This is a legal agreement between you and
Tibi Design Studio SRL (TDS Sim Software). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE
DOWNLOADING, INSTALLING OR USING THE PROGRAM (HEREINAFTER DEFINED). THE
PROGRAM MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO
PREVENT UNAUTHORIZED USE AND COPYING. BY INSTALLING OR USING THE
PROGRAM YOU CONSENT TO THE TRANSMISSION OF CERTAIN COMPUTER INFORMATION
REQUIRED FOR ACTIVATION AND/OR VALIDATION.
THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE MODIFIED BY A SEPARATE SOFTWARE LICENSE AGREEMENT BETWEEN TDS Sim Software AND END USER.
YOU ARE DEEMED TO CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY INSTALLING, COPYING, OR OTHERWISE USING THE PROGRAM. FUTHERMORE, THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY PERSON THAT OBTAINED THE PROGRAM AND ON WHOSE BEHALF IT IS USED.
YOU AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO THIS AGREEMENT AND HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION THAT REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OR THIS AGREEMENT, DO NOT PROCEED WITH THE PURCHASE, DOWNLOAD, INSTALLATION OR USE OF THE PROGRAM.
Authorized User: means those licensed uniquely identified individuals
who are authorized by you to install and/or use the Software regardless
of whether those individuals are actively using the Software at any
given time. Licenses granted on an Authorized User basis may be
reassigned between uniquely identified individuals over time, but may
not be reassigned so frequently as to enable the sharing of a single
license between multiple users.
Documentation: means any supporting product help and technical specifications documentation provided by TDS Sim Software with the Software to you.
License Term: means the Software license term specified on the applicable Ordering Document or by an Authorized Partner. The License Term may be a fixed term, a limited term for Evaluation Versions, or perpetual.
Customer Data: means data generated by you or your Authorized User and used by or imported into the Software, but excludes data generated by a Client Sublicensee unless such data is combined with your data or is relevant to your provision of services to such Client Sublicensee.
This Agreement governs your use of any of TDS Sim Software’s software program (the "PROGRAM"). Software may include the TDS GPS Manager, TDS GTNXi Flight Sim or any other software released by TDS Sim Software. You represent and warrant that you have authorized the download and installation of the PROGRAM. Your rights to use and reproduce the PROGRAM are expressly set out in this Agreement.
The PROGRAM is licensed and not sold. TDS Sim Software owns and retains all right, title, and interest in and to the PROGRAM, including all copyrights, patents, trade secret rights, trademarks, and other Intellectual Property Rights therein. Nothing in this Agreement, including the possession, installation, or use of the PROGRAM assigns or transfers to any person any title, right or interest to the Intellectual Property Rights in the PROGRAM, except as explicitly specified in this Agreement. For the purposes of this Agreement, the sale of the PROGRAM shall mean and confer only the license right to use the Software as specified in this Agreement. “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
The Software may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon your written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Ordering Document. Software shall be deemed delivered when it is made available for download by you (“Delivery”).
You may permit third parties (“Client Sublicensees”) to access the PROGRAM as Authorized Users on your servers but only so the Client Sublicensees may: (a) interact with visualizations generated by you through your use of the Software and based on Customer Data, or (b) themselves create visualizations using Customer Data, provided that in each case such Customer Data is relevant to your provision of services to that particular Client Sublicensee (“Visualization Access”) and further provided that you, in providing your Client Sublicensees Visualization Access, are not acting as “Marketing Service Provider”, “Service Bureau” or other entity with a similar business model. Client Sublicensees may not publish their own data to your Server Software, use any data other than Customer Data with your Server Software or access your Server Software for any other purposes except as expressly permitted in this Section 6. You shall ensure that all Client Sublicensees’ use of Server Software is limited as described in this Section 6 by designating the appropriate access levels for Client Sublicensees within Server Software. You shall be solely responsible for your relationships with Client Sublicensees and must notify Client Sublicensees that TDS Sim Software shall have no warranty, support or other obligation or liability to any Client Sublicensee. You shall be liable for all acts and omissions of your Client Sublicensees as if their acts or omissions were your own.
