SOFTWARE END USER LICENSE AGREEMENT
This SOFTWARE END USER LICENSE AGREEMENT (the "EULA") is by and between you (the "Licensee") and Lockheed Martin Corporation, acting through its Global Training and Logistics business, having offices at 100 Global Innovation Circle, Orlando, Florida 32825 (the "Licensor"), and is effective as of the date of Licensee's electronic agreement to be bound by the terms and conditions of this EULA.
In consideration of good, valuable and mutual consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree as follows (see Section 14 for defined terms):
1. License Grant. Subject to the terms and conditions of this EULA, Licensor hereby grants Licensee a fully paid-up, nontransferable, nonexclusive license during the Term of this EULA to use the Software: (1) on a single computer, (2) by no more than one user at any one time, (3) in connection with Academic Education, (4) by students, instructors and staff associated with Licensee's Academic Education, and (5) in the Territory.
2. Consideration. Licensee shall pay to Licensor or its reseller the license fee as set forth in the purchase agreement for the Software.
3. Activation, Back-ups and Returns. Upon receipt of the consideration, Licensor shall issue to Licensee a software key to allow Licensee to activate the Software which is available for downloading from the Prepar3D Website.
3.1 One Back-up Copy. Licensee may make one copy of the Software for backup purposes only, provided that such copy shall include the following marking and copyright notice:
Copyright © 2010, Lockheed Martin Corporation (All Rights Reserved)
3.2 Returns. License may return the Software for whatever reason, or no reason, at any time within 60 days of the date of this EULA, in accordance with Licensor's return policy as provided at the Prepar3D Website. Upon such return, Licensee shall return or destroy all copies of the Software, and all tangible embodiments thereof.
4. License Restrictions. Licensee shall not do or allow to be done, either directly or indirectly, any the following:
4.1 Reverse Engineer. Reverse engineer, decompile, disassemble or otherwise reduce the Software to a human-readable form (e.g., source code).
4.2 Modify. Modify, adapt or translate the Software, including without limitation any watermarks embedded in the Software or on the Documentation identifying the Software and Documentation as licensed for academic use only.
4.3 Publish. Publish or otherwise disclose the Software for others to copy.
4.4 Transfer. Sell, assign, sublicense, rent, lease, lend or otherwise transfer, either in whole or in part, the Software, this EULA, any software key issued by Licensor to Licensee, or any right or obligation of Licensee under this EULA.
4.5 Transmit or Avoid. Electronically transmit the Software from one computer to another or over a network, or use the Software in connection with any hardware or software that reduces the number of computers or users that directly access or use the Software, in any manner that would avoid any limitation or restriction in this EULA.
4.6 Non-Academic Use. Use the Software outside the scope of the license grant as provided in Section 1.
5. Ownership and Rights. This EULA does not constitute, and shall not be deemed to constitute, a transfer, assignment or any other form of alienation by Licensor of any of Licensor's rights, title, and interests, either in whole or in part, in the Software, including without limitation ownership and title. Licensor retains all rights not specifically granted to Licensee under this EULA.
6. Limited Warranty
Licensor warrants that, for a period of 60 days after the date of delivery of the Software and Documentation, the Software as delivered and when installed on hardware meeting Licensor's specifications, shall perform substantially in accordance with the functions described in the Documentation and the media on which the Software is supplied by Licensor shall be free from defects in materials and workmanship. This warranty does not cover (1) insignificant defects that do not prevent use of the Software, (2) Software failures due to inherent deficiencies in operating systems, third party software or hardware, and (3) damage resulting from accident, abuse or misapplication.
OTHER THAN AS PROVIDED IN THE IMMEDIATELY PRECEEDING PARAGRAPH, THE SOFTWARE AND DOCUMENTATION IS PROVIDED "AS-IS" WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER, AND LICENSOR DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET USE REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR-FREE.
