PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE APP, YOU SIGNIFY YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT AND YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE FOREGOING AND SUCH TERMS, CONDITIONS AND/OR NOTICES, YOU DO NOT HAVE THE RIGHT TO INSTALL OR USE THE APP.
Flight School reserves the right to revise any portion of this Agreement in its sole discretion at any time and without prior notice to You by updating this posting, such changes to be effective prospectively. Thus, You should check this page periodically for changes. If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of the App. Your continued use of the App after a change has been posted constitutes Your acceptance of the change thereafter.
If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law to the greatest extent possible and the remainder of the provisions will remain in full force and effect. Any cause of action You may have with respect to the App must be commenced within one (1) year after the claim or cause of action arises, otherwise such claim or cause of action brought after such one-year period shall be barred.
2. Limited License
Subject to the terms and conditions of this Agreement, Flight School hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the App for lawful purposes, and only on a virtual reality (“VR”)-capable device that You own or control (and, in the case of an Apple device, only on an iPad or other Apple device that You own or control as permitted by Apple’s App Store Terms of Service).
3. License Restrictions
Except as expressly set forth in this Agreement, You shall not, directly or indirectly, in whole or in part: (a) copy the App, except for downloading the App from an authorized distribution channel, such as the Oculus website, Nintendo Game Store, Apple App Store or Google Play, onto Your VR-capable device as authorized under the license granted herein; (b) access or use any Flight School API associated with the App in any manner other than through the App itself; (c) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the App (or any component thereof, including without limitation associated imagery and technology); (d) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App without Flight School’s prior written consent; (e) modify or create derivative works based upon the App (or any component thereof, including without limitation associated imagery and technology); (f) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; or (g) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the App, or adversely affect Flight School’s right, title or interest in or to the App. You acknowledge that the software code underlying the App is Flight School’s confidential and proprietary information.
The term of this Agreement and the license granted herein continues until this Agreement is terminated by either party. You may terminate this Agreement at any time by discontinuing use of and deleting all copies of the App. This Agreement terminates automatically if You fail to comply with any of the terms of this Agreement. Upon any termination of this Agreement, You must cease use of and destroy all copies of the App.
5. Ownership; Feedback
At all times, Flight School and its licensors will retain ownership of all proprietary rights in and to the App, and any copies thereof, including any copyright, patent, trade secret, trademark or other intellectual property rights therein, look and feel thereof, and any derivatives of the foregoing. Flight School and its licensors reserve all rights that are not specifically granted to You hereunder. Flight School may solicit, or You may elect to volunteer, feedback, ideas or other suggestions regarding the App (“Feedback”). You will not be obligated to provide Feedback to Flight School. However, if You elect to provide any Feedback, You hereby assign to Flight School, all right, title and interest (including, without limitation, all intellectual property rights including patent rights, copyrights and trade secrets) in such Feedback. Without additional consideration, You agree to perform all acts reasonably necessary for Flight School to perfect and enforce such rights.
6. App Warranty Disclaimer
THE APP IS PROVIDED “AS IS.” FLIGHT SCHOOL MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS LICENSORS, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FLIGHT SCHOOL MAKES NO WARRANTY THAT THE APP WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE APP WILL MEET YOUR REQUIREMENTS. Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to You. In the event You downloaded the App through the Apple App Store and the App fails to conform to any warranty required under applicable law, You may notify Apple, and Apple will refund the purchase price for the App to You; provided, however, that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty required under applicable law will be Flight School’s sole responsibility.
7. Epic – Unreal Engine Disclaimers and Limitation of Liability
The App includes the Unreal® Engine code and other code, materials, and information (the “Epic Materials”) from Epic Games, Inc. (“Epic”). All Epic Materials are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. Flight School, Epic, and Epic’s affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the Epic Materials, including without limitation all express, implied, and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not Epic knows or has reason to know of any such purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, Flight School, Epic, and Epic’s affiliates make no warranty that (1) any of the Epic Materials will operate properly, including as integrated in the App, (2) that the Epic Materials will meet your requirements, (3) that the operation of the Epic Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the Epic Materials can or will be corrected, (5) that the Epic Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer has approved or will approve this App, or will not revoke approval of this App for any or no reason. Any warranty against infringement that may be provided in Section 2-312 of the Uniform Commercial Code or in any other comparable statute is expressly disclaimed by Flight School and Epic. Flight School, Epic, and Epic’s affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the Epic Materials. This paragraph will apply to the maximum extent permitted by applicable law.
