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Fresno-License.txt
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Fresno-License.txt
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END-USER LICENSE AGREEMENT
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IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT (“Agreement”) BETWEEN YOU (THE CUSTOMER, EITHER AS AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AS AN ENTITY) AND XLATE.IO LLC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING FRESNO AND RELATED SOFTWARE COMPONENTS (“SOFTWARE”). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.
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In order to use the Software under this Agreement, you must receive credentials at or after the time of purchase, in accordance with the scope of use and other terms specified for each type of Software and as set forth in Section 1 of this Agreement.
1. License Grant
1.1 General Use. This Agreement grants you a non-exclusive, non-transferable, limited license to use the Software and any accompanying documentation (“Documentation”), without the right to grant sublicenses, subject to the terms and conditions in this Agreement. The Software is licensed, not sold.
1.2 Use on Multiple Machines. You may install and run the Software on an unlimited number of Hosts. “Host” means any physical or virtual machine which is controlled by you.
1.3 Archive Copies. You are entitled to make a reasonable amount of copies of the Software for archival purposes. Each copy must reproduce all copyright and other proprietary rights notices on or in the Software Product.
1.4 Electronic Delivery. All Software and license documentation shall be delivered by electronic means unless otherwise specified on the applicable invoice or at the time of purchase. Software shall be deemed delivered when it is made available for download by you (“Delivery”).
2. Restricted Uses.
2.1 You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease or use the Software for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement; (c) redistribute the Software or Modifications to anyone else in any form in whole or in part; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof (e) modify any part of the Software, create a derivative work of any part of the Software (except as permitted in Section 3), or incorporate the Software, except to the extent expressly authorized in writing by XLATE.IO LLC (“Modifications”); (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (g) utilize any equipment, device, software, or other means designed to circumvent or remove any form of use or copy protection used by XLATE.IO LLC in connection with the Software, or use the Software together with any authorization code, Source URL, serial number, or other copy protection device not supplied by XLATE.IO LLC; (h) use the Software to develop a product which is competitive with any XLATE.IO LLC product offerings; or (i) use unauthorized credentials or distribute or publish credentials, except as may be expressly permitted by XLATE.IO LLC in writing. If your unique credentials are ever published, XLATE.IO LLC reserves the right to terminate your access without notice; (j) use the Software or Documentation in violation of any law, regulation, or rule.
2.2 UNDER NO CIRCUMSTANCES MAY YOU USE THE SOFTWARE AS PART OF A PRODUCT OR SERVICE THAT PROVIDES SIMILAR FUNCTIONALITY TO THE SOFTWARE ITSELF.
3. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, XLATE.IO LLC and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions) and the Documentation. You acknowledge that you are obtaining only a limited license right to the Software and Documentation, and that irrespective of any use of the words “purchase, sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. This Agreement does not apply to subcomponents of the Software that are subject third-party licenses (e.g., open source licenses).
4. Fees and Payment. The Software license fees will be due and payable in full as set forth in the applicable invoice or at the time of purchase. If the Software does not function properly within two weeks of purchase, please contact us within those two weeks for a refund. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of XLATE.IO LLC).
5. Support, Maintenance and Services. Subject to the terms and conditions of this Agreement, as set forth in your invoice, and as set forth on the XLATE.IO LLC support page: https://github.com/xlate/staedi/wiki/Fresno-Commercial-Support, support and maintenance services may be included with the purchase of your license subscription.
6. Term of Agreement.
6.1 Term. This Agreement is effective as of the Delivery of the Software and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). For clarification, the term of your license under this Agreement may be perpetual or designated as a fixed-term license in the Invoice, and shall be specified at your time of purchase. Either party may terminate this Agreement (including all related Invoices) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided that XLATE.IO LLC may terminate this Agreement immediately upon any breach of Section 2 or if you exceed any other restrictions contained in Section 1, unless otherwise specified in this agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.2 Termination. Upon any termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof.
