avidyne web site is provided solely for educational purposes. Avidyne is not responsible or liable to any person or entity whatsoever (including, without limitation, persons who may use or rely on such data/materials or to whom such data/materials may be furnished) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character whatsoever based upon or resulting from any information or opinions provided.
Any questions, notes, postings, ideas, suggestions, concepts or other material submitted will become the property of Avidyne and Avidyne shall be entitled to use the material for any type of use forever including in any media whether now known or hereafter devised. When you submit material to Avidyne, you agree that Avidyne has the right to publish the material for any type of use as outlined above including promotional and advertising purposes.
Avidyne is not responsible for any material posted by visitors to this site. You shall not submit any information which:
Libels, defames, invades privacy, or is obscene, pornographic, abusive, or threatening; Infringes any intellectual property or other right of any entity or person, including, but not limited to violating anyone’s copyrights or trademarks; violates any law; Advocates illegal activity; Advertises or otherwise solicits funds or is a solicitation for goods or services; (collectively “Non-Approved Material”).
You agree to indemnify Avidyne and its officers, directors, employees, agents, distributors and affiliates from and against any and all third party claims, demands, liabilities, costs, or expenses, including reasonable attorney’s fees, resulting from your breach of any of the foregoing agreements, representations, and warranties.
Note to copyright owners: Avidyne prohibits users from using any material that infringes on the intellectual property rights (e.g., copyright, trademark, trade dress, etc.) of others. If you know your intellectual property rights have been violated by one of our users, please review the Avidyne, LLC Copyright Infringement Policy and contact us immediately.
EMAIL AND POSTINGS RECEIVED
Do not post any threatening or libelous emails or material on this site that would be considered a violation of any law. Avidyne will fully cooperate with any law enforcement authorities or court order requesting or directing Avidyne to disclose the identity of anyone posting any such emails or materials. When Avidyne is accessed through AOL, all AOL guidelines regarding appropriate online behavior will be enforced.
Unless otherwise specified, the materials in a Avidyne website and Avidyne.com are presented solely for the purpose of education in the United States. This site is controlled and operated by Avidyne from its offices within the State of Florida, United States of America. Avidyne makes no representation that materials in this site are appropriate or available for use in other locations. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
This agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, as it is applied to agreements entered into and to be performed entirely within such State. Any action you, any third party or Avidyne bring to enforce this agreement or, in connection with, any matters related to this site shall be brought only in either the state or Federal Courts located in Florida and you expressly consent to the jurisdiction of said courts. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the matters contained herein and shall not be modified except in writing, signed by Avidyne.
This Agreement and the rights and obligations set forth herein may not be assigned, in whole or in part, by Customer without Avidyne prior written consent. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. This Agreement shall be governed by, and construed in accordance with the laws of the State of Minnesota, including, without limitation, those relating to conflict of laws. Any lawsuit or action brought by any of the parties hereto, shall be filed and adjudicated in Florida. This Agreement may be amended only in a writing that has been executed by duly authorized officers of the parties and shall not be amended or deemed amended by subsequent conduct of either party or any course of dealings between the parties. The parties agree that (i) there shall be no oral agreements between the parties, whether or not related to this Agreement or the subject matter hereof, and whether or not allegedly entered into prior, during or subsequent to the term hereof; and (ii) in order for any agreement to be effective between the parties, whether prior, during or subsequent to the term hereof, it shall be set forth in writing and executed by duly authorized representatives of the parties. If litigation occurs between the parties relating to this Agreement, and Avidyne is the prevailing party, it shall be entitled to its reasonable attorneys’ fees, expert witness fees and costs of suit. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of or acquiescence in or to such provision. All notices given hereunder shall be in writing and shall be delivered personally or sent via receipted private courier or by United States Postal Service certified or registered mail, postage prepaid and return receipt requested, to the address or addresses set forth in this Agreement, or to such other address as a party may notify the other party in writing. Any such notice shall be deemed to be properly given (i) if delivered personally, upon written acknowledgment of receipt after delivery to the address specified; or (ii) if sent by courier or posted, the earlier of the actual date of delivery or three (3) days from the date posted.
Avidyne ANTI-SPAM POLICY
Avidyne prohibits the use of the Service in any manner associated with the transmission, distribution or delivery of any unsolicited bulk or unsolicited commercial email (“Spam”).
You may not use the Service to send Spam. You also may not deliver Spam or cause Spam to be delivered to any of Avidyne Services or customers.
In addition, email sent, or caused to be sent, to or through the Service may not:
Use or contain invalid or forged headers;
Use or contain invalid or non-existent domain names;
Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
Use other means of deceptive addressing;
Use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party;
Contain false or misleading information in the subject line or otherwise contain false or misleading content;
Fail to comply with additional technical standards described below; or
Avidyne does not permit or authorize any attempt to use the Service in a manner that could damage, disable, overburden or impair any aspect of any of the Service, or that could interfere with any other party’s use and enjoyment of any Service.
If Avidyne believes that unauthorized or improper use is being made of any Service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from a particular internet domain, mail server or IP address. Avidyne may immediately terminate any account on any Service which it determines, in its sole discretion, is transmitting or is otherwise connected with any email that violates this policy.
Nothing in this policy is intended to grant any right to transmit or send email to, or through, the Service. Failure to enforce this policy in every instance does not amount to a waiver of Avidyne rights.
Unauthorized use of the Service in connection with the transmission of unsolicited email, including the transmission of email in violation of this policy, may result in civil, criminal, or administrative penalties against the sender and those assisting the sender. The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.