CAE e-Learning Services Online Agreement
1.
Scope of
the Agreement
This Agreement (the "Agreement") is a legal
agreement between you (referred to herein as "You" or the "User") and CAE Inc.
("CAE") having a place of business at 8585 Côte de Liesse Road, Saint-Laurent,
Province of Quebec, Canada, H4T 1G6. CAE is the rights-holder and operator of
the www.cae.com, www.caelearning.com, www.simfinity.com and lms.simfinity.com
web site (the "Web Site"). This Agreement states the terms and conditions under
which the Customer's Users (as such term is defined below) may access and use
the Web Site and all written and other materials displayed or made available
through the Web Site, including, without limitation, articles, text,
photographs, images, illustrations, audio clips, video clips, computer software
including the Product (as such term is defined below) and code (collectively,
the "Content"). For the purpose of this Agreement, the word
"Product" means all products available on the CAE Web Site and includes but is
not limited to any and all CAE Simfinity™ products and courseware, available on
the Web Site, for any aircraft, including any related software, aircraft data,
information, publications or documentation made available through the Web Site
by CAE under this Agreement. Furthermore, the word "Simulation Product" shall
mean all CAE products available on the Web Site that operates through the use
of server based simulation. Simulation Product includes, but is not limited
to, Virtual Simulator, Virtual System Trainer and Flight Management System Trainer
respectively VSIM, VST and FMST.
CAE has provided You a username and password in order
to grant You a personal, limited, non-transferable, license to access the Web
Site, Product and Content.
2.
Title
The Product
and Content is licensed, not sold to You, and shall only be used by You through
access to the Web Site in accordance with the terms and conditions of this
Agreement. Title to and full ownership of any trade secrets, copyrights,
trademarks and other intellectual property rights related to the Product and
Content will remain with CAE and/or its suppliers, as applicable. You
acknowledge that the Product and the Content are CAE proprietary, and You shall
respect CAE's proprietary rights therein.
3.
License
CAE grants to You a personal, non-exclusive,
non-transferable limited license to access the Web site, Content and Product
for use solely for training purposes (the "Purpose"). No other rights to the
Web Site, Content and Product are granted.
4.
User's
Obligations
4.1.
You shall be solely responsible
for complying with all import and export laws including government approvals or
permits that might be necessary to use the Product and/or Content, and You
shall obtain any export, import or use permits as may be required by the
relevant authorities.
4.2. You agree to keep secret, and shall not share with others, disclose
or allow to be known, your username and password.
4.3. You shall use your own PC equipment which shall meet at the minimum
the requirements set forth on the Web Site under the Test Your Settings link , in
order to access the Web Site, the Content and the Product.
4.4. Any comments, questions, suggestions, corrections, feedback or other
communications (the "Feedback") provided by You to CAE relating to the Product,
Content and/or Web Site shall be deemed non-confidential, and You shall not
claim any intellectual property rights or other proprietary rights in such
Feedback. CAE may at its sole discretion freely use the ideas, concepts,
know-how and technical information contained in the Feedback, and CAE may also
copy, reproduce, disclose, exhibit, display, transform, adapt, create
derivative works and /or distribute such Feedback or any portion thereof to
others without any obligations or restrictions whatsoever based on intellectual
property rights or other proprietary rights. For the avoidance of doubt, it is
agreed that CAE may include the Feedback or portions thereof in the design,
development and commercialization of the Product, Content and/or Web Site, or
other CAE products or materials.
5.
Use of the
Product and/or Content
Use of the
Product and/or Content is restricted to the Purpose. You shall NOT:
5.1. copy the Product and/or Content or any part thereof;
5.2. modify the Product and/or Content in any way, or reverse engineer,
translate, screen scratch, decompile or disassemble the Product nor otherwise
attempt to create or derive the source code related thereto;
5.3. rent, lease, loan, resell or use the Product and/or Content
otherwise than as expressly authorized in this Agreement;
5.4. network the Product, or otherwise use it on more than one (1)
computer processor at any one time;
5.5. use the Product without a username or password, or attempt to
develop any means or technology which would enable You or any third party to
bypass the use of the username or password to operate the Product;
5.6. use the Product and/or Content in a way that could damage, disable,
overburden, or impair any CAE server, or the network(s) connected to any CAE
server, or interfere with any other party's use and enjoyment of any Product(s)
and/or Content;
5.7. incorporate the Product and/or Content, in whole or in part, in any
product or service that You would make available to a third party, on a
commercial basis or not;
5.8. remove or alter any proprietary notices indicating that the Product
and/or Content is subject to CAE's or its licensors' intellectual property
rights; and
5.9. develop or otherwise produce or reproduce adaptations, enhancements,
modifications, derivative works or improvements of the Product and/or Content
or works containing functionality similar to the Product and/or Content in
whole or in part.
