Flite Advantage End-User License Agreement

This Flite Advantage Simulation & Training End-User License Agreement (“EULA”) is a legal agreement between you (“Licensee”), which may be an individual, an authorized representative of a company or an authorized agent acting on behalf of the U.S. Government, and Flite Advantage Simulation & Training, LLC ( “FAST”). By checking and/or clicking the “I Accept” or similar box or button at the beginning of the SOFTWARE download and/or installation process, and/or by installing the SOFTWARE or having the SOFTWARE installed (for example, and not by way of limitation, by permitting FAST to install the SOFTWARE on hardware owned, controlled, or operated by Licensee), and/or by downloading the SOFTWARE and/or by activating the SOFTWARE with any associated license key, as applicable, Licensee is agreeing to all the terms and conditions of this EULA.

If Licensee does not agree to be bound by the terms of this EULA, Licensee may not register, access or use the SOFTWARE in any way, and Licensee (either itself or through any of its employees) must not check and/or click any “I Accept” or similar box or button associated with this EULA during the SOFTWARE installation, activation, and/or download process, as applicable.

This EULA provides a license to use the SOFTWARE and contains warranty information and liability disclaimers.

If Licensee registers for a free trial of the SOFTWARE, this EULA will also govern that trial.

This EULA shall apply only to the SOFTWARE. The terms also apply to any Updates, additional downloads, and support services for the SOFTWARE.

By accepting this EULA, Licensee acknowledges that there may be additional agreements or policies that apply to refunds, support guarantees, or privacy that may not be explicitly mentioned within this EULA. These policies and/or agreements can be found on the fliteadvantage.com Legal Page. Licensee accepts responsibility to locate, understand, and accept those agreements and/or policies prior to accepting this EULA.

1)     Certain Definitions

a)     “FAST Software” refers to the Flite Advantage Simulation & Training software product.

b)     “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.

c)     “Third Party Software” means software or software 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.

d)     “SOFTWARE” means collectively: (i) FAST Software and (ii) any Open Source Software and Third Party Software included with the FAST Software.

e)     “Updates” means any and all updates, upgrades, new releases, modifications, and/or supplements that may be provided by FAST from time to time.

2)     License Grant

a)     FAST hereby grants the Licensee a limited, revocable, single, non-transferable, non-exclusive license to install and use the FAST Software and use any end user documentation, whether printed or electronic (together with any copies thereof made in accordance with this EULA, the “Documentation”), subject to, and in accordance with the terms of this EULA. Licensee is permitted to install, load, and use FAST Software on one (1) device under Licensee’s control (for example a PC, laptop, mobile phone or tablet). Licensee is responsible for ensuring its device meets the minimum requirements of FAST Software.

b)    For U.S. Government End Users: The Software was developed at private expense and is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights customarily provided to the public, as set forth in this EULA. Contractor/Manufacturer is Flite Advantage Simulation & Training, LLC, 14167 Newcastle Ave., Spring Hill, Florida 34609.

c)     Access. Licensee must establish an account using his or her email address as a unique user ID at https://www.fliteadvantage.com/ (“Website”) in order to download the SOFTWARE. Licensee may download, install and access the SOFTWARE solely in connection with Licensee’s use of the Website and FAST’s service (“Service”) and solely so long as Licensee’s subscription to the Service is current.

d)     Updates; Releases. If FAST provides Licensee with any Update to the SOFTWARE or Documentation, the same shall become part of the 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 technical information Licensee provides to FAST  or its licensees in connection with the license(s) granted to Licensee hereunder, FAST and its licensees may use such information for any purpose without restriction, including, without limitation, for product support and development.

e)     Media; License Keys. Licensee may receive the SOFTWARE in more than one medium; or Licensee may receive copies of the SOFTWARE that are compatible with operating systems not specified on the applicable invoice. Regardless, Licensee may use the SOFTWARE only as expressly permitted in this EULA. Licensee acknowledges and agrees that installation and/or use of 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 SOFTWARE in accordance with this EULA. Licensee may NOT copy the SOFTWARE.

