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PREPAR3D ACADEMIC VERSION 4

END 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 Rotary and Mission Systems 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 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 2010-2017, 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-on Software" 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 4 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.


 

 

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.

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