6.
Non-Disclosure
6.1. For the purposes of this Agreement, "Confidential Information" means any CAE data,
specifications, computer software and programs, documents, technology,
know-how, processes, methodologies, samples, and proprietary information and
trade secrets of CAE and its suppliers that are marked as confidential, whether
or not covered by intellectual property rights relating to the Web Site,
Product and/or Content. You agree (i) to keep all Confidential Information
obtained hereunder in strict confidence; (ii) not to disclose directly or
indirectly to any third party, nor to use, copy, evaluate or incorporate, any
of the Confidential Information for any purpose other than that for which it is
disclosed under this Agreement;
6.2. The obligations of confidentiality, use and non-disclosure referred
to herein shall not apply to information which: (i) is or becomes publicly
available; (ii) was already in
the rightful possession of You prior to its receipt from CAE; (iii) is
independently developed by You, provided it is not, in whole or in part,
related to the Product and/or Content; (iv) is obtained by You in good faith
and on a non-confidential basis and without a use restriction from a third
party who lawfully obtained and disclosed such information; (v) is required to be disclosed by law. However,
Confidential Information does not come within the foregoing exceptions merely
because features of it may be found separately or within a general disclosure
in the public domain.
CAE®, CAE & Design®, Simfinity™, and CAE Simfinity™ are
trademarks of CAE Inc. Other names, words, titles, phrases, logos, designs,
graphics, icons and trademarks displayed on the Web site may constitute
registered or unregistered trademarks of CAE Inc. or third parties. While certain
trademarks of third parties may be used by CAE under license, the display of
third party trademarks on the Web site should not be taken to imply any
relationship or license between CAE and the owner of the trademark or to imply
that CAE endorses the wares, services or business of the owner of the said
trademark.
7.1.
The Web Site may contain links to
third-party web sites. These links are provided solely as a convenience to You
and do not represent an endorsement by CAE of the contents of such third-party
web sites. CAE is not responsible for the content of any third-party web site,
nor does it make any representation or warranty of any kind regarding any
third-party web site including, without limitation, (i) any representation or
warranty regarding the legality, accuracy, reliability, completeness,
timeliness or suitability of any content on such third-party web sites, (ii)
any representation or warranty regarding the merchantability and fitness for a
particular purpose of any material, content, software, goods, or services
located at or made available through such third-party web sites, or (iii) any
representation or warranty that the operation of such third-party web sites
will be uninterrupted or error free, that defects or errors in such third-party
web sites will be corrected, or that such third-party web sites will be free
from viruses or other harmful components.
7.2.
While CAE encourages links to the
Web Site, it does not wish to be linked to or from any third-party web site
which contains, posts or transmits any unlawful information of any kind,
including, without limitation, any content constituting or encouraging conduct
that would constitute a criminal offense, give rise to civil liability or
otherwise violate any local, state, provincial, national or international law,
regulation which may be damaging or detrimental to the activities, operations,
credibility or integrity of CAE or which contains, posts or transmits any
information, software or other material which violates or infringes upon the rights
of others, including material which is an invasion of privacy or publicity
rights, or which is protected by copyright, trademark or other proprietary
rights. CAE reserves the right to prohibit or refuse to accept any link to the
Web site, including, without limitation, any link which contains or makes
available any content or information of the foregoing nature, at any time. You
agree to remove any link to the Web Site immediately upon the request of CAE.
8. Security
Any information sent or received
over the internet is generally unsecure. CAE cannot guarantee the security of
any communication to or from the Web Site.
9.
