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Xinet End User Software License Agreement
THIS XINET END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) IS THE LEGAL AGREEMENT THAT GOVERNS YOUR USE OF THE ASSET MANAGEMENT SOFTWARE MADE AVAILABLE BY XINET INC. (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE “SOFTWARE”). THIS AGREEMENT IS BETWEEN YOU, THE CUSTOMER WHO HAS ACQUIRED THE SOFTWARE (“YOU”), AND XINET INC. (“XINET”). PLEASE READ THIS AGREEMENT CAREFULLY.
XINET IS ONLY WILLING TO PROVIDE THE SOFTWARE TO YOU ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. YOU ACCEPT THIS AGREEMENT BY INSTALLING OR USING THE SOFTWARE OR CLICKING ON THE BUTTON INDICATING ACCEPTANCE OF THE AGREEMENT WHICH IS PRESENTED UPON SOFTWARE INSTALLATION. BY CLICKING ON THE BUTTON TO ACCEPT THIS AGREEMENT OR BY INSTALLING THE SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR IF YOU HAVE NAMED A COMPANY AS CUSTOMER, ON BEHALF OF THE COMPANY NAMED AS CUSTOMER, AND TO BIND EITHER YOURSELF OR SUCH COMPANY TO THE TERMS OF THIS AGREEMENT.
IF YOU DID NOT ACQUIRE THE SOFTWARE FROM XINET OR FROM AN AUTHORIZED XINET INTEGRATOR OR A XINET AFFILIATE (EACH, AN “AUTHORIZED INTEGRATOR”), THEN YOU MAY NOT ENTER INTO THIS AGREEMENT OR USE THE SOFTWARE. NO OTHER PARTY HAS THE RIGHT TO TRANSFER A COPY OF THE SOFTWARE TO YOU.
IF YOU ARE UNWILLING TO ACCEPT THIS AGREEMENT, DO NOT USE THE SOFTWARE. IF YOU HAVE ALREADY PAID FOR THE SOFTWARE WITHOUT HAVING A PRIOR OPPORTUNITY TO REVIEW THIS AGREEMENT AND ARE NOW UNWILLING TO AGREE TO THESE TERMS, YOU MAY, WITHIN TEN (10) DAYS AFTER THE DATE ON WHICH YOU ACQUIRED THE SOFTWARE, RETURN IT TO XINET OR THE AUTHORIZED INTEGRATOR FROM WHOM YOU ACQUIRED IT, ALONG WITH ITS ORIGINAL PACKAGING AND PROOF-OF-PURCHASE, FOR A FULL REFUND.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NO AUTHORIZED XINET INTEGRATOR ACTS AS AN AGENT OF XINET, AND NO SUCH PARTY MAY ENTER INTO ANY CONTRACTS ON BEHALF OF XINET. NO AUTHORIZED INTEGRATOR HAS THE AUTHORITY TO MODIFY THE TERMS OF THIS AGREEMENT.
1. Grant of License. The Software consists of (a) certain components that are designated by Xinet as server software (“Server Software”) that permit you to manage creative asset files stored on the one or more internal Xinet servers for which you have purchased a license (each, a “Xinet Server”), (b) certain client-side plug-in and extension utility components that permit the number of your internal employees for whom you have purchased a use license concurrently to access and use the Server Software and the files stored on the Xinet Server (“Client Software”), and (c) certain client-side utility components that provide desktop computer users, which may be external to your organization, with limited access to, and use of, your Xinet Server via the internet, solely to enable such users to upload, download, and search the creative asset files stored on your Xinet Server (“Utility Software”). The Server Software, Client Software and the Utility Software are collectively referred to herein as the “Software”. Depending on the specific set of Xinet Software components for which you have paid the corresponding license fees, certain components may not be available to you in your Software installation and are not covered by the licenses granted in this Agreement.
1.1 Server Software. Subject to the terms and conditions of this Agreement, Xinet grants you a non-exclusive, non-transferable, worldwide, revocable license, during the term of this Agreement, to (a) install and execute, in each case on the Xinet Server in your possession, one (1) copy of the Server Software for which you have paid the corresponding license fees, in executable code form solely in accordance with the Documentation and solely to establish and use, on an internal basis and by the number of concurrent users for whom you have paid the corresponding license fees, one or more volumes of creative asset files to be stored on your Xinet Server and (b) to make one (1) copy of the Server Software for which you have paid the corresponding license fees, solely for backup or archival purposes.
