Xinuos, INC.
SOFTWARE LICENSE AGREEMENT
IMPORTANT, READ CAREFULLY ALL TERMS AND
CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) THAT IS INCLUDED WITH
THE PRODUCT OR THAT APPEARS AS PART OF INSTALLATION OF THE SOFTWARE. BY USING
THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AND UNDERSTAND
IT, AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE
TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE IN ANY MANNER AND
IMMEDIATELY RENDER IT UNUSEABLE; AND IN THE CASE OF PACKAGED PRODUCT, RETURN
THE MEDIA PACKAGE AND THE ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS AND
BINDERS OR OTHER CONTAINERS) TO THE PLACE YOU OBTAINED THEM.
There may be provided with the Product
free software that is governed by the GNU Public License or the Artistic
License that the software owner requires to be read and accepted before using.
YOU UNDERSTAND AND AGREE THAT THIS FREE
SOFTWARE IS NOT PART OF THE PRODUCT AND Xinuos MAKES NO WARRANTIES OF ANY KIND
EXPRESSED OR IMPLIED WITH RESPECT TO SUCH FREE SOFTWARE.
Xinuos
OPTIONAL MAINTENANCE
Xinuos
may, at its discretion, notify You of Updates that Xinuos may periodically make
generally available for the Product, but
only if you have completed and returned the Registration Card or
Registered electronically. At your request, Xinuos, directly or, at Xinuos’s
discretion, through its local authorized representative, will provide you with
such Updates, subject to the additional charges that Xinuos or its authorized
representative may establish. Such an Update may be used as described under the
GRANT Provision of this Agreement. This Provision will not be interpreted to
require Xinuos to (i) develop and release Updates or (ii) customize the Updates to
satisfy Your particular requirements. The Updates will not include any new
products that Xinuos decides to make generally available as a separately priced
upgrade or option.
DEFINITIONS
“Agreement”
is the contract between you (“You”) and Xinuos, Inc. (“Xinuos”), relating
to the Product acquired by You. The Agreement comprises (i) this document, (ii)
any additional terms contained in the Documentation, and (iii) any amendments
agreed by both You and Xinuos in writing. Such additional terms may pertain,
without limitation, to the following: term, fees and payment, number of
permitted Users, number of permitted CPUs, registration requirements,
restriction on runtime environment and transfer of Your rights.
“Documentation”
is the documentation, including any Certificate of License and Authenticity
(COLA) and/or any registration card that is supplied for the Software.
“Product”
is a Xinuos offering consisting of any or all of the following: (i) the Software,
(ii) the Documentation, (iii) the Updates and (iv) any copy of the Software,
Documentation or Updates; to the extent made available by Xinuos.
“Software”
is the machine-readable (object) code portion of the Product and any human
readable code contained on the media.
“Update”
is the updates or revisions of the Software or Documentation that You may
receive.
“User”
is a person accessing the Software via a local or remote interactive device,
such as a terminal or workstation, except where such use is exclusive to
routing or gateway functions of the Software.
GRANT
Xinuos grants You and You accept from Xinuos,
the following limited, non-exclusive rights. You are not granted any other
right in the Software. All proprietary rights in or related to the Software are
and will remain the exclusive property of Xinuos or its licensors. The Software,
and Xinuos’s and its licensor’s rights therein, are protected by copyright, under
local law and under international copyright conventions. You further
acknowledge that the Software contains confidential information owned by Xinuos or
its licensors and agree to take reasonable steps to protect the confidentiality
of such information.
If You have obtained the Product for the
purpose of evaluation, You may use it for a maximum period of 7 days from
initial installation, solely for this purpose. At the end of this period You
must remove the Product from Your system unless You have purchased a license
for the Product.
You may load, copy or transmit the
Software in whole or in part, only as necessary to enable the Software to be
used by up to the permitted number of Users on the permitted number of computer
systems and CPUs as designated on the Certificate of License and Authenticity
(COLA). Should You license the Software
through a Xinuos subscription license, Your rights to use the Software will be
limited to the period for which a subscription license is active. You must take reasonable means to assure that
the number of Users does not exceed the permitted number of Users. You may make
archival copies of the Software as required for back-up purposes.
YOU
MAY PRINT OR COPY THE DOCUMENTATION ONLY FOR USE WITH LICENSED Xinuos SOFTWARE.
All trademarks, service marks, patents,
copyright and other proprietary notices must be reproduced when making copies
in whole or in part.
