Xinuos SLA
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 30 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.
U.S. GOVERNMENT RESTRICTED RIGHTS
When licensed to a U.S., State, or Local Government; all Software produced by XINUOS is commercial computer software as defined in FAR 12.212, and has been developed exclusively at private expense. All technical data, or XINUOS commercial computer software/documentation is subject to the provisions of FAR 12.211 – “Technical Data”, and FAR 12.212 – “Commercial Computer Software” respectively, or clauses providing XINUOS equivalent protection in DFARS or other agency specific regulations.
Manufacturer:
Xinuos, Inc.,
6501 Red Hook Plaza, Suite 201-529
St. Thomas, USVI 00802
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 United States Virgin Islands where Xinuos has its U.S.A. headquarters as documented at www.xinuos.com; excluding (i) the local choice of law principles and (ii) the United Nations Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is held to be unenforceable, in whole or part, such holding will not affect the validity of the other provisions of this Agreement.