XANGATI END USER SOFTWARE LICENSE TERMS AND CONDITIONS
IMPORTANT: PLEASE READ BEFORE DOWNLOADING, INSTALLING OR USING THE XANGATI, INC.
("LICENSOR") SOFTWARE YOU HAVE LICENSED ("SOFTWARE"). BY EXECUTING A PURCHASE ORDER (“PURCHASE ORDER”) WITH LICENSOR, OR OTHERWISE DOWNLOADING, INSTALLING OR IN ANY WAY USING THE SOFTWARE, THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") (BOTH INDIVIDUAL DOWNLOADING THE PRODUCT AND ANY LEGAL ENTITY ON WHOSE BEHALF SUCH INDIVIDUAL IS ACTING) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT") WITH LICENSOR. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. ALL PURCHASE ORDER WILL ONLY BE EFFECTIVE IS ACCEPTED BY LICENSOR IN WRITING.
1. SOFTWARE LICENSE GRANT. Subject to the terms of this Agreement, Licensor hereby grants Licensee a perpetual, personal, non-‐sublicensable, non-‐transferable, nonexclusive license to, during the term of this Agreement, use the Licensor software ("Software") only for Licensee's internal use as part of the download and install or as part of the hardware product into which it is incorporated by Licensor, if and when needed, (or designated by Licensors) and only in accordance with any documentation that accompanies it. If the Software is provided free of charge, Licensee shall ensure that only one (1) copy of the Software is possessed by its organization (for clarity, Licensee will not allow multiple copies to be downloaded or used). Licensee may download, install and use the Software on a single computer; OR download, install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. Except as otherwise specifically provided, a license for the Software may not be shared, installed or used concurrently on different computers. Notwithstanding the foregoing, certain portions of the Software are licensed to Licensor, under open source licenses, which may require Licensor to grant Licensee additional rights to those set forth above for those portions of the Software. For more information please see:
http://www.redhat.com/licenses/rhel_rha_eula.html http://www.postgresql.org/about/licence/
http://www.oracle.com/technetwork/java/javase/terms/license/index.html http://www.apache.org/licenses/LICENSE-‐2.0.html
http://www.gnu.org/licenses/gpl.html http://www.gnu.org/licenses/gpl-‐2.0.html http://www.gnu.org/copyleft/lesser.html http://www.gnuplot.info/faq/faq.html
http://itextpdf.com/terms-‐of-‐use/agpl.php http://opensource.org/licenses/CDDL-‐1.0 http://jdbc.postgresql.org/license.html
http://msdn.microsoft.com/en-‐us/sqlserver/jj589698 http://www.tcpdump.org/license.html
http://opensource.org/licenses/bsd-‐license.php
http://dom4j.sourceforge.net/dom4j-‐1.6.1/license.html
Nothing in this Agreement will be construed to limit any rights granted under such open source licenses (if any).
2. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) sell, license, sub-‐license, copy, modify, distribute or otherwise transfer in whole or in part the Software or the Software License Key to another party the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited);
(iii) rent, lease, or use the Software for timesharing or service bureau purposes, provide, disclose, divulge or make available to, or permit use of the Software in whole or in part by or for, any third party without Xangati’s prior written consent; (iv) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software, any additional licensing terms provided by Xangati via product documentation, notification, and/or policy change posted at www.xangati.com; or, (v) use the Software for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and Licensee will not publish or disclose any such performance information or comparisons). To the extent the Software is being provided pursuant to an evaluation agreement with Licensor, the Software will only be used for internal evaluation purposes and not in a production environment. Licensee shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Licensor and its suppliers or licensors.
Licensee understands that Licensor may modify or discontinue offering the Software at any time. You may not copy the Software except for a reasonable number of machine-‐readable copies of the Software for backup or archival purposes and except as expressly permitted in this Agreement. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks or service marks of Xangati. Xangati retains all rights not expressly granted to you in this Agreement. The Software is protected by the copyright laws and treaties. This Agreement does not give Licensee any rights not expressly granted
herein. Licensor shall have the right to (i) audit Licensee's facilities and records to confirm that Licensee's use of the Software is in accordance with the terms and conditions of this Agreement and (ii) report the results of any such audit to Licensor's suppliers.
3. COMPLIANCE MONITORING. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE INCLUDES FEATURES TO RESTRICT USE AFTER THE APPLICABLE EVALUATION PERIOD (IF ANY) AND/OR ENABLE COMPANY OR ITS AGENTS TO REMOTELY MONITOR THE SOFTWARE FOR INCONSISTENT USE WITH THIS LICENSE (INCLUDING, WITHOUT LIMITATION, DUPLICATIVE USE OF LICENSE KEY(S) (IF PROVIDED)) ("COMPLIANCE"). LICENSEE HEREBY GRANTS COMPANY, ITS RESELLERS, AND AGENTS THE RIGHT TO MONITOR LICENSEE'S USAGE TO ENSURE COMPLIANCE WITH THE LICENSES GRANTED HEREUNDER.
4. SUPPORT AND UPGRADES. Except to the extent set forth in an applicable Purchase Order and subject to all applicable fees), this Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, "Support"). Unless support terms are attached to, or referenced in, an applicable Purchase Order, any such Support for the Software that may be made available by Licensor shall be provided in accordance with Licensor standard practices. Support, if any, shall become part of the Software and subject to this Agreement. Licensee acknowledges that the Software contains features that allow Licensor to remotely and automatically identify, track and analyze certain aspects of use and performance of Software and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith).
