1. License Grant. Subject to the
terms and conditions of this EULA, Licensor hereby grants Licensee a nontransferable,
nonsublicenseable, 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, (5) in the Territory,
and (6) 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, 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:
Lockheed Martin Prepar3D®
Copyright ©
2010-2015, Lockheed Martin Corporation.
License terms
apply.
All Rights
Reserved.
3.2 Returns. Licensee 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, subcontract, delegate 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 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.
4.7 Non-Academic Use. Use the Software
outside the scope of the license grant as provided in Section 1.
5. Ownership and
Rights.
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
Software.
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.
6. Maintenance,
Support and Upgrades.
6.1
No
Further Obligations. 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
and Indemnity.
7.1
Limited Warranty.
7.1.1. Licensor
warrants that, for a period of sixty (60) days after the
date of delivery of the Software (the "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.
7.1.2. Warranty
hereunder does not cover (1) insignificant defects that do not prevent use of
the Software, (2) Software 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 use of the Software 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 was intended apart from
such use in combination with other software, devices
or services.
7.1.3. In the event of a
claim that the Software 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 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 and surrender all rights under
this EULA relating to the Software, as the case may be, in which case Licensor
shall refund the consideration received by Licensor from Licensee in respect of
that Software.
7.1.4. This Section 7.1 states Licensor's
entire obligation to Licensee regarding claims of breach of warranty.
7.2
Patent
and Copyright Indemnification.
7.2.1. Licensor 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.
7.2.2. To 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 negotiations.
7.2.3. Licensee 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.
7.2.4. Licensor 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
services.
7.2.5. This Section 7.2 states Licensor's
entire obligation to Licensee regarding claims of infringement.
7.3 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.
8. Remedy.
8.1
Exclusive
Remedy.
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.
8.2
Limitations
and Exclusions.
8.2.1.
Licensor's
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.
8.2.2.
In
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.
8.2.3.
Licensor
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 claim.
8.2.4.
Breach
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.
8.2.5.
All
limitations shall apply regardless of the claim and regardless of the form of
action.
8.3
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.
9. Licensee
Responsibility and Indemnity.
9.1
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.
9.2
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). By accepting
delivery of the Software
and Documentation,
the Customer agrees that such use of such software is limited to the terms of
this Agreement. However, Licensee shall only have Restricted Rights applicable
regulations to the Software and Documentation. The terms and conditions of this Article
shall pertain to the Licensee? use and disclosure of the Software and Documentation, and shall supersede
any conflicting contractual terms or conditions. 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. Termination.
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:
11.1.1. All licenses and
rights granted by Licensor under this EULA shall terminate;
11.1.2. Licensee 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
11.1.3. The following
provisions of this EULA shall survive: Articles 3, 5, 7, 8, 9, 10, 12, and 14, and
Sections 13.3 through 13.7.
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. Miscellaneous.
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. 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.
13.5
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 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.
13.6
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.
13.7
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
Acknowledgement.
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
required.
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 "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.
14.4 "Prepar3D
Website" means the
website at http://www.prepar3d.com/ or at any successor uniform resource
locator designated by 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.
14.6 "Modification"
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.
14.7 "Open 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.
14.8 "Software"
means all or any part of the Lockheed Martin Prepar3D® Academic
Version 3 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.
14.9 "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 upon termination
of this EULA as provided in Article 11.
14.10 "Upgrade",
"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.
14.11 "Use," 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.
14.12 "Warranty
Period" has the meaning provided in Section 7.1.1 of this EULA.
14.13 "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
graduate students, 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.
14.14 "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.
