Flite Advantage End User License Agreement for Personal Use

This End-User License Agreement (this “EULA”), by and between Flite Advantage Simulation and Training, LLC (“FAST LLC” or “Licensor”), and the Licensee (“Licensee,” “You,” or “Your”), who purchases the license to Use (as defined below) the FAST Software (as defined below) from FAST LLC  (in the singular “Party”, but when used collectively to refer to both, together, the “Parties”), governs Licensee’s Use of the FAST Software.

NOW WHEREFORE, for good and adequate consideration the Parties agree as follows: This EULA shall apply only to FAST Software provided by FAST LLC or an Approved Source (as defined below), regardless of whether other software is referred to or described herein.

1)     Certain Definitions

a)     “Approved Source” means (i) FAST LLC or (ii), if applicable, a FAST LLC authorized reseller, distributor or systems integrator from whom You acquired the FAST Software.

b)     “BASE SOFTWARE” means the FAST Software, exclusive of any Updates or Upgrades thereto.

c)     “Documentation” means the FAST LLC user or technical manuals, training materials, specifications or other documentation applicable to the FAST Software and made available to You by FAST LLC or an Approved Source.

d)     “Effective Date” means the date on which Licensee obtains the license to Use FAST Software from FAST LLC or an Approved Source.

e)     “FAST Software” means the Flite Advantage Simulation & Training computer programs and Updates.

f)      “Open Source Software” means any software or component, module or package that contains, or is derived in any manner (in whole or part) from, any software that is distributed as free software, open source software or similar licensing or distributions models. Open Source Software does not include the FAST Software.

g)     “Policies” means the policies, including, but not limited to, product-specific terms applicable to specific versions of the FAST Software, the Terms of Service, Privacy Policy, Return and Support Policy and all documents referenced therein, as amended and posted on the Website (as defined below).

h)     “Service(s)” means any Internet-based services, additional downloads, and support services for the FAST Software that are specified on the product description sheet FAST LLC provided to Licensee, unless other terms accompany those items on delivery.

i)      “Third Party Software” means any software or component, module or package (other than Open Source Software) that contains or is derived in any manner (in whole or in part) from, any software that is licensed or distributed by a third party. Third Party Software does not include FAST Software.

j)      “Updates” means any and all updates, new releases, modifications, and/or supplements to the FAST Software or Documentation that may be provided or offered by FAST LLC at its discretion from time to time.

k)     “Use” or “Using” means to download, install, activate with any applicable license key, access or otherwise use the FAST Software.

l)      “Website” means www.fliteadvantage.com.

2)     License Grant

a)   Subject to the terms and conditions of this EULA, the Policies, and Your payment of the license fee for the FAST Software, FAST LLC hereby grants Licensee a limited, revocable, single, non-transferable, non-exclusive license to Use the FAST Software and Documentation, whether printed or electronic, subject to, and in accordance with, the terms of this EULA (the “License”). Licensee is permitted to Use the FAST Software on no more than one (1) device at any time (for example a flight simulator device, PC, laptop, mobile phone or tablet) and by no more than one (1) user under Licensee’s control at any time. Licensee is responsible for ensuring their device meet(s) all minimum operating requirements before purchasing or downloading the FAST Software.

b)   Licensee shall Use the FAST Software only for their personal use. If Licensee intends to Use the FAST Software for any other purpose, including commercial Use or for the purpose of generating revenue, Licensee must obtain a license for the “Pro” version of the FAST Software. (Please contact FAST at info@fliteadvantage.com)

c)   Access. Licensee may need to create an account using his or her email address as a unique user ID on the Website in order to download the FAST Software. In the event that FAST LLC requires Licensee to create an account, the License is valid only if the information provided when creating the account is complete and accurate.