Subject to the terms and conditions of this Agreement, grants a limited non-exclusive, non-transferable, non-sub-licensable and non-perpetual right to you to download, install and use the PROGRAM only in accordance with (a) the documentation; (b) License Term (c) access by Authorized Users and/or permitted data size (as applicable). You will immediately inform TDS Sim Software if the PROGRAM is intended to be used outside the scope of the permitted license. A separate license for any use outside the scope of this Agreement must be obtained from TDS Sim Software in writing in advance of any such use. You may allow your Contractors and Affiliates to use the Software in accordance with this Agreement, provided you shall remain liable for all acts and omissions of your Affiliates and Contractors as if their acts or omissions were your own.
The license granted by this Agreement is limited, non-perpetual and is granted on an undefinitive basis.
You may not sell, license, sub-license, lend, rent, share, lease, transmit, telecommunicate, distribute, embed, assign or otherwise transfer the PROGRAM to others. You must comply with all applicable export control laws in your use of the PROGRAM. Except as expressly permitted above, you may not modify, reverse engineer, decompile, decrypt, extract or otherwise disassemble the PROGRAM.
Use of this PROGRAM does not authorize you, in any manner, to resell or sublicense our products/services or the products/services of any third party. You acknowledge and agree that you will not use the Program for the mining of cryptocurrency (e.g. bitcoin mining) or otherwise misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO.
The license does not permit you to distribute, sell, sublicense, rent, lease or use the PROGRAM, Third Party Code or Sample Code (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under Section 6 of this Agreement. The license does not permit you to directly or indirectly, reverse engineer, adapt, modify, decompile, disassemble, translate the PROGRAM or create derivative works based on the PROGRAM in any way including without limitation, removal of the installer program, electronic end user license agreement, “About” screen, or any copyright or other proprietary notice that appears in the PROGRAM, or otherwise attempt to discover the source code of the PROGRAM. In addition, the license does not permit you to remove or alter any proprietary notices or labels on the PROGRAM. There shall be no rights implied to you or any person using the PROGRAM. The license rights granted under this Agreement shall terminate immediately in the event of material breach of any provisions of this Agreement.
TDS Sim Software may terminate this Agreement immediately and without prior notice if you breach any term, or otherwise fail to comply with this Agreement. In the event of termination for any reason, you agree to immediately destroy and/or erase the original and all copies of the PROGRAM and to discontinue its use, and you will not otherwise retain or store the PROGRAM or any copies thereof, in any form or medium. You also agree to provide to TDS Sim Software proof of confirmation of your discontinuance and non-use upon request.