LICENSOR DISCLAIMS ANY AND ALL REPRESENTATIONS RELATING TO THIRD PARTY OPEN SOURCE SOFTWARE WHICH IS EMBEDDED IN THE SOFTWARE.
7.1 Exclusive Remedy. Licensee's exclusive remedy and licensor's entire liability for breach of this EULA shall be limited, at licensor's sole and exclusive discretion, to: (i) replacement of any defective Software or Documentation; or (ii) refund of the consideration paid to Licensor as provided in this EULA in accordance with Licensor's refund policy as provided at the Prepar3D Website.
7.2 Limitations and Exclusions. Licensor's liability for any and all claims, costs, damages, losses, liability or expenses from any cause whatsoever shall be limited to the consideration received by Licensor from Licensee as provided in this EULA. This limitation shall apply regardless of the claim and regardless of the form of action. In no event shall Licensor be liable for any damages caused by Licensee's failure to perform under this License. Licensor shall not be liable for any indirect, special, incidental, consequential or punitive damages, including without limitation loss of revenue or profits, loss of data, loss of utilization, business interruption, loss of business or opportunities, regardless of whether Licensor knows of or has been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose. Licensor shall not be liable for any damages claimed by Licensee based on any third party claim.
8. Licensee Responsibility and Indemnity.
8.1 Responsibility. Licensee accepts the sole and exclusive responsibility for: (1) selection, installation and use of the Software; (2) the results obtained from such use; and (3) the selection and use of, and the results obtained from, any other computer software, computers, other equipment or services used with the Software. Licensee shall pay directly or reimburse Licensor for all taxes, assessments, permits and fees which are, or may be in Licensor's reasonable opinion, levied upon the Licensee's execution or acceptance of this EULA or use of the Software, exclusive of any income taxes owed by Licensor on its net income.
8.2 Indemnification. Licensee expressly agrees to indemnify and hold licensor and each of its directors, officers, employees and agents harmless from and against any and all claims or remedies, suits, actions, liabilities and damages, whether in tort (and whether or not arising from the negligence of licensor), in contract or otherwise, including costs and expenses and attorney's fees incident thereto, which may be suffered by, accrued against, charged to or recoverable from licensor or any of its directors, officers, employees and agents by reason of Licensee's use of the Software or Documentation, including without limitation; (1) licensor's enforcement of licensor's rights under this EULA; (2) injury to or death of any person or loss or damage to property (tangible or intangible) arising from (but not limited to) use of the Software or Documentation, or any products or services derived therefrom.
9. Government Use.
9.1 This Article 9 applies whenever the Licensee is the U.S. federal government, or any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the U.S. federal government. By accepting delivery of the Software, the Licensee agrees that the Software and Documentation is "commercial" computer software and documentation within the meaning of the applicable acquisition regulations (e.g., FAR 2.101 or DFARS 227.7202-3). The terms and conditions of this Article shall pertain to the Licensee's use and disclosure of the Software and Documentation, and shall supersede any conflicting contractual terms or conditions.
9.2 The Software and Documentation is a work with all rights reserved under the copyright laws of the United States.
9.3 Sections 8.2, 13.5 and 13.6 of this EULA shall not apply to the U.S. federal government but shall continue to apply to prime contractors and subcontractors of the U.S. federal government.
9.4 Disputes with the U.S. federal government shall be subject to resolution pursuant to the Contract Disputes Act of 1978, as amended.
9.5 All other provisions of this EULA remain in effect.
10.1 Breach. Either party may terminate this EULA for failure of the other to comply with any of the terms and conditions of this EULA.
10.2 Return of Copies. Upon the termination of this EULA, Licensee shall return to Licensor or destroy all copies of the Software, and all tangible embodiments thereof.
10.3 Termination of Licenses. Termination of this EULA shall serve to terminate all licenses granted by Licensor under this EULA.