d)   Provision of Service(s). If FAST LLC provides Licensee with any Update to the FAST Software or Documentation, the same shall become part of the FAST Software or Documentation, as the case may be, licensed hereunder when delivered to Licensee and shall be subject to all of the terms and conditions contained herein. With respect to any suggestions, comments, technical information, or other feedback with regard to the SOFTWARE (the “Feedback”) that Licensee provides to FAST LLC or its licensees in connection with the License, FAST LLC and its licensees may use the Feedback for any purpose without restriction, including, without limitation, for product support and development. FAST LLC will exclusively own all rights in ideas, inventions, works of authorship, strategies, and data created in or resulting from the Feedback, including all intellectual property rights therein. Licensee further agrees that to the extent that FAST LLC does not own all the intellectual property rights in and to the Feedback, Licensee assigns and agrees to assign all intellectual property rights in and to the Feedback to FAST LLC, and Licensee will execute assignments as necessary to achieve this result. Licensee acknowledges that they will not retain any intellectual property rights in the Feedback.

To the extent FAST LLC determines that Licensee is seeking maintenance or support related to Licensee’s attempt(s) to reverse engineer or modify the FAST Software in violation of Section 4(b), FAST LLC shall not be responsible for providing the requested maintenance or support.

e)   Media; License Keys. Licensee may receive the FAST Software in more than one medium; or Licensee may receive copies of the FAST Software in a form that is compatible with operating systems not specified on the applicable invoice. Regardless, Licensee may Use the FAST Software only as expressly permitted in this EULA. Licensee acknowledges and agrees that installation and/or Use of FAST Software may be subject to activation by license key or profile.

f)    Copies. Licensee may copy the Documentation to the limited extent reasonably necessary to facilitate Licensee’s permissible Use of the FAST Software in accordance with this EULA. Licensee may NOT copy the FAST Software for any purpose.

g)   Reservation of Rights. FAST LLC reserves all rights not expressly granted herein.

3)     Intellectual Property

a)   Ownership. Licensee acknowledges and agrees that the FAST Software and the Documentation constitute valuable trade secrets of FAST LLC and/or its affiliates, licensors and suppliers (as applicable). Licensee further acknowledges and agrees that FAST LLC, its affiliates, and/or its licensors (as applicable) own all right, title, and interest in and to: (i) the FAST Software and Documentation (including, without limitation, any and all copies, extracts, and associated media thereof, all concepts, logic, protocols, and specifications related thereto, all images, “applets,” photographs, animations, video, audio, and/or text incorporated therein); (ii) all Feedback; and (iii) all patents, trademarks, trade names, inventions, copyrights, know-how, trade secrets, and other intellectual and industrial property rights, and any related applications or extensions, relating to the items set forth in subparts “(i)” and “(ii)”. Licensee shall not attempt to register any copyrights, register any trademarks or service marks, or apply for any patent or other intellectual property protection for the FAST Software, Documentation or any portion thereof. Licensee hereby irrevocably assigns and agrees to assign all of their right, title, and interest in and to any Feedback to FAST LLC.

b)   Copyright. Without limitation of FAST LLC’s other rights, Licensee acknowledges and agrees that the FAST Software and Documentation are protected by United States copyright laws and international treaty provisions. Subject to the express license grants set forth herein, Licensee must treat the FAST Software and Documentation like any other copyrighted material, and Licensee shall not, and shall not allow any third parties to, reproduce, copy, distribute, publish or resell the FAST Software. This prohibition on publication includes the prohibition of disclosing the FAST Software for others to copy and making the functionality of the FAST Software available to third parties, whether as an application service provider, or on a rental, service, or other similar basis unless expressly authorized by FAST LLC in writing.

c)   Licensed Not Sold. Licensee acknowledges and agrees that the FAST Software and Documentation have been licensed to Licensee pursuant to the terms and conditions of this EULA, and that neither the FAST Software nor Documentation has been sold to Licensee.

d)   Open Source Software. Licensee hereby acknowledges that the FAST Software may utilize Third Party Software and/or Open Source Software that must be licensed under the specific license terms applicable to such Third Party Software or Open Source Software (“Other Licenses”). To the extent any such Other Licenses require that FAST LLC provide Licensee the rights to copy, modify, distribute or otherwise use any Other Licenses that are inconsistent with the limited rights granted to Licensee in this EULA, then such rights in the applicable Other Licenses shall take precedence over the rights and restrictions granted in this EULA, but solely with respect to such Third Party Software and/or Open Source Software. Licensee shall comply with the terms of such Other Licenses. Nothing in this EULA shall obligate FAST LLC to provide any support for Third Party Software or Open Source Software. Other Licenses associated with Third Party Software or Open Source Software applies only to that Third Party Software or Open Source Software and not the FAST Software.

