End User License Agreement
This copy of the POSCON Software Suite, which includes the POSCON Radar Client, FSX/P3D/FS2020 Pilot Client, X-Plane 11 Pilot Client, POSCON Launcher Client, and all related online access to features and sub-portions thereof (“the Software Product”) and accompanying imagery and documentation is licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Furthermore, this software is provided to you, the End User, at no cost, subject to the terms and conditions of this Agreement and the Positive Control LLC User Agreement. The Positive Control LLC User Agreement can be found at https://forums.poscon.net/policies and is incorporated herein by reference. Positive Control LLC or its subsidiaries, affiliates, and suppliers (collectively “POSCON”) own intellectual property rights in the Software Product. This Licensee’s (“you” or “your”) license to download, use, copy, or change the Software Product is subject to these rights and to all terms and conditions of this End User License Agreement (“Agreement”).
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SELECTING THE “ACCEPT” OPTION AND DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT. YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE YOU WILL BE ALLOWED TO DOWNLOAD THE SOFTWARE PRODUCT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT “DECLINE” AND YOU MUST NOT INSTALL, USE, OR COPY THE SOFTWARE PRODUCT.
II. LICENSE GRANT
This Agreement entitles you to install and use one copy of the Software Product. In addition, you may make one archival copy of the Software Product. The archival copy must be on a storage medium other than a hard drive, and may only be used for the reinstallation of the Software Product. This Agreement does not permit the installation or use of multiple copies of the Software Product, or the installation of the Software Product on more than one computer at any given time, on a system that allows shared use of applications, on a multi-user network, or on any configuration or system of computers that allows multiple users. Multiple copy use or installation is only allowed if you obtain an appropriate licensing agreement for each user and each copy of the Software Product. You may install the Software Product on a single user network, or on any configuration or system of computers that belongs only to a single user.
III. RESTRICTIONS ON TRANSFER
Without first obtaining the express written consent of POSCON, you may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Software Product.
IV. RESTRICTIONS ON USE
You may not decompile, “reverse-engineer”, disassemble, or otherwise attempt to derive the source code for the Software Product. Additionally, you may not redistribute the Software Product, or redistribute or modify the source code for the Software Product. You may not use the database portion of the Software Product in connection with any software other than the Software Product. You may not rent, lease, or lend the Software Product. This Agreement does not grant you any rights in connection with any trademarks or service marks of POSCON. The Software Product is provided to you as a single product, and its component parts may not be separated for use by more than one user.
You may not use any of the Software Product for commercial purposes, including but not limited to the provision of flight training, the sale of services derived either in whole or in part by the use of the Software Product, or for commercial entertainment purposes. You also may not use the Software Product in conjunction with the sale of any commercial merchandise whatsoever. POSCON reserves the right to license the Software Product to third parties for commercial purposes. You also may not use the Software Product to connect to or interact with any other network or service that is not affiliated with or not approved by POSCON.
V. RESTRICTIONS ON ALTERATION
You may not modify the Software Product or create any derivative work of the Software Product or its accompanying documentation. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the Software Product, unless said function is native to the Software Product and is accessible through the Software Products integrated User Interface (“UI”). You may not reproduce the database portion or create any tables or reports relating to the database portion.
VI. RESTRICTIONS ON COPYING
You may not copy any part of the Software Product except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on storage medium. You may make one archival copy which must be stored on a medium other than a computer hard drive.
VII. DISCLAIMER OR WARRANTIES AND LIMITATION OF LIABILITY
The Software Product, all accompanying files, data and materials, are distributed "AS IS" and with no warranties of any kind, whether express or implied. You must assume all risk of using the Software Product. This disclaimer of warranty constitutes an essential part of the Agreement.
UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY POSCON, POSCON MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE SOFTWARE PRODUCT.
POSCON MAKES NO WARRANTY THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR OPERATE UNDER YOUR SPECIFIC CONDITIONS OF USE. POSCON MAKES NO WARRANTY THAT OPERATION OF THE SOFTWARE PRODUCT WILL BE SECURE, ERROR FREE, OR FREE FROM INTERRUPTION. YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. POSCON WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPNOSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL POSCON, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFIT OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF POSCON OR ANY OTHER PARTY, EVEN IF POSCON IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS POSCON’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
VIII. LIMITATION OF REMEDIES AND DAMAGES
Your remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the Software Product. Selection of whether to correct or replace shall be solely at the discretion of POSCON. POSCON reserves the right to substitute a functionally equivalent copy of the Software Product as a replacement. If POSCON is unable to provide a replacement or substitute Software Product or corrections to the Software Product, your sole alternate remedy shall be to uninstall and remove any copy of the Software Product licensed to you.
