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.
consideration of good, valuable and mutual consideration, the receipt and
sufficiency of which are hereby acknowledged, Licensor and Licensee agree as
follows (see Article 14 for defined terms):
1. Consideration. Licensee shall pay
to Licensor the license fee as set forth in the purchase agreement for the
2. License Grant. Subject to the terms and conditions of this EULA,
including, without limitation, payment as provided in Article 1, Licensor hereby
grants to Licensee a fully paid-up, nontransferable, nonsublicensable,
nonexclusive license to use the executable computer code and other intellectual
property included in the Software and all related Documentation solely during
the Term of this EULA, and only for purposes other than personal/consumer
3. Restrictions. Except to the
extent otherwise required by applicable law or except to the extent Licensor is
legally required to permit the specific activity in this Article 3 pursuant to
any applicable Open Source Software license, Licensee shall NOT attempt, do or
allow to be attempted or done, either directly or indirectly, any the
SUBLICENSE, SUBCONTRACT, RENT, LEASE, LEND, ASSIGN, DELEGATE OR TRANSFER,
EITHER IN WHOLE OR IN PART, THE SOFTWARE, ANY SOFTWARE KEYS ISSUED BY LICENSOR
TO LICENSEE, THIS EULA, OR ANY RIGHT OR OBLIGATION OF LICENSEE UNDER THIS EULA;
Reverse engineer, decompile, disassemble, re-host or attempt to derive, obtain
or modify the source code of the Software or reduce the Software to a
Modify. Modify, adapt or
translate the Software;
Publish. Publish or
otherwise disclose the Software for others to copy;
Electronically transmit the Software from one computer to another or over a
network in any way which would eliminate or have the effect of either increasing
the rights or reducing the restrictions under this EULA; or
Markings. Alter, remove or
obscure any marking or notice, if any, of Licensor's intellectual property
rights included in or on the Software or Documentation.
4.1 Back-up Copies. Licensee may
make as many copies of the Software as Licensee considers necessary for backup
purposes, provided that each such copy shall include the following marking and
Copyright © 2010-2014,
Lockheed Martin Corporation.
License terms apply.
All Rights Reserved.
4.2 Activation. Upon receipt of
the consideration and acceptance of this EULA by Licensee, Licensor shall issue
to Licensee one or more software keys to allow Licensee to install and activate
5. Ownership and
5.1 Retention of 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 or in any
intellectual property included in the Software, including without limitation
ownership and title. Licensor retains all rights not specifically granted to
Licensee under this EULA.
5.2 Open Source
Certain third party Open Source Software may be currently incorporated in
and/or required to run the Software. LICENSEE SHALL ABIDE BY THE APPLICABLE
LICENSE AGREEMENT FOR SUCH OPEN SOURCE SOFTWARE.
Support and Upgrades.
Commencing on the date of this License and continuing until the earlier of (a)
the end of the life of the Software, as solely determined by Licensor; or (b)
termination of this EULA, Licensor shall provide, at no cost to Licensee,
Standard Maintenance and Online Support Services to Licensee as provided in
Attachment 1 to this EULA.
Upon payment of the annual maintenance price for Custom Support Services, Licensor
shall provide to Licensee the Custom Support Services as provided in Attachment
1 to this EULA. Licensee's failure to pay annual Custom Support Fees on or
before the due date shall terminate Licensor's obligation to provide Custom
Support Services for Licensee for all periods commencing after the expiration
of the most recent calendar year for which the Custom Support Fees were paid to
For purposes of clarification, Licensee is not required to purchase Licensor's Custom
Upgrades. During the Term
of this EULA, Licensor shall provide Licensee with a copy (or reasonable number
of copies) of any upgrades to Prepar3D® Professional Plus, promptly upon
commercial release thereof, subject to payment by Licensee of the applicable
Upgrade Fees for the remainder of the annual maintenance period. Upon delivery
to Licensee, Upgrades shall become part of the Software, subject thereby to all
provisions of this EULA. Purchase and supply of further Upgrades shall be
subject to payment for all prior Upgrades. Failure of Licensee to purchase an
Upgrade within three (3) years of its release shall void all obligations of
Licensor hereunder to provide any and all future upgrades to either Licensee, unless
otherwise agreed in writing by Licensor. For purposes of clarification, Licensee
is not required to purchase Licensor's Upgrades.
