BY PRESSING THE "I AGREE" BUTTON ON SETUP EXECUTABLE OR WINDOWS INSTALLER PACKAGE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS. NEXTGEN SIMULATIONS WILL LICENSE THE PRODUCT ONLY IF YOU AGREE TO ALL OF THESE TERMS. PLEASE READ THIS AGREEMENT: IF YOU DO NOT AGREE WITH ANY OF ITS TERMS, SELECT THE "CANCEL" BUTTON ON INSTALLATION.
If NextGen Simulations accepts this agreement ("Agreement"), it is an Agreement between the entity or individual entering into this agreement ("Customer") and NextGen Simulations, a Software Development Company of Microsoft® Flight Simulator® and Lockheed Martin® PREPAR3D® Add-ons ("NEXTGENSIM"). If NEXTGENSIM accepts this agreement, then this Agreement is effective on the date it is communicated to Customer.
IF MORE THAN ONE LICENSE AGREEMENT COULD APPLY TO THE PRODUCT, THE FOLLOWING ORDER OF LICENSE AGREEMENT PRECEDENCE APPLIES: (1) WRITTEN MASTER END USER LICENSE AGREEMENT WITH NEXTGENSIM, (2) WEB BASED LICENSE AGREEMENT WITH NEXTGENSIM, AND (3) THE LICENSE AGREEMENT PROVIDED WITH THE PRODUCT.
"Territory" is the country where Customer acquired the license. "Licensed Capacity" is the amount of each Product licensed as established in the Order. "Order" is an agreed written or electronic document identifying the Products to be licensed, subject to the terms of this Agreement. "Product" is the object code of the NEXTGENSIM and all accompanying documentation, including all items delivered by NEXTGENSIM to Customer under Support. "Support" is the support services program as further specified in this Agreement.
Subject to the terms of this Agreement, NEXTGENSIM grants Customer a non-exclusive, non-transferable, perpetual (unless a non-perpetual license is provided on an Order) license, as specified in the relevant Order, to exercise the following rights to the Product up to the Licensed Capacity: a) install on Customer’s owned or leased hardware at a facility owned or controlled by Customer in the Territory; b) operate solely for processing Customer’s own data in Customer’s business operations, and c) make one copy of the Product for archival purposes only (collectively a "License"). If the Product design permits modification, then Customer may only use such modifications or new software programs for its internal purposes and otherwise consistent with the License.
Customer agrees to not: a) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation; b) distribute or provide the Product to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data, or for rental, lease, or sublicense; c) provide a third party with the results of any functional evaluation, or performance tests, without NEXTGENSIM's prior written approval; d) attempt to disable or circumvent any of the licensing mechanisms within the Product; or e) violate any other usage restrictions contained in the Product installation instructions or release notes. Any third party software provided with a Product may be used only with that Product and only in accordance with Section 2 of this Agreement.
NEXTGENSIM warrants that the Product will perform in substantial accordance with its documentation for a period of one year from the date of the Order. This warranty will not apply to any problems caused by software other than the Product, hardware not supplied by NEXTGENSIM, or misuse of the Product.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND NEXTGENSIM, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEXTGENSIM DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
Customer will pay each License fee and/or Support fee upon receipt of invoice, usually - electronically via online sales. Customer will pay, or reimburse, NEXTGENSIM or when required by law the appropriate governmental agency for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on NEXTGENSIM’s net income) imposed in connection with the License and/or the Support fees which are exclusive of these taxes. Customer may acquire such licenses via electronic distribution.
NEXTGENSIM, its Affiliates or licensors retain all right, title and interest to the Product and all related intellectual property and proprietary rights. The Product and any third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Product. NEXTGENSIM reserves any rights not expressly granted to Customer. "Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things: i) any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; ii) as to NEXTGENSIM, and its licensors, the Product and any third party software provided with the Product; and iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; b) is or becomes a matter of public knowledge through no fault of Recipient; c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; d) is independently developed by or for Recipient; or e) is required to be disclosed by applicable law or court order. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement.
EXCEPT FOR VIOLATION OF PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 8), NEITHER PARTY, ITS AFFILIATES OR NEXTGENSIM’S LICENSORS ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
NEXTGENSIM may: i) terminate an Order and the Licenses to the Products on that Order if Customer fails to pay any applicable fees due under that Order within 30 days after receipt of written notice from NEXTGENSIM of non-payment; or ii) terminate all Licenses and this Agreement in whole or in part and all Licenses if Customer commits any other material breach of this Agreement and fails to correct the breach within 30 days after NEXTGENSIM notifies Customer in writing of the breach. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon NEXTGENSIM's request, Customer will immediately return such Product to NEXTGENSIM, together with all related documentation and copies, or certify its destruction in writing.
Customer agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Product or any underlying information or technology except in full compliance with all United States, foreign and other applicable laws and regulations.
NEXTGENSIM is not liable for its failure to perform any obligation under this Agreement during any period in which performance is delayed by circumstances beyond NEXTGENSIM's reasonable control. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Customer may not assign or transfer this Agreement or a License to a third party, whether by merger or otherwise. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. NEXTGENSIM rejects all additional or conflicting terms of a Customer form purchasing document. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party. To the extent NEXTGENSIM provides third party products: if a) such third party product is provided for use with a Product, it may be used only with that Product; b) the documentation contains additional terms that pertain to such third party product, those additional terms govern the third party product in place of the terms of this Order and the Agreement; and c) such third party product contains a third party agreement, Customer’s use of and support for such third party product will be governed solely by that agreement.
The product returns and upgrades are done according to the return/upgrade policy of the store, where this copy of the Software was purchased.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.