Warranty
9.1.
CAE warrants that:
(a)
it has the right and authority to
license Product and Content; and
(b)
to the best of CAE's knowledge,
the rights granted in this Agreement do not infringe the intellectual property
rights of any third party in Canada.
(c)
Its on-line services availability
is 24hr/day 7days/week excluding scheduled monthly maintenance downtime of
approximately 4 hours or unscheduled urgent/critical maintenance save and
except if the services cannot be provided due to Internet reliability, Customer
Internet Connection or other connectivity issues to the Internet.
10. The Product and the Web Site are made available to You ON AN "AS IS" BASIS.
For any breach of the warranty contained in
Section 9.1 above, Your
exclusive remedy and CAE's entire liability shall be limited to those remedies
set forth in Section 11 (Limitation of Liability). The warranties above
mentioned are exclusive and in lieu of all other warranties. To
the fullest extent permitted by applicable law, You acknowledge that CAE
provides no warranty nor any indemnity to You hereunder, and CAE also excludes:
(a) all indemnities arising in law or in equity in respect of the
Web Site, Product and/or Content;
(a) any other warranty of non-infringement, merchantability,
fitness for a particular purpose, or of latent defects arising in law or
otherwise with respect to the Product and/or Content. CAE makes no warranties
for any services provided hereunder or as to the adequacy of the Product and/or
Content nor to the suitability of the same for use by Customer. No written or
oral information or advice given to Customer and/or Users by CAE or its
directors, officers, employees or agents shall create a representation or
warranty of any type. CAE does not warrant that a) the operation of the Product will
be uninterrupted or error-free, or b) all Product errors will be corrected, or
c) the results or availability of any services. notwithstanding, CAE agrees to diligently verify errors raised
by Customer and provided it has enough information from customer to recreate
the error, it will correct, at its own discretion, when appropriate;
(b) Any warranties related to the Internet reliability, Customer
Internet connection or any other connectivity issues to the Internet
11. Limitation of Liability
11.1. CAE shall not be responsible for your competency or
for the exercise of your skills by such person after completion of any courses
using the Product. CAE does not guarantee that any person receiving training
from the Product delivered pursuant to this Agreement will achieve the
necessary proficiency to qualify for any license, certificates or ratings
issued by any regulatory agency or government authority
11.2. CAE shall not be liable under any circumstances for,
and You shall indemnify and hold CAE harmless from, any direct, indirect,
special, consequential, incidental, punitive or exemplary damages whether
immediate, non-immediate, foreseeable or unforeseeable or of whatsoever kind or
nature whatsoever, even if CAE had been advised, knew or should have known of
the possibility thereof, incurred by YOU, Customer or any third party as a
result of, or arising out of, this Agreement and/or use or performance of the
Web Site, Product and/or Content or lack, or loss of use of the Web Site,
Product and/or Content or any other property, of whatsoever nature or kind, for
any reason whatsoever. CAE expressly disclaims all liability with respect to,
and You agree that CAE shall have no liability with respect to, any damages
caused by the use of the Web Site, Product and/or Content or any malfunction of
the Web Site, Product and/or Content. However, should CAE be condemned or
ordered to pay any damages to You by a valid instance, such damages award shall
be limited to direct damages only, and shall not exceed the lesser of (i) the
direct damages actually incurred by You as a result of CAE's breach; or (ii)
one hundred Canadian dollars (100 $ CDN).
You will
indemnify and hold CAE, its officers, agents, servants and employees harmless
from any and all loss, damage, liability, cost or expense ("Loss") which may be
suffered or incurred by You or by CAE or the officers, agents, servants,
employees or representatives of CAE, arising out of (i) the activities carried
out by CAE under this Agreement; and (ii) use by You of the Web Site, Product
and/or Content, unless and only to the extent that such Loss was caused by the
wilful misconduct or gross negligence of CAE, or of CAE's officers, agents,
servants or employees.
13. Infringement
In the event
You learn that there is, or may be, any infringement or unauthorized use of the
Web Site, Product or Content, or disclosure of Confidential Information, You
shall notify CAE in writing of same as soon as practicable. In the event of a
possible infringement or unauthorized use of the Product, CAE retains the
right, in its sole discretion, to commence a legal action or to take any action
in response thereto. You shall provide all available information and assistance
to CAE in such regard. CAE shall not be bound by any settlement or compromise
of any charge of infringement made without its written consent.
