Commercial User License Agreement

COMMERCIAL USE LICENSE AGREEMENT

IMPORTANT - PLEASE READ THESE TERMS CAREFULLY: This Commercial Use License Agreement (CULA) is a legal agreement between you (Licensee or you) and Orbx Simulation Systems Pty Ltd (ORBX, us or we) for:

(together the Software Product). The Software Product is sold as a single user licence and we licence use of the Software Product to you on the basis of this CULA and remain the owners of the Software Product at all times. By accessing or otherwise using the Software Product, you agree to be bound by the terms of this CULA. If you do not agree to the terms of this CULA, do not use the Software Product.

1. GRANT OF LICENSE

1.1 In consideration of you agreeing to abide by the terms of this CULA, ORBX hereby grants you a non-exclusive, non-transferable licence to use the Software Product on the terms of this CULA.

1.2 You may install, access, and run a single copy of the Software Product on a single simulator device (controlled by up to five (5) PCs) (SSD) for commercial, for-profit use.

1.3 We may update or require you to update the Software Product, provided that the Software Product shall always match the description of it that we provided to you before you licensed it.

1.4 This Software Product is provided "as is", however ORBX will provide provision of support services in relation to the operation, installation or remedy of issues arising to the use of the Software at its official support website at www.orbxsystems.com. Orbx reserves the right to refuse support if the Licensee violates our websites terms of use or this CULA.

1.5 You may rent the Software Product to a third party only in the context of its use as installed on a SSD. You may charge admission, tuition or other fees for use of the Software only to the extent of its use on any SSD provided for entertainment or training which is authorised by this CULA. 2. RESTRICTIONS

2.1 This Software Product is not part of any formal approved training program under the standards of any aviation regulatory agency or body worldwide, whether private or government. If you use the Software for training then it is your responsibility to obtain the relevant certification for the SSD which uses the Software and we will not be responsible for any loss or damage arising from the use of a Software Product in this manner.

2.2 Except as expressly set out in this CULA or as permitted by any local law, you undertake:

(a) not to copy the Software Product, except where such copying is incidental to normal use of the Software Product or where it is necessary for the purpose of back-up or operational security;

(b) to only use the Software Product for commercial entertainment purposes and not to use the Software Product for flight training purposes;

(c) not to rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the Software Product nor permit the Software Product or any part of it to be combined with, or become incorporated in, any other programs except as permitted by the CULA;

(d) not to provide, or otherwise make available, the Software Product in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person without our prior written consent;

(e) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software Product nor attempt to do any such thing; and

(f) not to modify, use, call GUIDs, reference, extract or in any way make use of the Orbxlibs in any software project be it freeware, donation ware or payware.

3. INTELLECTUAL PROPERTY RIGHTS

You acknowledge that:

(a) all intellectual property rights in and to the original created components of the Software Product (including but not limited to any images, photographs, animations, video, audio, music, and text incorporated into the Software Product), and any copies of the Software Product are owned by ORBX or its third party suppliers;

(b) you have no intellectual property rights in or to the Software Product other than the right to use the Software Product in accordance with the terms of this CULA; and

(c) all title and intellectual property rights in and to additional third party libraries and content accessed through use of the Software Product is the property of the respective content owner and this CULA grants you no rights to use such content.

4. WARRANTY

4.1 We warrant that:

(a) the Software will, when properly used on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation;

(b) the Documentation correctly describes the operation of the Software in all material respects.

4.2 The warranty in 4.1 does not apply if:

(a) the defect or fault in the Software results from you having altered or modified a Software Product; or

(b) if the defect or fault in the Software results from you having used a Software Product in breach of the terms of this CULA.

5. TERMINATION

We may terminate this CULA immediately by written notice to you if you commit a material or persistent breach of this CULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so. Upon termination for any reason:

(a) all rights granted to you under this CULA shall cease;

(b) you must cease all activities authorised by this CULA; and

(c) you must immediately delete or remove the Software Product from all computer equipment in your possession and each SSD and immediately destroy or return to us (at our option) all copies of the Software Product then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.

6. DISCLAIMER

6.1 The Software Product is provided “as is,” and we do not guarantee the functionality of the Software Product or a particular result from the use of the Software Product.

6.2 Neither ORBX, its members, managers, officers, employees, agents, nor its suppliers shall be liable to you for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, delays or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.

6.3 the extent permitted by law, ORBX expressly disclaims any responsibility for the loss or damage, including personal injury or death, resulting from the use of the Software Product.

6.4 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ORBX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ORBX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.5 In no event does ORBX authorise you to use the Software Product in applications or systems where the Software Product's failure to perform can reasonably be expected to result in a physical injury, or in loss or endangerment of life. Any such use by you is entirely at your own risk, and you agree to hold ORBX harmless from any claims or losses relating to such unauthorised use.

6.6 The above disclaimers do not exclude or limit in any way our liability to you where it would be unlawful to do so.

6.7 You acknowledge that the Software Product has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

7. INDEMNITY

You agree to defend, indemnify, and hold us, our members, managers, officers, employees and agents harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this CULA or your uploading of, access to, or use or misuse of the Software Product.

8. COMMUNICATIONS BETWEEN US

8.1 If you wish to contact us in writing, or if any condition in this CULA requires you to give us notice in writing, you can send this to us by email to Orbx Simulation Systems at info@orbxsystems.com. We will confirm receipt of this by contacting you in writing, normally by email.

8.2 If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide or confirm to us.

9. HOW WE MAY USE YOUR PERSONAL INFORMATION

We will only use your personal information as set out in our privacy policy, a copy of which is contained on our website.

10. OTHER IMPORTANT TERMS

10.1 We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under this CULA.

10.2 You may only transfer your rights or your obligations under this CULA to another person if we agree in writing.

10.3 Each of the paragraphs of this CULA operate separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

10.4 If we do not insist immediately that you do anything you are required to do under this CULA, or if we delay in taking steps against you in respect of your breaking this CULA, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

10.5 This CULA constitutes the entire statement of the agreement between you and us on the subject matter, and merges and supersedes all other or prior understandings, purchase orders, agreements and arrangements. This CULA shall be governed by the laws of Victoria, Australia.

Microsoft Flight Simulator X is a © copyrighted trademark of Microsoft Corporation.
Prepar3D is a ® registered trademark of Lockheed Martin Corporation.
X-Plane is a ® registered trademark of Laminar Research.
Aerofly FS is a ® registered trademark of IPACS GmbH.
FTX and Full Terrain Experience are brands of Orbx Simulation Systems Pty. Ltd.