Any claim must be made within one year of installation of the Software Product. All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, computer viruses, installations on unauthorized devices, decompiling, “reverse-engineering,” or any damage or act determined by POSCON to have been caused by you. All limited warranties on the Software Product are granted only to you and are non-transferable. You agree to indemnify and hold POSCON harmless from all claims, judgments, liabilities, expenses, or costs arising from your breach of this Agreement and/or acts or omissions.
IX. CONSENT TO COLLECTION AND USE OF INFORMATION
You hereby acknowledge that the Software Product accesses and collects both non-personally identifiable information and personally identifiable information about you and your computer system as well as configures your computer system in order to (a) properly optimize your computer system for use with the Software Product, (b) deliver content through the Software Product, (c) improve POSCON products and services, and (d) deliver marketing communications. Information collected by the Software Product includes, but is not limited to, your computer system’s (i) hardware configuration and ID, (ii) operating system and driver configuration, (iii) performance, and usage data, and (iv) usage metrics of the Software Product.
To the extent that you use the Software Product, you hereby consent to all of the foregoing, and represent and warrant that you have the right to grant such consent.
In addition, you agree that you are solely responsible for maintaining appropriate data backups and system restore points for your computer system, and that POSCON will have no responsibility for any damage or loss to your computer system (including loss of data or access) arising from or relating to (a) any changes to the configuration, application settings, environment variables, registry, drivers, BIOS, or other attributes of your computer system (or any part of your computer system) initiated through the Software Product, if any; or (b) installation of any software or third party software patches initiated through the Software Product, if any. The Software Product may contain links to websites and services. POSCON encourages you to review the privacy statements on those sites and services that you choose to visit so that you can understand how they may collect, use, and share your personally identifiable information. POSCON is not responsible for the privacy statements or practices of sites and services controlled by other companies or organizations.
X. TERM AND TERMINATION
Each license provided hereunder has a duration starting from the date of download and ending at the end of use of the Software Product, subject to earlier termination as provided in this section, below. This Agreement remains in effect for as long as you continue to use the Software Product, or if this Agreement is terminated by either party.
Without prejudice to any other rights, POSCON may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the Software Product and all of its component parts.
You may terminate the Agreement at any time by destroying all copies of the Software Product in your possession or control. This Agreement will automatically terminate, with or without notice from POSCON, if your fail to comply with any of the terms and conditions hereof. In such event, you must, at POSCON’s option, either destroy or return all copies of the Software Product and all of its component parts in your possession or control. If you commence or participate in any legal proceeding against POSCON, then POSCON may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this Agreement during the pendency of such legal proceedings.
XI. INTELLECTUAL PROPERTY
All title and intellectual property rights in and to the Software Product (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Software Product), the accompanying printed materials, and any copies of the Software Product are owned by POSCON, its suppliers, its partners, or third parties who have licensed portions of the Software Product to POSCON. All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted are reserved by POSCON.
XII. RECORDED CONTENT
The Software Product does not enable you to record all of your electronic activity. However, you may choose to upload or broadcast your use of the Software Product on POSCON. Such uploads or broadcasts include but are not limited to gameplay (“Content Videos”), or uploads or broadcasts of the Content Videos on services such as Twitch.tv and YouTube. If you choose to upload or broadcast Content Videos that feature or otherwise include the Software Product, you are solely responsible for your Content Videos and assume all risk arising from your use of third-party websites, services, and networks. You represent and warrant that you are the creator and owner of any Content Videos or otherwise have sufficient rights and authority to post or publish them. By using, featuring, and/or including the Software Product in any upload, publication, or broadcast of any Content Videos on third party websites, services, or networks, you agree to indemnify and hold harmless POSCON and its officers, directors, employees, and agents from and against any claims, disputes, demands, liabilities, damages, losses, costs, and expenses (“Claims”) arising out of or in any way connected with your Content Videos, including but not limited to Claims that your Content Videos (a) infringe, violate, or misappropriate any third party right, including copyright, trademark, patent, trade secret, moral right, privacy or publicity rights, or any other intellectual property or proprietary right; or (b) slander, defame, or libel any other person.
XIII. GOVERNING LAW, JURISDICTION, AND COSTS
This Agreement is governed by the laws of Delaware, without regard to Delaware’s conflict or choice of law provisions. Each party shall be responsible for its own costs and Attorneys Fees regardless of outcome.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
Updated: January 16th, 2020
Changes: None; initial release.