14.
Term &
Termination
14.1. This Agreement shall become effective upon acceptance by You, and
shall terminate upon revocation or expiration of your username and password.
14.2. If CAE makes a request via public announcement, press release or
other means to stop using the Web Site, Product or Content, You will comply
immediately with this request.
14.3. Upon termination of this Agreement for whatever reason, the
License(s) granted hereunder shall forthwith be revoked, and Your usernames and
passwords will be deactivated.
14.4.
CAE may revoke your username and
password and/or terminate this Agreement for convenience and without penalty or
reimbursement in whole or in part immediately upon notifying You.
15. Transfer, Assignment or Sub-License
You shall not,
directly or indirectly, assign, transfer or sublicense the use of the Website
and Product, in whole or in part, or any other rights herein granted to You.
16. Irreparable Harm
You
acknowledge and agree with CAE that the breach by You of any of the provisions
of Sections 3 (License),
4 (User's Obligations), 5 (Use
of Product), 6 (Non-Disclosure), and 14 (Transfer, Assignment or Sub-License) hereof would cause serious and irreparable
harm to CAE which may not be adequately compensated for in damages. If You
breaches any of such provisions, You consent to an injunction being issued
against You restraining You from any further breach of such provision, without
derogation from any other remedy which CAE may have in the event of such a
breach.
17. Waiver of Default
The failure of
CAE to enforce at any time any of the provisions of this Agreement, or to
require at any time the performance by You of any of the provisions hereof,
shall not be construed to be a waiver of such provisions, nor in any way affect
the validity of this Agreement or any part thereof, or the right of CAE
thereafter to enforce any such provision.
18. Notices
You may
provide a notice or communication pertaining to this Agreement to CAE, or
communicate Feedback to CAE, via Email at simfinity@cae.com
or at the following address below: CAE Inc., 8585 Côte de Liesse Road,
Saint-Laurent, Quebec, H4T 1G6, CANADA, Attention: e-Learning Product
Management, C/o Product Manager, Delivery Services; Fax : 514-340-5314.
The terms of
this Agreement shall be governed by and interpreted in accordance with the laws
of Ontario, excluding its conflict of law rules, and the laws of Canada
applicable therein.
Each of the
parties irrevocably and unconditionally: a) agrees that any suit, action, or
other legal proceeding arising out of or relating to these terms or any
transaction hereunder must be brought in the courts of Toronto, Ontario; b)
consents to the exclusive jurisdiction of each such court in any such suit,
action, or proceeding; c) waives any objection which it may have to the laying
of the venue of any such suit, action or proceeding in any of such courts; and
d) waives any right that it may have to assert the defense of forum
non-conveniens in any such suit, action or proceeding. Notwithstanding the
foregoing, CAE shall be entitled to obtain injunctive relief before the
competent tribunal of any jurisdiction for a dispute or to protect any of the
matters referred to in Section 17 (Irreparable Harm).
21.
Force
Majeure
Except as
expressly provided otherwise in the Agreement, dates and Verdana by which CAE is
required to perform any obligations under this Agreement shall be postponed
automatically to the extent and for the period of time that CAE is prevented
from meeting such obligations by reason of any cause beyond its reasonable
control,
22. Severability
If any term or
provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any Party.
Upon such
determination that any term or provision is invalid, illegal or incapable of
being enforced, CAE shall modify this Agreement so as to effect the original
intent as closely as possible in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent
possible.
23. Entire Agreement
The Agreement
constitutes the entire agreement between You and CAE and supersedes and cancel
all prior discussions, representations, understandings or agreements whether
verbal or written, between the parties hereto or their agents with respect to
or in connection with the license of the Product and/or Content, save and
except for the provisions of any agreements which by their nature or wording
are intended to remain in full force and effect (e.g. confidentiality or non
disclosure undertakings). This Agreement may be altered, modified or amended
by CAE from time to time, in which case You will be required to renew your
acceptance of the Agreement.