5. FEES; PAYMENT TERMS. The fees payable by Licensee will be as set forth in an applicable Purchase Order, or as otherwise agreed to by the parties in writing. Except as otherwise set forth in a Purchase Order, the payment terms below shall control. All credit card purchases are due and payable upfront before downloading, installing and using the Software. For all other purchases, invoices are due and payable net 30 days from the invoice date and shall be invoiced and paid in U.S. Dollars. Xangati will invoice you upon signing a Purchase Order and shipment of the applicable product, if any. Customer agrees to pay any and all applicable national -‐ sales, excise, VAT, customs, duties, or other taxes and fees, except any tax assessed upon Xangati’s net income and all foreign taxes and duties that are assessed upon the sale of Xangati Software and Product, if any. Transportation charges from Xangati’s manufacturing facility for products shipped will be paid by Customer. Title and risk of loss of products, excluding software, shall pass from Xangati, Inc. to Customer upon shipment from Xangati ’s manufacturing facility. The preprinted terms and conditions of any Customer order document shall not apply to this Purchase Order. Price increases for any renewal term will be as notified by Licensor to Licensee at least ninety (90) days prior to the beginning of such renewal term.
6. INDEMNITY. Licensee agrees that Licensor shall have no liability whatsoever for any use Licensee makes of the Software. Licensee shall indemnify and hold harmless Licensor from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from (i) Licensee's use of the Software, (ii) access to any part of the Software (including, without limitation, any interface) by Licensee's customers, as well as (iii) Licensee's failure to comply with any term of this Agreement.
7. LIMITED WARRANTY. Licensor warrants to Licensee only that the media and product, if any, on which the Software is delivered to Licensee will be free of material defects and workmanship and the Software will substantially comply with the applicable Licensor-‐provided documentation in all material respects ("Warranty Period") in each case for a period of ninety (90) days after the date of shipment of the Software License key to you. If during the Warranty Period the media is defective and the version of that Software is still commercially available,. Licensee's exclusive remedy and Licensor's sole liability will be to repair or replace defective Software; provided that, Licensee notifies Licensor in writing of such defect within the Warranty Period. Licensor may, at its option, require return of the Software as a condition to remedy under this Section.
8. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, LICENSOR AND ITS LICENSORS AND SUPPLIERS PROVIDE THE SOFTWARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-‐INFRINGEMENT.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.
9. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE WITH RESPECT TO THE SOFTWARE OR ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY FOR (I) ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, HOWEVER CAUSED, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNT IN EXCESS, IN THE AGGREGATE, OF THE AMOUNTS PAID BY LICENSEE FOR THE SOFTWARE (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00). LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY MATTERS BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
10. TERM AND TERMINATION. If a Purchase Order has been executed, the initial term of this Agreement shall, unless otherwise terminated as set forth below, be as set forth in such order. After the expiration of the initial term, this Agreement will automatically renew for consecutive renewal terms of equal length to the initial term – unless either party provides the other party with written notice of non-‐
renewal at least sixty (60) days prior to the end of the then current term. If a Licensee if bound to a term, either party may terminate this Agreement only if (i) the other party breaches this Agreement and fails to cure such breach within thirty (30) days from receipt of written notice thereof, or (ii) the other party enters bankruptcy, makes and assignment for the general benefit of creditors, has a receiver appointed, or otherwise becomes insolvent. If Licensee is not bound by any term (such as, in the case of any evaluation license): (a) Licensee may terminate this Agreement at any time and (b) Licensor may terminate this Agreement immediately if Licensee violates any provision of this Agreement. If Licensee is using the Software under an evaluation agreement with Licensor, this Agreement shall terminate
upon expiration of the applicable evaluation period, unless Licensee elects to retain such Software (subject to payment to Licensor of all applicable fees). Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall so certify to Licensor that such actions have occurred. Licensor shall have the right to inspect and audit Licensee's facilities to confirm the foregoing. Sections 2 and 6 through 14, and all accrued rights to payment, shall survive termination of this Agreement.
11. HIGH RISK USES. Licensee acknowledges that the Software is not intended for use in connection with any activity in connection with which a defect or failure of the Software, or it use, may pose a risk to human health or life and Licensee agrees not to use or allow the use of the Software or any portion thereof for, or in connection with, any such activity.
12. GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and
"commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement. The Software (and all hardware products, if provided, hereunder) were developed entirely at private expense. You may not export or re-‐export the Software except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-‐U.S. government restrictions, if applicable.
13. COMPLIANCE. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-‐export of the Software in violation of any such restrictions, laws or regulations. By installing or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country. In addition, Licensee shall comply with all laws and regulations regarding the collection and use of personally identifiable information.
14. MISCELLANEOUS. This Agreement represents the complete agreement concerning the Software between the parties, to the exclusion of any pre-‐printed or contrary terms of any Licensee purchase order (or similar document), and supersedes all prior agreements and representations between them;
provided, however, that if there is already a mutually signed agreement between Licensor and Licensee (not including any Licensee purchase order or similar document) covering Licensee's license to use the Software, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Licensor to act with
respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Licensor's consent and any action or conduct in violation of the foregoing shall be void and without effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, without regard to the Uniform Computer Information Transactions Act or the United Nations Convention for the International Sale of Goods. Without limiting Company's right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior filing a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in San Francisco, California under the Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc.; the decision of the arbitrator will be enforceable in any court.
The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
Subject to the foregoing arbitration provision, all disputes will be subject to the sole and exlcusive jurisdiction of the state and Federal courts located in San Francisco, California. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-‐English versions, the English version of this Agreement shall govern.