4)     Restrictions and Limitations

a)   General Use Restrictions. Licensee shall not use, copy, merge, or transfer copies of the FAST Software or the Documentation. Licensee shall not knowingly take any action that would cause the FAST Software to be placed in the public domain.

b)   No Reverse Engineering; No Modification. Licensee may not, under any circumstances, reverse engineer, decompile, disassemble, or otherwise attempt to discover, reconstruct, or identify the source code for the FAST Software or any user interface techniques, algorithms, logic, protocols, or specifications included, incorporated, or implemented therein. Furthermore, Licensee may not, under any circumstances, modify, port, translate, or create derivative works of the FAST Software or Documentation. Any attempt to discover, reconstruct, or identify the source code for the FAST Software or any user interface techniques, algorithms, logic, or protocols, or specifications included, incorporated, or implemented therein, shall terminate Licensee’s EULA.

c)   Rental; Leasing.  Licensee will not transfer, sell, assign, sublicense, rent, lease, lend, subcontract, delegate or otherwise transfer, either in whole or in part, the FAST Software, the Documentation, or their rights under this EULA to third parties.  Licensee shall not transmit the FAST Software from one device to another or over a network, or Use the FAST Software in connection with any hardware or software that modifies the number of devices or users that directly access or Use the FAST Software, and Licensee shall not otherwise do anything to circumvent the limitations and restrictions in this EULA.

d)   Markings. Licensee will not alter, remove, modify, or obscure any marking, label or notice, if any, from the FAST Software or Documentation. If Licensee makes any copies of the Documentation in accordance with this EULA, Licensee must reproduce in all such copies all proprietary notices, labels or marks contained in the originals.

5)     Use Audit

FAST LLC may, no more than two (2) times every twelve (12) months, upon seven (60) days’ prior notice to Licensee, appoint its personnel or an independent third-party auditor, who is obliged to maintain confidentiality, to inspect Your records, systems, and facilities to verify that the Use of the FAST Software is in conformity with the terms of the EULA (the “Audit”). Additionally, within thirty (90) days of FAST LLC’s request, Licensee will provide FAST LLC with any records or other information needed to verify that the Use of any and all FAST Software conforms to the License provided under this EULA. If the Audit discloses a shortfall in licenses for the FAST Software, Licensee will immediately pay any applicable fees to obtain from FAST LLC any necessary licenses, subscriptions, and any applicable back maintenance and support. If the underpaid fees exceed five percent (5%) of the value of the total payable license fees, then Licensee will also pay for FAST LLC’s reasonable cost of conducting the Audit.

6)  Term and Termination

a)   Termination. Licensee may terminate this EULA and the License granted herein by ceasing all Use of the FAST Software and Documentation. FAST LLC may terminate this EULA, effective upon written notice to Licensee, if Licensee breaches any term or condition of this EULA.

b)   Licensee Obligations Upon Termination or Expiration. Licensee agrees, upon termination of this EULA, to cease Use of, and to destroy or return to FAST LLC, the FAST Software and any Documentation. Upon termination of this EULA, Licensee shall have no rights to Use the FAST Software or Documentation. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11 of this EULA shall survive any termination or expiration of this EULA and continue in full force and effect.

