Commercial User 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:

• Orbx Scenery Visual Terrain, Airport, Aircraft or Utility software (Software);
• the Orbx libraries associated with the Software (Orbxlibs);
• Orbx Central; and
• associated printed materials, media and online or electronic documentation (Documentation),

(together the Product). The Product is sold as a single user licence and we licence use of the Product to you on the basis of this CULA and remain the owners of the Product and its intellectual property at all times. By accessing or otherwise using the 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 Product.

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 Product on the terms of this CULA.

1.2 You may install, access, and run a single copy of the Product on a single simulator device for commercial and business use, but not for profit.

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

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

1.5 You may use the Product for learning, training, and other business uses, including public use, but you cannot resell, modify or otherwise alter the Product, or re-licence it to a third party, unless agreed by us in writing.

2. RESTRICTIONS

2.1 This 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 any system which uses the Software and we will not be responsible for any loss or damage arising from the use of a 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 Product, except where such copying is incidental to normal use of the Product or where it is necessary for the purpose of back-up or operational security;

(b) to only use the Product for your business and commercial use, and not derive any profits from it;

(c) not to rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the Product nor permit the 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 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 other 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 Product nor attempt to do any such thing; and

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

You acknowledge that:

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

(b) you have no intellectual property rights in or to the Product other than the right to use the 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 Product is the property of the respective content owner and this CULA grants you no rights to use such content.

4.1 We warrant that:

(a) the Product 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 Product; or

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

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

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

6.2 Neither Orbx, its staff, 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 To 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 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 Product in applications or systems where the 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 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.

You agree to defend, indemnify, and hold us, our staff, 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 Product.

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 [email protected]. We will confirm receipt of this by contacting you 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.

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

10.1 We may transfer our rights and obligations under these terms to another organisation. We will advise through our website if this happens and we will endeavour to 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.