USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT
CAREFULLY. YOU ARE AGREEING TO BE BOUND
BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND
CONDITIONS OF THIS END USER LICENSE AGREEMENT, PLEASE DISCONTINUE USAGE. IF YOU DO AGREE TO THE TERMS AND CONDITIONS
OF THIS END USER LICENSE AGREEMENT ON BEHALF OF YOURSELF AND/OR THE ENTITY YOU
REPRESENT, YOU MAY CONTINUE USAGE.
This END USER LICENSE AGREEMENT ("EULA") is by and between you (the "Licensee") and Lockheed Martin Corporation acting through its Mission Systems and Training business, having offices at 100 Global Innovation Circle, Orlando, Florida ("Licensor"), and is effective as of the date of Licensee's acceptance thereof.
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, nonsublicensable, nonexclusive license during the Term of this EULA to use the Software, but only on no more than one computer at any one time, only by no more than one user at any one time, and only for purposes other than personal/consumer entertainment.
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 and
acceptance of this EULA by Licensee, Licensor shall issue to Licensee a
software key to allow Licensee to activate the Software which is available for
downloading from the Prepar3D Website.
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 © 2010-2014, Lockheed
License terms apply.
All Rights Reserved.
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
4. License Restrictions. LICENSEE SHALL NOT SELL, SUBLICENSE, SUBCONTRACT,
RENT, LEASE, LEND, ASSIGN, DELEGATE OR 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. Additionally, Licensee shall not do or allow
to be done, either directly or indirectly, any the following:
Reverse engineer, decompile, disassemble or otherwise reduce the
Software to a human-readable form.
Modify. Modify, adapt or
translate the Software.
Publish or otherwise disclose the Software for others to copy.
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.
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
warrants that, for a period of sixty (60) days after the date of delivery of the
Software and Documentation ("Warranty Period"), 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
OTHER THAN AS PROVIDED
IN THE IMMEDIATELY PRECEDING PARAGRAPH, THE SOFTWARE AND DOCUMENTATION IS
PROVIDED "AS-IS" WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE SOFTWARE AND DOCUMENTATION IS PROVIDED
WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE,
ACCURACY, AND EFFORT IS WITH THE LICENSEE.
LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET USE
REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR-FREE. 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 AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DISCLAIMS ANY
AND ALL WARRANTIES AGAINST INTERFERENCE WITH LICENSEE'S ENJOYMENT OF THE
SOFTWARE AND DOCUMENTATION, AND AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS,
INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY RIGHTS. LICENSOR DISCLAIMS ANY AND ALL
REPRESENTATIONS RELATING TO THIRD PARTY OPEN SOURCE SOFTWARE WHICH IS EMBEDDED
IN THE SOFTWARE.
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.
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: (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. In such case, 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
9.2 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 Software and Documentation
is a work with all rights reserved under the copyright laws of the United
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. Disputes with the U.S. federal government
shall be subject to resolution pursuant to the Contract Disputes Act of 1978,
as amended. All other provisions of this
EULA remain in effect as written.
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
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.
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.
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.
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. This EULA may be amended only by a written
instrument executed by both Licensor and Licensee.
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
Applicable Law and Jurisdiction. THIS EULA 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 LICENSE, 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
Limitation on Actions.
No action seeking damages or other compensation, regardless of the form
of such action or the form or extent of such damages or compensation, 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:
"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.
"Prepar3D Website" means the website at http://www.prepar3d.com/
or at any successor uniform resource locator designated by Licensor.
means all or any part of the Lockheed Martin computer program known as Prepar3D®, as more particularly described
at the Prepar3D Website,
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.
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 upon termination of this EULA as
provided in Article 10.
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.
Period" has the meaning provided in Section 6.
15. Developer Network
Agreement. If purchasing or using a Prepar3D® Developer Network subscription,
the Prepar3D® DEVELOPER NETWORK PROGRAM AGREEMENT must be agreed to before
continuing. The Prepar3D® DEVELOPER NETWORK PROGRAM AGREEMENT can be found in
PDF format at: http://www.prepar3d.com/Prepar3D_DNP_Agreement.pdf
BY PURCHASING OR USING THIS
SOFTWARE YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND THE
EULA AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.