7)     LIMITED WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY

a)   DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE FAST SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS”, AND FAST LLC AND ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE FAST SOFTWARE, DOCUMENTATION AND/OR USE OF THE FAST SOFTWARE OR DOCUMENTATION (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE FAST SOFTWARE OR DOCUMENTATION (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE. FAST LLC DISCLAIMS ANY WARRANITES AGAINST INFRINGEMENT, INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY RIGHTS.

b)  THE FAST SOFTWARE IS NOT ENDORSED BY OR AFFILIATED WITH ANY AIRCRAFT OR AIRPLANE MANUFACTURER, THEIR PARTNERS OR AFFILIATES, THE UNITED STATES DEPARTMENT OF DEFENSE (DOD), ANY UNITED STATES MILITARY BRANCH, OR ANY FOREIGN GOVERNMENT OR FOREIGN MILITARY IN ANY WAY. ALL FAST LLC PRODUCTS ARE ARTISTIC INTERPRETATIONS AND INTENDED FOR PERSONAL ENTERTAINMENT OR EDUCATIONAL USE ONLY; THEY DO NOT REPLACE REAL-WORLD TRAINING OR FLYING IN AN ACTUAL AIRCRAFT. FAST LLC’s VIRTUAL AIRCRAFT ARE IN NO WAY INTENDED TO CONFORM TO ANY FEDERAL AVIATION ADMINISTRATION (FAA) OR FOREIGN GOVERNMENT STANDARDS OR REGULATIONS. USERS ASSUME ALL LIABILITY RELATED TO FLIGHT TRAINING AND ASSOCIATED RISKS WHEN USING THIS OR ANY OF FAST LLC’s PRODUCTS OR RESOURCES.

c)   OTHER SOFTWARE. FOR THE AVOIDANCE OF DOUBT, FAST LLC DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO ANY OPEN SOURCE OR THIRD PARTY SOFTWARE THAT FAST SOFTWARE MAY UTILIZE AND/OR LICENSEE’S USE THEREOF (INCLUDING, WITHOUT LIMITATION, EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY EXPRESS OR IMPLIED WARRANTIES THAT SUCH SOFTWARE (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE NON-INFRINGING, UNINTERRUPTED OR ERROR-FREE.

d)   LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FAST LLC, ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FROM INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT OR ERROR, OR IN CONNECTION WITH LICENSEE’S ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE SOFTWARE, OR ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY) IN CONNECTION WITH THIS EULA, THE FAST SOFTWARE, THE DOCUMENTATION AND/OR ANY USE OF THE FAST SOFTWARE OR THE DOCUMENTATION, EVEN IF FAST LLC OR ANY OF ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE. FURTHER, IN NO EVENT SHALL FAST LLC’S MAXIMUM, AGGREGATE LIABILITY IN CONNECTION WITH THIS EULA, THE FAST SOFTWARE, DOCUMENTATION AND/OR ANY USE OF THE SOFTWARE OR DOCUMENTATION EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE FAST SOFTWARE.

e)   Responsibilities of Licensee. Licensee shall have the sole and exclusive responsibility to select and determine whether the FAST Software and the Licensee’s Use in accordance with the terms of this EULA will meet Licensee’s needs. Licensee shall pay directly, or reimburse FAST LLC, for all taxes, assessments, permits and fees which are, or may be in FAST LLC’s reasonable opinion, levied upon the Licensee’s execution or acceptance of this EULA or Use of the FAST Software, exclusive of any income taxes owed by FAST LLC on its net income. Licensee is solely responsible for the proper installation and operation of the FAST Software in accordance with the instructions and specifications set forth in the Documentation. FAST LLC shall have no responsibility or liability to Licensee for improper installation or operation of the FAST Software. Licensee represents and warrants that Licensee has full power and authority to enter into this EULA and to perform its obligations hereunder and this EULA constitutes a legal, valid, and binding obligation on Licensee’s part, enforceable in accordance with its terms.

f)    Indemnity. Licensee hereby agrees to indemnify, protect, defend and hold FAST LLC and its suppliers, licensors and distributors and their members, managers, directors, officers, employees, professional advisors, contractors, representatives, and agents harmless from and against any and all claims, losses, and damages, including without limitation, reasonable attorneys’ fees and experts’ fees and disbursements: (i) which may at any time be asserted against FAST LLC by any party for Licensee’s failure to perform any of the covenants, agreements, terms, provisions, or conditions contained in this EULA; (ii) by any party by reason of Licensee’s use or misuse of the FAST Software or Documentation; or (iii) resulting from any failure by Licensee to comply with any term, condition, or restriction in this EULA.