9. Technical Support
Flight School may, but is not obligated to, provide maintenance or other technical support for the App. Flight School may make changes to the App at any time without notice. Nothing in this Agreement obligates Flight School to support or provide You with updates or error corrections to the App. To the extent that any technical support for an App downloaded from the Apple App Store is required by applicable law, Flight School, not Apple, shall be obligated to furnish any such support.
10. Third-Party Claims; Product Claims
Flight School shall not be obligated to indemnify, defend or hold You harmless with respect to any third-party claims arising out or relating to the App, including without limitation any claims for intellectual property infringement. Nothing in this Agreement shall be deemed an admission that any such claims may arise. To the extent Flight School is required by applicable law to provide indemnification relating to an App downloaded from the Apple App Store, Flight School, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such claim. Flight School, not Apple, is responsible for addressing any of the following claims by You relating to an App downloaded from the Apple App Store: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that You may have any such claims.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER FLIGHT SCHOOL, EPIC, THEIR LICENSORS, NOR THEIR AFFILIATES, NOR ANY OF FLIGHT SCHOOL’S OR EPIC’S SERVICE PROVIDERS, SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE APP, THE EPIC MATERIALS OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL FLIGHT SCHOOL, EPIC, THEIR LICENSORS, NOR THEIR AFFILIATES, NOR ANY OF FLIGHT SCHOOL’S OR EPIC’S SERVICE PROVIDERS BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE APP, OR THE EPIC MATERIALS, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE EPIC MATERIALS, EVEN IN THE EVENT OF FLIGHT SCHOOL’S, EPIC’S, OR EPIC’S AFFILIATES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF FLIGHT SCHOOL, EPIC OR EPIC’S AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF FLIGHT SCHOOL, EPIC, THEIR LICENSORS, THEIR AFFILIATES, NOR ANY OF FLIGHT SCHOOL’S OR EPIC’S SERVICE PROVIDERS UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID TO FLIGHT SCHOOL BY YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING YOUR CLAIM(S), OR $100. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Flight School, Epic, their licensors, their affiliates, and any of Flight School’s or Epic’s service providers shall be limited to the full extent permitted by law.
12. Health and Safety Warnings
TO REDUCE THE RISK OF PERSONAL INJURY, DISCOMFORT OR PROPERTY DAMAGE, YOU SHALL ENSURE THAT, BEFORE USING THE APP, ALL USERS OF THE APP READ CAREFULLY ALL HEALTH AND SAFETY WARNINGS PROVIDED TO YOU BY THE MANUFACTURER OF YOUR VR-CAPABLE DEVICE AND/OR VR HEADSET.
13. Notice to United States Government End Users
If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are licensing the App for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge that by installing and using the App, the App qualifies as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the App and associated documentation, and shall supersede any conflicting terms or conditions.
14. Compliance with Law
You represent and warrant that: (a) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties. You may not export, re-export, import, or transfer the App in violation of any applicable export laws or regulations, and You may not assist or facilitate others in doing any of the foregoing. You acknowledge that it is Your responsibility to comply with any and all applicable export and import laws.
15. Governing Law; Venue
This Agreement shall be interpreted in accordance with the laws of the state of Texas without reference to its conflict of law provisions. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted exclusively before the state and federal courts in and for Dallas County, Texas, and the parties specifically consent to Dallas County, Texas, as the exclusive venue for any such proceeding. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without Flight School’s prior written consent, and any such attempt is void. This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto. The parties acknowledge and agree that a material breach of this Agreement adversely affecting Flight School’s proprietary rights would cause irreparable harm to Flight School for which a remedy at law would be inadequate, and that Flight School shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law. This Agreement is the complete agreement between Flight School and You concerning Your use of the App, and supersedes any and all prior agreements and representations between Flight School and You related to the same subject matter. Unless otherwise specified herein, all notices, invoices and other communications required or permitted to be given or made hereunder shall be in writing and: (a) if to Flight School, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to Project Flight School, LLC, 301 North Crowdus Street, Dallas, Texas 75226, Attn: Legal Affairs; or (b) if to You, by in-App notification or email. No amendment of any provision of this Agreement shall be effective unless made in accordance with preliminary paragraphs hereof or set forth in a writing signed by a representative of Flight School and You, and then only to the extent specifically set forth therein.
If You have any questions regarding the App or this Agreement, please contact us at:
Project Flight School, LLC
Attn: Legal Affairs
301 N. Crowdus St.
Dallas, Texas 75226