1.2 Client Software. Subject to the terms and conditions of this Agreement, Xinet grants you a non-exclusive, non-transferable, worldwide, revocable license, during the term of this Agreement, to make a reasonable number of copies of the Client Software and to install and execute such copies of the Client Software on end-user computers in your possession, in each case solely in executable code form and in accordance with the Documentation, solely for your internal business purposes, and to enable the number of concurrent users for whom you have paid the corresponding license fees to access and use the Xinet Server and upload and download files from the Xinet Server.
1.3 Utility Software. Subject to the terms and conditions of this Agreement, Xinet grants you a non-exclusive, non-transferable, worldwide, revocable license, during the term of this Agreement, to (a) permit each third party to whom you are providing consulting services related to the management of creative asset files (each, a “Utility User”) to install and execute the Utility Software, solely in executable code and solely (i) in accordance with the Documentation and (ii) to enable the Utility User to access, via the internet, the Xinet Server and upload and download files from the Xinet Server, in each case in connection with the consulting services provided by you. You will be solely responsible for each Utility User’s use of the Utility Software and any services provided by you to any Utility User. Xinet and its suppliers make no warranty, and have no obligation to provide support or other services to any Utility User. You will defend and indemnify Xinet and its suppliers from any claims or liabilities arising from or related to any Utility User to whom you provide access to the Software. You must enter into transactions with each Utility User on your own account and not on behalf of Xinet.
2. Restrictions on Use. You acknowledge, and will notify each Utility User, that the Software and its structure, organization, and source code constitute valuable trade secrets of Xinet and its suppliers. Accordingly, you agree not to (a) modify, adapt, alter, translate, or create derivative works from the Software or any copy, in whole or in part; (b) merge the Software with other software; (c) except as expressly permitted in Section 1.3, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party, (d) use the Software in any service bureau or time-sharing arrangement, (e) REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR OTHERWISE ATTEMPT TO DERIVE THE SOURCE CODE FOR THE SOFTWARE, or (f) otherwise use or copy the Software except as expressly allowed under Section 1. You will not remove, alter, or obscure any proprietary rights notices (including copyright notices) of Xinet or its suppliers on the Software, and you shall reproduce the same proprietary rights notices (including copyright notices) on any copy of the Software as appears on the original. You will ensure that each copy of the Utility Software that is distributed or made available by you is conspicuously marked with Xinet’s proprietary rights notices.
3. Delivery and Acceptance. The Software is licensed and not sold, and the nonexclusive license set forth in this Agreement is not a sale of the Software or any copy. Title to the media on which the Software is recorded will transfer to you upon the delivery to you of such media, and the Software shall be deemed irrevocably and unconditionally accepted upon such delivery. Title to the Software remains with Xinet.
4. Proprietary Rights. THE SOFTWARE, AND ALL WORLDWIDE INTELLECTUAL PROPERTY RIGHTS THEREIN, ARE THE EXCLUSIVE PROPERTY OF XINET AND ITS SUPPLIERS. Except as stated above, this Agreement does not grant you any rights to any patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, franchises, or license in respect of the Software. All rights in and to the Software not expressly granted to you in this Agreement are reserved by Xinet and its suppliers.
5. Term and Termination; Effects of Termination. The term of this Agreement will begin on the date you accept this Agreement as provided above and will continue indefinitely. You may terminate your license at any time by destroying all copies of the Software in your possession or control. Xinet will have the right to terminate the license(s) granted to you by this Agreement immediately upon notice to you if you fail to comply with any term or condition of this Agreement. Upon any termination of this Agreement and/or the licenses for any reason, any amounts owed to Xinet under this Agreement before such termination or expiration will be immediately due and payable, all license rights granted in this Agreement will immediately cease to exist, and you must promptly discontinue all use of the Software, erase all copies of the Software from your computers, and return to Xinet, at your expense, all copies of the Software on tangible media in your possession or control.