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

3)     Intellectual Property

a)     Ownership. Licensee acknowledges and agrees that the SOFTWARE and the Documentation constitute valuable trade secrets of FAST and/or its affiliates, licensors and suppliers (as applicable). Licensee further acknowledges and agrees that FAST, its affiliates, and/or its licensors (as applicable) own all right, title, and interest in and to: (i) the 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 ideas, suggestions, or feedback relating to the SOFTWARE or Documentation (“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 SOFTWARE, Documentation or any portion thereof. Licensee hereby irrevocably assigns and agrees to assign all of its right, title, and interest in and to any Feedback to FAST.

b)     Copyright; Copies. Without limitation of FAST’s other rights, Licensee acknowledges and agrees that the 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 SOFTWARE and Documentation like any other copyrighted material.

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

d)     Open Source Software. Licensee hereby acknowledges that the SOFTWARE may utilize or include 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 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 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 other software included in the SOFTWARE.

4)     Restrictions and Limitations

a)     General Use Restrictions. Licensee shall not use, copy, merge, or transfer copies of the SOFTWARE or the Documentation except as may be expressly and specifically authorized in this EULA. Licensee shall not knowingly take any action that would cause the 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 SOFTWARE or any user interface techniques, algorithms, logic, protocols, or specifications included, incorporated, or implemented therein. Furthermore, except as expressly authorized by FAST in the Documentation, Licensee may not, under any circumstances, modify, port, translate, or create derivative works of the SOFTWARE or Documentation.

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 SOFTWARE, the Documentation, its rights under this EULA to third parties, including without limitation, by operation of law, without FAST’s prior written approval and subject to written agreement by the recipient to the terms of this EULA. Licensee shall not transmit the SOFTWARE from one computer to another or over a network, or use the SOFTWARE in connection with any hardware or software that modifies the number of computers or users that directly access or use the SOFTWARE, and Licensee shall not otherwise do anything to circumvent the limitations and restrictions in this EULA.

d)     Export Restrictions; Compliance with Laws. Licensee will not, directly or indirectly, export or transmit the SOFTWARE or Documentation to any country to which such export or transmission is restricted by any applicable law, regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce or such other governmental entity as may have jurisdiction over such export or transmission. Licensee agrees to comply with and conform to all applicable laws, regulations, ordinances, and executive orders relating to Licensee’s use of the SOFTWARE.

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

5)     Use Audit

FAST shall have the right, upon reasonable notice, to conduct and/or have an independent accounting firm conduct, during normal business hours on Licensee’s premises under Licensee’s reasonable supervision, an audit to verify Licensee’s compliance with the terms of this EULA.

6)  Term and Termination

a)     Term. Except as provided in this Section 6, this EULA and the license(s) granted herein shall remain effective until terminated. If SOFTWARE has been licensed to Licensee for evaluation purposes, this EULA will be effective until the end of the evaluation period.

b)     Termination. Licensee may terminate this EULA and the license(s) granted herein by ceasing all use of the SOFTWARE and Documentation. This EULA including, without limitation, the licenses granted herein will automatically terminate if Licensee fails to comply with any term or condition of this EULA. The SOFTWARE may contain code that can disable most or all of the features of the SOFTWARE upon termination of this EULA.

c)     Licensee Obligations Upon Termination or Expiration. Licensee agrees, upon any termination or expiration of this EULA, to cease use of, and to destroy or return to FAST, all copies of the SOFTWARE and Documentation. Upon any termination or expiration of this EULA, Licensee shall have no rights to use the SOFTWARE or Documentation. Sections 1, 3, 4, 5, 6, 7, 8, 9, and 10 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 SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS”, AND FAST AND ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SOFTWARE, DOCUMENTATION AND/OR USE OF THE 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 SOFTWARE OR DOCUMENTATION (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE. FAST DISCLAIMS ANY WARRNITES AGAINST INFRINGEMENT, INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY RIGHTS.

