PLEASE READ THIS DOCUMENT CAREFULLY. The following are the terms and conditions under which Battlespace Simulations Inc. or it’s successors in title (hereinafter “BSI”) licenses its Software to you (hereinafter the “Licensee”) for commercial use.
1. ACCEPTANCE AND AGREEMENT
PLEASE READ THIS LICENSE AGREEMENT BEFORE USING THE SOFTWARE. BY INSTALLING THE SOFTWARE ON ANY COMPUTER OR CPU YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT.
2. COMMERCIAL USE GRANT
The software is licensed, not sold. BSI grants Licensee a non-exclusive and non-transferable license to use the Software which must retain all of the original proprietary notices. Each separate instance of the Software requires is own paid license. This license does not entitle Licensee to receive from BSI hard- copy documentation, technical support, or telephone assistance (see 7. Software Maintenance Terms for more information). Licensee may not customize the Software beyond the extent permitted via the configuration of the software. Licensee may transfer license to an end user only upon written consent from BSI, with the exception that if the initial Purchase Order identifies a U.S. Department of Defense (“DOD”) contract in furtherance of which you have ordered the Software, this license may be transferred to any other DOD contractor who needs the Software in furtherance of a DOD contract or to the U.S. government agency for which the contract is being performed.
Except as otherwise expressly permitted in this Agreement, or as expressly permitted by applicable law, Licensee may not alter, modify or adapt the Software, including translating, reverse engineering, decompiling, disassembling or creating derivative works of the Software, including translation or localization; redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software. Licensee shall not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. Software documentation may be translated by the Licensee for use by the Licensee.
Without prejudice to any other rights, BSI may terminate this Agreement if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall destroy all copies of the Software held or controlled by Licensee. The consequences of a breach of the License as spelled out in this section captioned “Termination” shall only apply if a final ruling or judgment has been made confirming the breach of the License as a result of a proceeding (including a legal action in the Federal Court of Claims) pursued in accordance with the Contract Disputes Act.
All title, including but not limited to intellectual property and copyrights, in and to the Software and any copies thereof are owned by Battlespace Simulations, Inc. (BSI). You may not remove or alter any copyright notices on the software. By accepting this license agreement, the Licensee does not become the holder of any other intellectual property rights in the Software. Title to and ownership of the intellectual property rights in the Software, all copies thereof, and all documentation related thereto, shall remain at all times with BSI. The Licensee agrees to take all steps which are reasonably necessary to protect BSI’s ownership rights to the Software in the conduct of the Licensee’s licensed commercial activity with the Software, and will not take any action to jeopardize, limit or interfere in any manner with such rights.
6. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
BSI warrants that, for a period of sixty (60) days from the date of shipment to Licensee, the media on which the Software is delivered will be free from defects in material and workmanship that will prevent you from loading the Software on your Computer. Your sole and exclusive remedy with respect to any defective media shall be the right to return such media to BSI, and BSI’s sole liability to you shall be the replacement of any defective media, provided such media are returned to BSI within the warranty period.
Except as set forth above, the Software is provided “AS IS” without any express or implied warranty of any kind including warranties of merchantability, noninfringement of intellectual property, including patents, copyrights or otherwise, or fitness for any particular purpose. BSI does not represent or warrant that the functions contained in the Software will meet the Licensee’s requirements or will operate in the combination selected by the Licensee or that the operation of the Software will be error free.
In no event shall the Licensor be liable for any incidental, indirect, special or consequential damages whatsoever (including, but not limited to, lost profits or interruption of business) with respect to, arising out of, in connection with, or related to this Agreement. BSI’s liability arising out of contract, negligence, strict liability in tort or any other claim at law shall not exceed any fees paid by the Licensee for the Software.
Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, or allow the exclusion of implied warranties; in such cases the limitation and exclusion above may not apply to the Licensee.