6. Limited Warranty.
6.1 Xinet warrants to you that, for a period of thirty (30) days after delivery to you (“Warranty Period”) the Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation (including use on a computer hardware and operating system platform supported by Xinet), will be free from Errors. As used herein, “Error” means a reproducible failure of the Software to perform substantially in accordance with the Documentation provided to you together with the Software. Xinet does not warrant that your use of the Software will be completely error-free or uninterrupted. If you received the Software from an Authorized Integrator, you may be required to obtain services pursuant to the warranty in this Section 6.1 directly from your Authorized Integrator.
6.2 If you notify Xinet or the Authorized Integrator, as applicable, during the Warranty Period that the Software fails to comply with the limited warranty in Section 6.1 above, Xinet will, at its option and expense and as its sole obligation and your exclusive remedy for any breach of such warranty, use commercially reasonable efforts to correct any reproducible error in the Software reported by you in writing during the Warranty Period, or, if Xinet determines that it is unable to correct the error, Xinet may, at its option, refund to you or the Authorized Integrator, on your behalf, the license fees actually paid by you to Xinet or the Authorized Integrator, as applicable, in which case the License and your right to use the Software will be terminated. Any Error correction provided to you will not extend the original Warranty Period. Notwithstanding anything herein to the contrary, if you received the Software from an integrator, distributor, reseller, or other third party you shall only be entitled to make a warranty claim to, and receive warranty remedies from, such third party.
6.3 XINET AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. YOU UNDERSTAND THAT, EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 6.1, XINET AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, INCLUDING ANY WARRANTIES AS TO PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE EXPRESS WARRANTY STATED IN SECTION 6.1, THE SOFTWARE IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY XINET OR ANY AUTHORIZED INTEGRATOR, AGENTS OR EMPLOYEES.
6.4 Some states do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations 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.
7. Limit of Liability.
7.1 IN NO EVENT WILL XINET OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR ANY LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF XINET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XINET’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO XINET OR YOUR AUTHORIZED INTEGRATOR, AS APPLICABLE, HEREUNDER. YOU ACKNOWLEDGE THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT XINET WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN ADDITION, XINET DISCLAIMS ALL LIABILITY OF ANY KIND OF XINET’S SUPPLIERS.
7.2 Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8. Export. You acknowledge that the laws and regulations of the United States restrict the export and re-export of the Software. You agree that you will not export or re-export the Software or media in any form without the appropriate United States and foreign government approval.
9. Choice of Law. This Agreement will be governed by the laws of the State of California without regard to any conflict of laws provisions that would require the applications of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement may be brought in a federal court in the Northern District of California or in state court in Alameda County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
10. U.S. Government Restricted Rights Legend. The Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212 or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
11. Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party, for Xinet at the address set out on the Xinet website or for you, at the address provided to Xinet when the Software was licensed by you, and such notice will be effective upon receipt or three (3) business days after being deposited in the mail as required above. You may change your address by giving notice of the new address to Xinet.
12. Assignment. You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement (including your licenses with respect to the Software) to any third party without Xinet’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
13. Remedies. Except as provided in Sections 6 and 7, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Software contains valuable trade secrets and proprietary information of Xinet, that any actual or threatened breach of Section 2 will constitute immediate, irreparable harm to Xinet for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
14. Third Party Software. Certain items of software that may be provided to Xinet and distributed by Xinet together with the Software are owned by third parties and/or are subject to “open source” or “free software” licenses (“Third Party Software”). The Third Party Software is not subject to the terms and conditions in this Agreement other than Section 6.3 and Section 7. Instead, each item of Third Party Software is licensed under the terms of the end-user license that accompanies such Third Party Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end-user license for the Third Party Software. If required by any license for particular Third Party Software, Xinet provides the information to access such Third Party Software and its accompanying end-user license in the Documentation.
15. Third Party Beneficiary. Artifex Software Inc. is an express third-party beneficiary of this Agreement. Except as expressly set forth in this section, there are no intended third-party beneficiaries of this Agreement.
16. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Section 7 will remain in effect notwithstanding the unenforceability of any provision in Section 6.
18. Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”.
19. Integration. You acknowledge that you have read this Agreement, understand it, and that by installing the Software you agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between Xinet and you, which supersedes any proposal or prior agreement, oral or written, and any other communications between Xinet and you relating to the subject matter of this Agreement. No variation of the terms of the Agreement or any different terms will be enforceable against Xinet unless Xinet gives its express consent, including an express waiver of the terms of this Agreement, in writing signed by an officer of Xinet.