Further Obligations. Except as provided in this Article 6, 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.
7. Licensor Warranty
Licensor warrants that, for a period of thirty (30) days after the date of delivery of the Software or the Upgrade (the
"Warranty Period"), the Software or Upgrade 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 or Upgrade is supplied by Licensor shall be
free from defects in materials and workmanship.
Warranty hereunder does not cover (1) insignificant defects that
do not prevent use of the Software or Upgrade, (2) Software or Upgrade failures
due to inherent deficiencies or incompatibilities in operating systems, third
party software or hardware, (3) damage resulting from accident, abuse or
misapplication, and (4) any defects or performance issues based on Upgrade or
use of the Software or Upgrade in combination with other software, devices or
services, where such defects, failures or damages would not have occurred from the
normal use for which the Software or Upgrade was intended apart from such use
in combination with other software, devices or
the event of a claim that the Software or an Upgrade is in breach of this
Section 7.1, Licensee shall
(i) give Licensor prompt written notice of such claim and (ii) allow Licensor
reasonable opportunities to remedy the claim. If Licensor is not able to
remedy the claim, such that the Software or Upgrade, or media in respect
thereof, after such remedy still fails to meet the warranty stated in this
Section 7.1, including its
exclusions, Licensee may return the Software or Upgrade and surrender all
rights under this EULA relating to the Software or Upgrade, as the case may be,
in which case Licensor shall refund the consideration received by Licensor from
Licensee in respect of that Software or Upgrade.
Section 7.1 states Licensor's
entire obligation to Licensee regarding claims of breach of warranty.
and Copyright Indemnification.
will defend Licensee against any claim that the Licensed Software infringes a
patent or copyright in the United States of America ("Claim") as follows:
Licensor will pay costs, damages and reasonable attorneys' fees that a court
finally awards as a result of a Claim, provided that Licensor shall have the
sole authority to control, defend, negotiate and settle any such Claim. Under
no circumstances shall Licensor's total payment for such defense expense and
costs, damages and reasonable attorneys' fees for a Claim exceed the
consideration paid as set forth in Article 1. Under no circumstances shall
Licensor be responsible for special, indirect or consequential damages.
qualify for such defense and payment hereunder, Licensee must (i) give Licensor
prompt written notice of a Claim; and (ii) allow Licensor to control, and fully
cooperate with Licensor in, the defense of the Claim and all related settlement
agrees that, if the Software becomes, or Licensor believes the Software is
likely to become, the subject of a Claim, Licensee will permit Licensor, at
Licensor's sole option and expense, either to secure the right of Licensee to
continue using the Software or to replace or modify the Licensed Software so that
it becomes non-infringing. However, if neither of the foregoing alternatives
is available on terms that are reasonable in Licensor's sole judgment, Licensee
shall return the Software and surrender all rights under this EULA upon
Licensor's written request. Licensor shall, upon receipt of the Software in
such circumstances, terminate this License and refund the consideration
received by Licensor from Licensee.
shall have no obligation to Licensee with respect to any Claim based upon use
of third party Open Source Software, Modification or use of the Software in
combination with other software, devices or services where infringement would
not have occurred from the normal use for which the Software was intended apart
from such Modification or use in combination with other software, devices or
Section 7.2 states Licensor's
entire obligation to Licensee regarding claims of infringement.