b)     FLITE ADVANTAGE SIMULATION & TRAINING, LLC (“FAST LLC”) PRODUCTS ARE NOT ENDORSED BY OR AFFILIATED WITH TEXTRON AVIATION INC. OR ANY OF ITS AFFILIATES, ANY MANUFACTURER OF AIRPLANES OR AIRCRAFT, THE UNITED STATES DEPARTMENT OF DEFENSE (DOD), ANY 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, UNLESS YOU HAVE COMMERCIAL USE RIGHTS UNDER A SEPARATE AGREEMENT. FAST LLC’S VIRTUAL AIRCRAFT MODELS CLOSELY REPLICATE ACTUAL AIRCRAFT, BUT ARE IN NO WAY INTENDED TO CONFORM TO ANY FAA OR FOREIGN GOVERNMENT STANDARDS OR REGULATIONS. USERS ASSUME ALL LIABILITY RELATED TO FLIGHT TRAINING AND ASSOCIATED RISKS WHEN USING THIS OR ANY OTHER FAST LLC PRODUCT OR RESOURCE. FAST LLC AND ITS ASSOCIATES SHALL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OF DATA, TRAINING FAILURES, OR TRAINING MISHAPS. USE OF, AND CONTINUED USE OF, FAST LLC PRODUCTS AFFIRMS YOUR ACCEPTANCE OF OUR EULA AND TERMS AND CONDITIONS.

c)     OTHER SOFTWARE. FOR THE AVOIDANCE OF DOUBT, LICENSEE ACKNOWLEDGES THAT ANY OPEN SOURCE SOFTWARE OR THIRD PARTY SOFTWARE THAT IS INCLUDED IN THE SOFTWARE IS PROVIDED “AS IS,” AND FAST DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO SUCH SOFTWARE AND/OR 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, 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 SOFTWARE, THE DOCUMENTATION AND/OR ANY USE OF THE SOFTWARE OR THE DOCUMENTATION, EVEN IF FAST 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’S MAXIMUM, AGGREGATE LIABILITY IN CONNECTION WITH THIS EULA, THE SOFTWARE, DOCUMENTATION AND/OR ANY USE OF THE SOFTWARE OR DOCUMENTATION EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE.

e)     Responsibilities of Licensee. Licensee shall have the sole and exclusive responsibility to select and determine whether the 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, for all taxes, assessments, permits and fees which are, or may be in FAST’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 FAST on its net income. As a licensee of the SOFTWARE, Licensee is solely responsible for the proper installation and operation of the SOFTWARE in accordance with the instructions and specifications set forth in the Documentation. FAST shall have no responsibility or liability to Licensee for improper installation or operation of the 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 and its suppliers, licensors and distributors and their directors, officers, employees, professional advisors, contractors, representatives and agents harmless from and against any and all claims, losses, and damages, including without limitation, reasonable attorney’s’ fees and experts’ fees and disbursements: (i) which may at any time be asserted against FAST by any party for Licensee’s failure to perform any of the covenants, agreements, terms, provisions, or conditions contained in this EULA; (b) by any party by reason of Licensee’s use or misuse of the SOFTWARE or Documentation; or (c) 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 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. THIS EULA WILL NOT BE GOVERNED BY  OR INTERPRETED IN ANY WAY BY REFERRING TO ANY LAW BASED ON THE UNIFORM COMPUTER INFORMATION TRANSACTIONS (UCITA), OR THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS HEREBY EXCLUDED.

b)     Equitable Relief. Licensee acknowledges that any actual or threatened breach of the provisions of this EULA will constitute immediate, irreparable harm to FAST and its licensors (as applicable) for which monetary damages would be an inadequate remedy; that injunctive relief is an appropriate remedy for any such breach or threatened breach; and that, in such event, FAST (and/or its licensors, as applicable) will be entitled to immediate injunctive relief without the requirement of posting bond.

9)     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.

10)   Miscellaneous

a)     This EULA and the terms of service posted on the Website (and all documents referenced therein) set forth the entire agreement between FAST and Licensee with respect to the 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 terms of service posted on the Website, 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 (and any and all licensors of FAST’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 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.