TDS Sim Software warrants for a period of ninety (90) days from the date the PROGRAM is delivered to you that the PROGRAM shall substantially conform to TDS Sim Software provided written specifications. In the event of any alleged breach of the above express warranties, you shall report the details of such alleged breach in writing to TDS Sim Software within the specified ninety (90) day warranty period. If such alleged breach is reported as required and substantiated by TDS Sim Software, your exclusive remedies shall be, at TDS Sim Software’s sole option, for TDS Sim Software to promptly repair or replace the PROGRAM or any portion thereof necessary to remedy the breach or to refund the fees actually received by TDS Sim Software for this license. EXCEPT AS SET FORTH ABOVE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE PROGRAM IS AT YOUR SOLE RISK. TDS Sim Software, AND ANY APPLICABLE LICENSORS, PROVIDES THE PROGRAM (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION AND SUPPORT) ON AN "AS IS", “WHERE IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR CONDITION ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. TDS Sim Software DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PROGRAM WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT DEFECTS IN PROGRAM WILL BE CORRECTED. FURTHERMORE, TDS Sim Software DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PROGRAM IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TDS Sim Software OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
EXCEPT FOR THE EXPRESS WARRANTIES AND INDEMNITIES SET FORTH HEREIN, YOU HEREBY WAIVE, RELEASE AND DISCLAIM, ALL WARRANTIES, CONDITIONS, INDEMNITIES, OBLIGATIONS AND LIABILITIES OF TDS Sim Software AND TDS Sim Software'S LICENSORS AND ALL OTHER REMEDIES, RIGHTS, CAUSES OF ACTION AND CLAIMS AGAINST TDS Sim Software AND TDS Sim Software'S LICENSORS WITH RESPECT TO THE PROGRAM, ALL RELATED DOCUMENTATION AND ANY SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN CONTRACT, INCLUDING FUNDAMENTAL BREACH, TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF TDS Sim Software AND TDS Sim Software'S LICENSORS (WHETHER ACTIVE, PASSIVE OR IMPUTED) AND ANY OBLIGATION, LIABILITY, REMEDY, RIGHT OR CLAIM FOR INFRINGEMENT. YOU ACKNOWLEDGE THE PROGRAM IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, BUT NOT LIMITED TO, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TDS Sim Software EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES. YOU ACKNOWLEDGE THAT TDS Sim Software IS ONLY WILLING TO ENTER INTO THIS AGREEMENT ON THE CONDITION THAT YOU AGREE TO BE BOUND BY THE LIMITATIONS SET FORTH IN THIS AGREEMENT.
TDS Sim Software WILL HAVE NO LIABILITY OR OBLIGATION FOR ANY DAMAGES OR REMEDIES, INCLUDING, WITHOUT LIMITATION, THE COST OF SUBSTITUTE GOODS, LOST OR CORRUPTION OF DATA, LOST PROFITS, LOST REVENUES OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, GENERAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE PROGRAM. IN NO EVENT WILL TDS Sim Software'S TOTAL AGGREGATE LIABILITY (WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT OR OTHER LEGAL THEORY WITH REGARD TO THE PROGRAM AND/OR THIS AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY TDS Sim Software DIRECTLY ATTRIBUTABLE TO THIS LICENSE OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS LESSER. Furthermore, TDS Sim Software will not be liable for any delay or failure to perform its obligations under this Agreement as a result of any causes or conditions beyond TDS Sim Software's reasonable control as determined in its sole discretion.
Subject to Section 14 herein, TDS Sim Software will indemnify and hold you harmless against any damages resulting from use of the PROGRAM finally awarded against you pursuant to a judicial proceeding, to the extent such proceeding is based upon an infringement of any valid U.S. patent issued prior to the date you receive the PROGRAM from TDS Sim Software, or any valid U.S. copyright by the PROGRAM, provided that you: (i) give written notice of the claim promptly and within thirty (30) days to TDS Sim Software; (ii) give TDS Sim Software sole control of the defense and settlement of the claim; (iii) provide to TDS Sim Software all available information and assistance; and (iv) have not compromised or settled such claim. If the PROGRAM is found to infringe or in TDS Sim Software's opinion is likely to infringe, TDS Sim Software may at its sole discretion elect to: (i) obtain for you the right to use the PROGRAM; (ii) replace or modify the PROGRAM so that it is non-infringing; or (iii) remove the PROGRAM and refund to you any prepaid, unused license fees for the duration of the then-current License Term. TDS Sim Software will have no obligation under this Section 13 for any claims which result from: (i) use of the PROGRAM in combination with any non-TDS Sim Software provided software (including any portion of the PROGRAM not authored by TDS Sim Software); (ii) TDS Sim Software's compliance with your designs or specifications; (iii) modification of the PROGRAM by you or anyone other than TDS Sim Software; or (iv) use of an allegedly infringing version of the PROGRAM, if the alleged infringement could be avoided by the use of a different version made available to you by TDS Sim Software. This Section 15 sets forth the entire liability of TDS Sim Software and your exclusive remedies for claims of infringement involving the PROGRAM.