6.3 Expiration of License. Upon the expiration of any term under this Agreement, (a) all Software updates and services pursuant to the license shall cease, (b) you may only continue to run existing installations of the Software, (c) you may not install the Software on any additional Hosts, and (d) any new installation of the Software shall require the purchase of a new license subscription from XLATE.IO LLC.
7. Disclaimer of Warranties. The Software is provided "as is," with all faults, defects and errors, and without warranty of any kind. XLATE.IO LLC does not warrant that the Software will be free of bugs, errors, viruses or other defects, and XLATE.IO LLC shall have no liability of any kind for the use of or inability to use the Software, the Software content or any associated service, and you acknowledge that it is not technically practicable for XLATE.IO LLC to do so.
To the maximum extent permitted by applicable law, XLATE.IO LLC disclaims all warranties, express, implied, arising by law or otherwise, regarding the Software, the Software content and their respective performance or suitability for your intended use, including without limitation any implied warranty of merchantability, fitness for a particular purpose, except as set forth in Section 4.
8. Limitation of Liability.
In no event will XLATE.IO LLC be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the Software, the Software content or this Agreement, whether based on contract, tort (including negligence), strict liability or other theory, even if XLATE.IO LLC has been advised of the possibility of such damages.
In no event will XLATE.IO LLC's liability exceed the Software license price as indicated in the invoice. The existence of more than one claim will not enlarge or extend this limit.
9. Remedies. Your exclusive remedy and XLATE.IO LLC's entire liability for breach of this Agreement shall be limited, at XLATE.IO LLC's sole and exclusive discretion, to (a) replacement of any defective software or documentation; or (b) refund of the license fee paid to XLATE.IO LLC, payable in accordance with XLATE.IO LLC's refund policy.
10. Acknowledgements.
10.1 Consent to the Use of Data. You agree that XLATE.IO LLC and its affiliates may collect and use technical information gathered as part of the product support services. XLATE.IO LLC may use this information solely to improve products and services and will not disclose this information in a form that personally identifies you.
10.2 Verification. We or a certified auditor acting on our behalf, may, upon its reasonable request and at its expense, audit you with respect to the use of the Software. Such audit may be conducted by mail, electronic means or through an in-person visit to your place of business. Any such in-person audit shall be conducted during regular business hours at your facilities and shall not unreasonably interfere with your business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that you are using the Software in a way that is in material violation of the terms of the EULA, then you shall pay our reasonable costs of conducting the audit. In the case of a material violation, you agree to pay Us any amounts owing that are attributable to the unauthorized use. In the alternative, We reserve the right, at our sole option, to terminate the licenses for the Software.
10.3 Government End Users. If the Software and related documentation are supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software". All other terms and conditions of this Agreement apply.
11. Miscellaneous
11.1 Entire Agreement. This Agreement sets forth our entire agreement with respect to the Software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral.
11.2 Amendment. XLATE.IO LLC reserves the right, in its sole discretion, to amend this Agreement from time to time. Amendments to this Agreement can be located at: https://raw.githubusercontent.com/xlate/fresno-info/master/Fresno-License.txt.
11.3 Assignment. You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of XLATE.IO LLC and any attempted assignment without such consent shall be void.
11.4 Export Compliance. You agree to comply with all applicable laws and regulations, including laws, regulations, orders or other restrictions on export, re-export or redistribution of software.
11.5 Indemnification. You agree to defend, indemnify, and hold harmless XLATE.IO LLC from and against any lawsuits, claims, losses, damages, fines and expenses (including attorneys' fees and costs) arising out of your use of the Software or breach of this Agreement.
11.6 Governing Law. This Agreement is governed by the laws of the State of Ohio and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction. The jurisdiction and venue for actions related to the subject matter hereof shall be the state of Ohio and United States federal courts located in Cleveland, Ohio, and both parties hereby submit to the personal jurisdiction of such courts.
11.7 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
11.9 Waiver. Failure or neglect by either party to enforce at any time any of the provisions of this license Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.
11.10 Headings. The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs.
12. Contact Information. If you have any questions about this EULA, or if you want to contact XLATE.IO LLC for any reason, please direct correspondence to contact@xlate.io.