DISCLAIMERS. OTHER THAN AS
PROVIDED IN SECTIONS 7.1 AND 7.2 OF THIS EULA, 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,
EFFORT AND RESULT 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. OTHER THAN AS PROVIDED IN SECTION 7.2 OF THIS EULA, 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 MAY BE 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 discretion, to: (a) replacement of any
defective Software or Documentation; or (b) 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.
liability for any and all claims, costs, damages, losses, liability or expenses
from any cause whatsoever related to this EULA, the Software or Documentation, any
use thereof or any products or services derived therefrom, shall be limited to
the consideration received by Licensor from Licensee as provided in this EULA.
no event shall Licensor be liable for any damages caused by breach of this EULA
by Licensee or any of their respective directors, officers, employees,
representatives, agents, guests or invitees.
shall not be liable for any indirect, special, incidental, punitive or consequential
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 based on any third party
by Licensee of any provision of Article 3 or 4 of this EULA shall render void, ab
initio, without requirement of notice from Licensor, any and all warranties
and indemnity obligations to the breaching party, and Licensor shall not be
liable for any claims, costs, damages, losses, liability or expenses from any
cause whatsoever under this EULA to such breaching party or any director,
officer, employee, representative, agent, guest or invitee thereof.
limitations shall apply regardless of the claim and regardless of the form of
Developers. The remedies, limitations
and exclusions described in this Article 8 also apply to the liability of any
third party developers supplying the Software or any components of the Software
to Licensor. The limitations of remedies applicable to Licensor and such
developers are not cumulative and such developers are intended beneficiaries of
this Article 8.
Responsibility and Indemnity.
Responsibility. Licensee shall have
the sole and exclusive responsibility for: (1) selection of the Software to
achieve its and their intended results; (2) the installation of the Software;
(3) the use of the Software; (4) the results obtained from the Software; and
(5) the selection and use of, and the results obtained from, any other
software, devices 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.
Indemnification. Licensee shall 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 relating to: (1) Licensee's breach of this EULA;
(2) Licensor's enforcement of Licensor's rights under this EULA; (3) 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; and (4) Use of the Software in
combination with other software, devices or services apart from the normal use
for which the Software was intended.
10. Government Use.
10.1 Application. This Article 10 applies whenever
the Licensee is 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 conditions.
10.2 Definition. The Software and
Documentation is commercial computer software and documentation within the
meaning of the applicable acquisition regulations (e.g., FAR 2.101, DFARS
252.227-7013, DFARS 252.227-7014 or DFARS 227.7202-3). The Software and
Documentation is a work with all rights reserved under the copyright laws of
the United States.
10.3 Coverage. Sections 9.2 (Indemnification),
13.3 (Entire Agreement), 13.5 (Applicable Law
and Jurisdiction) and 13.6 (Limitation on
Actions) 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.
10.4 If any term or
condition set forth in this EULA, including its Attachments, (a) allows for the
automatic termination of the Government's license rights or maintenance
services; (b) allows for the automatic renewal of services and/or fees; and/or
(c) requires the governing law to be anything other than Federal law, then such
term and condition 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. Moreover, to the extent any term or condition set forth in this EULA,
including its Attachments, is contrary to U.S. Federal procurement law, then
such term and condition shall not apply with respect to the U.S. Federal
Government, but shall continue to apply to prime contractors and subcontractors
of the U.S. Federal Government.
11.1 For Breach. Either Licensor
or Licensee may terminate this EULA for failure of the other to comply with any
of the terms and conditions of this EULA, in which case:
licenses and rights granted by Licensor under this EULA shall terminate;
shall deliver to Licensor or destroy all copies of the Software and
Documentation, and all tangible embodiments thereof. Upon request of Licensor,
Licensee shall provide to Licensor a written certification signed by an officer
of Licensee certifying such delivery or destruction; and
following provisions of this EULA shall survive: Articles 3, 5, 7, 8, 9, 10, 12, and 14, and
Sections 13.3 through 13.7. Sections 6.1 and
6.2 shall survive termination of this EULA only for the remainder of the
applicable Maintenance and Support services period paid by Licensee.
11.2 At Licensee's
Licensee may terminate this EULA at any time after Licensor's receipt of full consideration
and pursuant to written notice to Licensor, effective ninety (90) days after
receipt by Licensor.