8)  Governing Law; Enforcement

a)   Governing Law. This EULA and the rights and obligations of the Parties hereunder shall be governed by, and construed in accordance, with the laws of the state of Florida, without giving effect to the principles of choice of law thereof. Any action brought by a Party shall be brought exclusively in the federal and state courts located in Hillsborough County, Florida. All Parties agree to submit to the exclusive jurisdiction of those courts and waive trial by jury.

b)   Exclusion of UN Convention, UCITA, and Contracts Act 1999. The terms of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this EULA. The Uniform Computer Information Transactions Act (UCITA) will not apply to this EULA regardless of when or where adopted. Additionally, no person who is not a party to the EULA shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999.

c)  Export. The FAST Software is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments. You agree to comply with all applicable export and import laws and regulations in Your download of, access to, and Use of the FAST Software. Licensee shall not (and shall not allow any third party to) remove or export from the United States or allow the export of any part of the FAST Software or any direct product thereof: (i) into (or to a national resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval (a “Prohibited Country”); or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee represents and warrants that it is not a national or resident of a Prohibited Country and is not located in, or under the control of, a Prohibited Country. Licensee also certifies that they are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. Licensee agrees not to Use or provide the FAST Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior written consent of the United States government.

d)     Equitable Relief. Licensee acknowledges that any actual or threatened breach of the provisions of this EULA will constitute immediate, irreparable harm to FAST LLC and its licensors (as applicable) for which monetary damages would be an inadequate remedy. In the event of such breach or threatened breach, FAST LLC will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

9)   US Government End Users

The FAST Software and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in [FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software)/Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202-1 through 227.7202-4.] Notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Government end users will acquire the FAST Software and Documentation with only those rights set forth in this EULA. Any provisions in this EULA that are inconsistent with the FAR are not enforceable against the U.S. Government.

10)  Invalidity of Provisions

If any provision in this EULA is invalid or unenforceable, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability and all other provisions of this EULA shall remain in effect.

11)   Miscellaneous

a)   This EULA, together with the Policies, set forth the entire agreement between FAST LLC and Licensee with respect to the FAST Software and Documentation and Licensee’s Use thereof. In the event of any discrepancy or conflict between the terms and conditions of this EULA and the Policies, the terms and conditions of this EULA shall govern. Both Parties hereby acknowledge and agree that any and all suppliers, distributors and licensors of FAST LLC (and any and all licensors of FAST LLC’s licensors) shall be direct and intended third party beneficiaries of this EULA (including, without limitation, the provisions regarding intellectual property ownership, and the disclaimers of warranties and limitations on liability, as set forth herein), with the right to directly enforce the same. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either Party, regardless of who drafted or was principally responsible for drafting this EULA or any specific term or conditions hereof. All section headings are for reference only and shall not be considered in construing this EULA. This EULA shall bind and inure to the benefit of the Parties and their successors and permitted assigns. Both Parties are acting as independent contractors with respect to the activities hereunder. In the event of any legal proceeding between the Parties arising out of or related to this EULA, the prevailing Party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including but not limited to reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.

b)   FAST LLC may revise the terms of this EULA and provide such revised terms to You from time to time. Such revised terms will be binding upon Your checking and/or clicking the “I Accept” or similar box or button associated with such revised terms or upon installing any Update provided to You.

c)   Notwithstanding any other provision of this EULA, Licensee is not permitted to Use Updates unless Licensee, at the time of acquiring such Update, already holds a valid license to the BASE SOFTWARE and is in compliance with the License.