11. No Maintenance. Licensor is not responsible for and shall not owe any obligation to Licensee to provide any additional software, or any translations, maintenance, upgrades, supplements, improvements or any "add-ons" to the Software or Documentation.
12. Compliance. Licensee agrees to comply with all applicable federal, state and municipal statutes, ordinances, rules and regulations, including, without limitation, the rules and regulations under the U.S. Export Administration Act and the U.S. Foreign Corrupt Practices Act, as the same may be amended from time to time.
13.1 Waiver. Any waiver of any breach of this EULA shall not be deemed to constitute a waiver of any subsequent breach of the same or any other provision of this EULA.
13.2 Severability. If any provision of this EULA is declared or found to be illegal, unenforceable or void, then both Licensor and Licensee shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void. In any such event, it is the intent and agreement of Licensor and Licensee that this EULA shall be deemed amended by modifying such provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this EULA shall not be affected by the declaration or finding and is capable of substantial performance, then each provision not so affected shall be enforced to the extent permitted by law.
13.3 Entire Agreement. This EULA, constitutes the entire agreement of Licensor and Licensee with respect to the subject matter of this EULA, superseding in all respects any and all prior proposals, negotiations, understandings, writings, communications and agreements, whether oral or written, between Licensor and Licensee. If there is a conflict between this EULA and any exhibit or appendix attached hereto, such exhibit or appendix shall prevail.
13.4 Interpretation. Headings in this EULA are for convenience only and shall not be deemed to be legally binding text. Singular and plural terms shall be deemed interchangeable, unless the context otherwise requires.
13.5 Applicable Law and Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT MAY DICTATE A CONTRARY RESULT. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AND ANY ADAPTATIONS THEREOF ADOPTED BY ANY JURISDICTION, SHALL NOT APPLY. WITH RESPECT TO ACTIONS ARISING UNDER THIS AGREEMENT, EACH OF LICENSOR AND LICENSEE HEREBY: (1) SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SEATED IN ORLANDO, FLORIDA AND ENCOMPASSING SUCH CITY IN ITS TERRITORIAL JURISDICTION; AND (2) WAIVE ANY CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM.
13.6 Limitation on Actions. No action, regardless of form, arising out of this EULA may be brought more than two (2) years after such cause of action has arisen.
14. Definitions. For purposes of this EULA:
14.1 "Academic Education" means education programs for elementary through undergraduate students in fundamental academic disciplines such as science, technology, engineering and math, including history and social sciences related thereto, but NOT in connection with professional training or certification of any kind, including, but not limited to, military training, emergency responder training, commercial flight training, private pilot training, air traffic control training, airport ground control/logistics training, driver training or nautical training.
14.2 "Documentation" means all documents, made available by Licensor to Licensee pertaining to the Software, including all amendments or updates thereto made or provided by or on behalf of Licensor.
14.3 "Prepar3D Website" means the website at http://www.prepar3d.com/ or at any successor uniform resource locator designated by Licensor.
14.4 "Software" means Licensor's computer program client application known as Prepar3D®, as more particularly described at the Prepar3D Website on the date of this Agreement, including, without limitation: (1) the operating executable software; (2) any related instructions or statements in machine-readable form; (3) any database in machine-readable form; and (4) any and all copies of the foregoing.
14.5 "Term" means the period of time commencing on the date of Licensee's electronic agreement to be bound by the terms and conditions of this EULA, and ending on the date of termination, if any, as provided in Section 10.1.
14.6 "Territory" means the State(s), Territory(ies), or governmental subdivision(s) thereof in which and by which Licensee is licensed, chartered or otherwise accredited to provide Academic Education.
14.7 "Use," whether in initial capitalized form or not and including any form of such word as a noun or a verb, as relates to the Software, means: (1) copying of same into a computer for processing; (2) storing of same in a computer; (3) transmission of same through a computer; (4) display of same on a computer; and/or (5) processing of same by a computer.
BY SELECTING THE "I AGREE" OPTION YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.