You shall not modify, decompile,
disassemble, decrypt, extract or reverse engineer the Software for any purpose,
except and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation. If You wish to exercise any
rights under Article 6.1b of the EC Directive on the Legal Protection of
Software, (Directive 91/250), You shall, in the first instance, write to Xinuos’s
Legal Department.
LIMITED WARRANTY
Xinuos warrants that upon Your receipt of
the Product and for a period of 90 calendar days thereafter, the media, if any,
on which the Software is embedded will be free of defects in material and
workmanship under normal use. Xinuos does not warrant that (i) the Software and
any related Updates will be free of defects, (ii) the Software will satisfy all
of Your requirements or (iii) the use of the Software will be uninterrupted or
error-free.
In case of breach of warranty related to
the quality of the media, You must return at Your expense and no later than 10
days after the expiration of the warranty period, the Product to Xinuos or its
local authorized representative, together with a copy of Your dated Proof of
Purchase. Xinuos or its representative will replace any defective media, or if not
practicable, may terminate this Agreement and refund to You the amount paid for
the Product. You acknowledge that this Paragraph sets forth Your exclusive
remedy and Xinuos’s exclusive liability for any breach of warranty or other duty
related to the quality of the Product.
LIMITATION OF LIABILITY
EXCEPT FOR THE Xinuos WARRANTY SET OUT
ABOVE, OR OTHERWISE EXPRESSLY PROVIDED IN A SEPARATE AGREEMENT WITH Xinuos OR YOUR
SUPPLIER, ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY
LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY Xinuos, ITS LICENSORS OR
REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER
RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.
UNDER NO CIRCUMSTANCES WILL Xinuos OR ITS
LICENSORS OR REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE,
BASED ON YOUR CLAIMS OR THOSE OF YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO,
CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE
PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK
OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR
IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY
WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO
EVENT WILL THE AGGREGATE LIABILITY WHICH Xinuos OR ITS LICENSORS MAY INCUR IN ANY
ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE
SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE
LIMITATION OF EXCLUSION OF LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EXPORT RESTRICTIONS
You acknowledge that the Product and the
media are subject to export controls under the U.S. Export Administration
Regulations and the export regulations of other countries. You may not export
or re-export, directly or indirectly, the Product, the media, or any related
technical information or materials unless you have obtained an appropriate
authorization from the U.S. Commerce Department and any other relevant
government authority.
When licensed to a
Manufacturer: Xinuos, Inc., 2300 West Sahara Avenue
TERM AND TERMINATION
This license shall remain in effect until
terminated as set forth herein. You may terminate this Agreement, without right
to refund, by notifying Xinuos of such termination. Xinuos may terminate this
Agreement, upon reasonable notice and without judicial or administrative
resolution, if You or any of Your employees or consultants breach any term or
condition hereof.
Upon the termination of this Agreement
for any reason, all rights granted to you hereunder will cease, and You must
promptly (i) purge the Software and any related Updates from all your computer
systems, storage media and other files, (ii) destroy the Products and all
copies thereof and (iii) deliver to Xinuos an affidavit that certifies that you
have complied with these termination obligations.
ASSIGNMENT
Subject to Your compliance with the
Export Restrictions Provision above, You may assign this Agreement and permanently
transfer the Products to a third party, but only if You promptly send Xinuos an
affidavit signed by both You and Your assignee that (i) sets forth Your
assignee’s name and address, (ii) identifies the Product being assigned
(including name, release number and serial number) (iii) identifies the
manufacturer and serial number of the computer system on which Your assignee
will load and use the Software and any related Updates, (iv) acknowledges that
Your assignee will comply with the terms and conditions of this Agreement and
(v) certifies that You have fulfilled item (i) of the Termination Section above
and have not retained any Products or copies thereof. Except as provided above,
You may not assign, sublicense, rent, lend, lease, pledge or otherwise transfer
or encumber the Products, this Agreement or Your rights or obligations
hereunder without Xinuos’s prior approval.
RESTRICTIONS
The Software is not designed or intended
for use in on-line control of aircraft, air traffic, aircraft navigation or
aircraft communications; or in the design, construction, operation or
maintenance of any nuclear facility. In addition, the Software is not intended
for any activity relating to the design, development, production, stockpiling
or use of nuclear, chemical or biological weapons, or missiles. Xinuos's
disclaimer of any express or implied warranties as stated above applies to such
uses as well as all others. You agree that You will not knowingly use the
Software for such purposes.
MISCELLANEOUS
All notices or approvals required or
permitted under this Agreement must be given in writing. Any waiver or
modification of this Agreement will not be effective unless executed in writing
and signed by Xinuos. This Agreement will bind your successors-in-interest. This
Agreement is governed by the laws of the State of