You acknowledge that the PROGRAM constitutes confidential information of TDS Sim Software that is proprietary and valuable to TDS Sim Software and its licensors and you will use the same level of care as a reasonable and prudent businessperson would to protect and safeguard the confidentiality of such confidential information while it is in your possession or control. You will not use or reproduce the PROGRAM for any purpose not expressly set out herein and will not disclose to or grant any other party access to the PROGRAM for any purpose, other than as expressly permitted herein. You acknowledge and agree that you will not publish or make public any performance details or information about the PROGRAM without the prior written permission of TDS Sim Software. You acknowledge and agree that performance and testing results are confidential information and will only be shared with those within your organization who have a need to know. If you breach your confidentiality covenants herein, then in addition to any other remedies TDS Sim Software may be entitled to, TDS Sim Software will be entitled to apply to a court of competent equitable jurisdiction for and obtain injunctive relief, including an interlocutory injunction, to enjoin such breach or any anticipated breach. You acknowledge that other remedies will not adequately compensate TDS Sim Software in the event of your breach or anticipated breach of your confidentiality covenants herein. Your confidentiality covenants in this Section 16 will not apply to information which you can conclusively prove: (i) was developed independently by you without the use of the PROGRAM; (ii) is generally available to the public; or (iii) is available to you on a non-confidential basis from other lawful sources.
If the PROGRAM is acquired by any agency or other part of the U.S. government in a transaction subject to the Federal Acquisition Regulations or the Defense Federal Acquisition Regulations, the PROGRAM is furnished with Restricted Rights. Use, duplication, or disclosure of the PROGRAM by the U.S. government is subject to all applicable restrictions set forth in such Regulations, as amended from time to time, including subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at Section 48 C.F.R. 52.227-19.
Sections 3, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, and all other provisions of this Agreement which may reasonably be interpreted as surviving termination of this Agreement, shall survive the termination of this Agreement.
This Agreement constitutes the entire agreement between you and TDS Sim Softwareregarding the PROGRAM. If any provision is found to be invalid by a court of competent jurisdiction, the balance of the provisions will remain in full force and effect. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, U.S. , excluding its conflict of laws rules. The parties hereby attorn to the jurisdiction of the courts within the State of Delaware in the event of any dispute hereunder. The provisions of the U.N. Convention on Contracts For The International Sale of Goods (1980) and the American Law Institute’s Principles of the Law of Software Contracts (”Principles”) are expressly excluded. The parties agree that (i) the Principles shall have no application whatsoever to the interpretation or enforcement of this Agreement, and (ii) neither party shall invoke the Principles in whole or in part in any proceeding relating to this Agreement. Notwithstanding the foregoing, TDS Sim Software may bring suit in any appropriate forum or court of competent jurisdiction for any breach of this Agreement or misappropriation of its intellectual property rights, including claims for equitable and injunctive relief.
The rights, restrictions, limitations, disclaimers and remedies granted to, retained by, or for the benefit of TDS Sim Software will enure to the benefit of and will be enforceable by TDS Sim Software and its licensors, successors and assigns. The obligations, covenants and rights, which apply to you, will enure to your benefit and will be binding on you and your permitted successors and assigns.
You agree that TDS Sim Software may disclose you as a customer of TDS Sim Software and use your name and logo on TDS Sim Software’s website and in promotional materials as a licensee of the PROGRAM, unless you advise TDS Sim Software to the contrary in writing within thirty (30) days of the date you receive the PROGRAM from TDS Sim Software.
You agree that TDS Sim Software may collect, maintain, process and use diagnostic, technical and related information, including information related to your device, computer, system, application software, peripherals to facilitate the provision of software update, product support and compliance verification, and otherwise to improve the PROGRAM and other software products and delivery of related services.
Where applicable, you agree to advise TDS Sim Software in the event there is any change to your residence status or should you become registered for the purposes of the Excise Tax Act.
Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.