EULA

  1. This End User License Agreement (“EULA” or “Agreement”) is a legal agreement between you (“you” or “Licensee”) and Xiotech Corporation (“X-IO”) that describes the terms and conditions of your use of X-IO software (other than embedded firmware in X-IO equipment) provided to you by X-IO (“Software”) as specified in the associated quotation, order acknowledgement, or invoice from X-IO (“Order”).  By reviewing, installing and/or using the Software accompanying this EULA, you indicate that you have read, understood and agree to be bound by all of the terms and conditions set forth herein. Any third-party software provided by X-IO is governed by separate terms.
  2. LICENSE AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, including the payment of applicable license fees, X-IO grants to you a nonexclusive, nontransferable, nonsublicensable, limited license to install and use, without modification, the Software in object code form only for your internal business purposes. You are not licensed to and shall not (i) copy or reproduce the Software, other than to maintain for your own backup purposes; (ii) republish, upload, post, transmit, resell or distribute in any way the Software; (iii) permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, or other arrangement; (iv) sublicense, assign, or otherwise transfer any of the rights granted to you under this Agreement; (v) decompile, disassemble, or otherwise reverse engineer the Software; or (vi) otherwise use the Software except as expressly allowed under this Section 2.
  3. RELATED DOCUMENTATION. You agree to use the operating manuals, charts, tables, written descriptions and handbooks in any medium related to the Software (“Related Documentation”) only in conjunction with your use of the Software. Related Documentation may not be reproduced or redistributed without the written consent of X-IO.
  4. LICENSE FEE. In consideration of the license granted to you herein, you agree to pay the license fee for the Software as set forth in and according to the terms of the Order.
  5. RESERVATION OF RIGHTS AND OWNERSHIP. The Software is licensed not sold, and X-IO reserves all rights not expressly granted to you in this Agreement. The Software and Related Documentation are protected by copyright, trade secret and other intellectual property laws. X-IO and/or its licensors, as applicable, own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant you any rights to trademarks or service marks of X-IO.  The Software and this Agreement are X-IO’s confidential information and you must keep them confidential, not share them with or otherwise allow access to them to third parties, and you shall use at least reasonable care to maintain the confidentiality of the Software and this Agreement.
  6. WARRANTY AND LIMITATIONS. Except for Software that is branded by a third party, X-IO warrants that the Software will perform substantially in accordance with the Related Documentation for a period of ninety (90) calendar days from the date of delivery of the Software (“Limited Warranty”). EXCEPT AS EXPRESSLY PROVIDED HEREIN, X-IO DISCLAIMS ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND RELATED DOCUMENTATION, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. X-IO does not warrant that Software is free from bugs, viruses, interruption or errors, or that the Software will meet your requirements.  Any third party branded Software delivered by X-IO is supplied “AS IS,” and you agree in such case to look solely to the warranties and remedies, if any, and such additional terms and conditions provided by the applicable third party Software licensor.  In the event that Software fails to comply with the Limited Warranty, your sole and exclusive remedy and X-IO’s sole obligation shall be, at X-IO’s discretion, the repair or replacement of Software or reimbursement of the license fee paid by you.  This Limited Warranty is void if failure of Software has resulted from accident, misuse, abuse, neglect, unauthorized repair or maintenance, or failure to follow supplied user instructions.
  7. LIMITATION OF LIABILITY. X-IO’S TOTAL LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE LICENSE TO THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, X-IO, ITS SUPPLIERS, AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, LOSS, CORRUPTION OR THEFT OF DATA, LOSS OF PROFITS OR INVESTMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF X-IO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  8. Your rights under this Agreement may be terminated or suspended by X-IO upon notice to you if you or any of your authorized users fail to comply with any term or condition of this Agreement.  Upon termination you must immediately cease using the Software. Any termination of this Agreement shall not affect X-IO’s rights hereunder.
  9. You acknowledge that the laws and regulations of the United States restrict the export and re-export of certain commodities and technical data of United States origin.  You agree not to export or re-export the Software or any related technical documentation in any form in violation of the export or import laws of the United States or any foreign jurisdiction.
  10. LAW AND VENUE. This Agreement will be governed by the laws of the State of Colorado as applied to agreements between Colorado without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
  11. This Agreement together with any associated Orders constitute the entire understanding and agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous understandings, written or oral.  In the event the terms of an Order contain additional or different terms than those herein, the terms of the Order will control. This Agreement may only be amended in a writing signed by both parties.  No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any other right.  Neither this Agreement nor any rights hereunder shall be assigned or otherwise transferred by you (by operation of law or otherwise) without the prior written consent of X-IO and any unauthorized transfer or assignment shall be void.  In the event that any of the terms of this Agreement are held to be illegal by any court of competent jurisdiction, all remaining terms of the Agreement shall remain in full force and effect.

 

 

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