12. Compliance. Licensee shall 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.
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. If there is a conflict between this EULA and
any license agreement imbedded in the Software or any click-through license
agreement entered into by Licensee in connection with the download or
installation of the Software, this EULA shall prevail. This EULA may be
amended only by a written instrument executed by both Licensor and Licensee.
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.
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 EULA, LICENSOR AND LICENSEE SHALL (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.
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
Notices. Any notice given
pursuant to this EULA may be given by: (1) personal delivery; (2) deposit in
the United States mail, prepaid return receipt requested; (3) deposit with a
recognized courier company, prepaid, return receipt requested; or (4) facsimile
transmission; in each case to the last address or fax number, as the case may
be, of which the sending party has received actual or constructive notice. Any
such notice shall be deemed to be received: (i) when delivered, if given
pursuant to clause (1) of the previous sentence; (ii) on the earlier of (a) the
fourth day after deposit, or (b) at the time verification is made of delivery,
if given pursuant to clauses (2) or (3) of the previous sentence; or (iii) when
received, if given pursuant to clause (4) of the previous sentence.
13.8 Add-on Software. Add-on Software
may be included with the Software when received by Licensee. Add-on Software
is not part of the Licensed Software and is subject to separate terms and
conditions as set forth by the licensor of such Add-On Software. Licensor
shall not have any responsibility for any aspect of the Add-on Software.
13.9 Export Control Laws
Software is subject to United States export controls. No Software may be
downloaded or otherwise exported or re-exported: (1) into (or to a national or
resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other
country to which the United States has embargoed goods; or (2) to anyone on the
following United States lists: Department of Commerce-Denied persons list,
Unverified List, Entity list; Department of State-Debarred List; Department of
the Treasury's Office of Foreign Assets Control (OFAC)-Specially Designated
Nationals List (SDN List). These lists are subject to change and you must
comply with the list as it exists in fact. By downloading or using the
Software, you are agreeing to the foregoing and all applicable export control
laws. You are also warranting that you are not under the control of, located
in, or a resident or national of any such country or on any such list. You
agree to comply strictly with all United States export control laws and assume
sole responsibility for obtaining licenses to export or re-export as may be
14. Definitions. For
purposes of this EULA:
14.1 "Add-on Software"
means any third party software that is intended for use with the Software that
is not part of the Software and is subject to contractual terms required by the
licensor of such Add-on Software.
14.2 "Claim" has the
meaning provided in Section 7.2.1.
14.3 "Custom Support
Services" means custom support services for Prepar3D® technology (exclusive of
3rd party software) included with the purchase of Maintenance and
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.
14.5 "Machine" means a
computer or any other apparatus or device that comprises, incorporates,
accesses or includes, without limitation, a computer or other system capable of
storing, accessing, processing, using or displaying the Software or its output.
means any computer software that: (1) is derivative of the Software; (2)
emulates or performs substantially the same functions as the Software; or (3)
results from the merger of the Software with other software.
Source Software" means software for which the underlying source code is
publicly available under licensing restrictions that provide a user the right
to use, create derivatives of and/or redistribute the software, and which may include
certain conditions on use such as an attribution requirement or a requirement that
the user provide or offer the source code, derivatives and applications
thereof, on the same or similar terms, to anyone to whom is distributed user's
software that includes or is based on such software.
means all or any part of the Lockheed Martin Prepar3D® Professional
Plus computer program, 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. Source code relating to the Software is not
"Software" for purposes of this EULA, and this EULA does not provide Licensee
with any rights related to any source code.
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 11.
"Upgrade(s)" or "Upgrades" means a new release, a new version, an upgrade of
the Software released commercially by Licensor and identified by a new release
number, new version number, or new name.
as relates to the Software, whether in initial capitalized form or not and
including any form of such word as a noun or a verb, means: (1) copying of same
into a machine for processing; (2) storing of same in a machine; (3)
transmission of same through a machine; (4) display of same on a machine;
and/or (5) processing of same by a machine.
Period" has the meaning provided in Section 7.1.1 of this EULA.
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
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.