7. SOFTWARE MAINTENANCE TERMS
This software includes one year of pre-paid software maintenance. At the conclusion of this one year period, BSI may offer the Licensee the option to renew software maintenance in one-year increments. Active maintenance entitles the Licensee to unlimited e-mail technical support and the right to download, install and use any new version of the Software that is published within the period of active maintenance. Active maintenance also entitles the Licensee to submit feature requests, which BSI may, at its sole discretion, choose to implement at no additional charge. In the event that BSI indicates a feature request will not be implemented at no additional charge, the feature request itself will not be treated as a contract offer without an explicit, separate purchase order from the Licensee.
8. U.S. GOVERNMENT USERS
If the Licensed Software is licensed or transferred to an entity of the United States Government or on behalf of such an entity, the following provisions apply:
8.1 U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
For units of the Department of Defense (“DoD”): The Software is “commercial computer software” as defined at DFARS 252.227-7014 and the rights of the Government are as specified at DFARS 227.7202-3. For civilian agencies: The Software was developed at private expense and is “restricted computer software” submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights clause at 52.227-19 of the Federal Acquisition Regulations (“FAR”) and its successors.
The Software may only be sold or transferred to an agency or instrumentality of the United States Government under prime contracts that effectively incorporate restrictions on government use, reproduction, or disclosure no less protective of BSI than the foregoing and any other attempted sale is null and void. Use, reproduction, or disclosure of the Software by the government or its agents or contractors is subject to the restrictions set forth herein and/or therein, as applicable. Contractor and manufacturer is Battlespace Simulations, Inc., 111 W. San Antonio St. Suite 210-5 New Braunfels, TX 78130.
8.2 SECTION 4 ” TERMINATION ” is amended to include the following
The consequences of a breach of the License as spelled out in this section captioned “Termination” shall only apply if a final ruling or judgment has been made confirming the breach of the License as a result of a proceeding (including a legal action in the Federal Court of Claims) pursued in accordance with the Contract Disputes Act.
- FAR 12.403(c)(2) is incorporated by reference into Section
- If any term or condition set forth in this Agreement: (a) allows for the automatic termination of the
U.S. Federal Government’s license rights or maintenance services; (b) allows for the automatic renewal of services and/or fees; and/or (c) requires the governing law to be anything other than Federal law, then such term and condition shall not apply to the U.S. Federal Government, but shall continue to apply to prime contractors and subcontractors of the U.S. Federal Government. Moreover, to the extent any term or condition set forth in this Agreement is contrary to U.S. Federal procurement law, then such term and condition shall not apply with respect to the U.S. Federal Government, but shall continue to apply to prime contractors and subcontractors of the U.S. Federal Government.
9. EXPORT RESTRICTIONS
BSI Software listed below is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries:
- Modern Air Combat Environment (MACE) – all versions
This Software, accompanying documentation and technical data may not be exported or re-exported, either directly or indirectly, to the U.S. embargoed destinations or entities of Cuba, Iran, Libya, North Korea, Sudan and Syria or to persons/entities on the Denied Persons List, Unverified List, Entity List, Specially Designated Nationals List and the Debarred List, without prior written authorization from the appropriate U.S. government departments (Commerce, State Department, Treasury). Licensee agrees that it shall not directly or indirectly export the Software in contravention of any export law.
10. CONTROLLING LAW
This Agreement shall be governed and construed in accordance with the laws of the United States of America. If State law, rather than Federal law, shall govern any issue relative to this License, that State shall be the State of Texas. If any provision of this Agreement or the application thereof shall be invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and each remaining term or provision of this Agreement shall be valid and be enforced by the fullest extent of the law.
This Agreement constitutes the entire agreement between the parties and supersedes all prior oral or written agreements, proposals or communications between the parties relating to the Software and documentation. Failure by BSI to exercise its rights under this Agreement, or to require strict performance of any part of this Agreement, shall not constitute a waiver of those rights or provisions, and they remain in full force and effect. If any term or provision of this Agreement or the application thereof shall be invalid or unenforceable, such term or provision shall be severed from this Agreement and the remainder of this Agreement shall be unaffected thereby and each remaining term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.