Xcelsius|XL Professional 4.0

EULA - End User License Agreement

Xcelsius standard End User License Agreement please read carefully
This Xcelsius Standard End User License Agreement ("Agreement") is between you (both the individual installing the Software and, if applicable, the legal entity on behalf of which such individual is
acting) ("You" or "Your") and Infommersion, Inc., a Delaware corporation ("Vendor").

TAKING ANY STEP TO SET-UP OR INSTALL, OR ACTUALLY USING, THE SOFTWARE (DEFINED BELOW) IN ANY WAY CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN OR ELECTRONIC APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN OR ELECTRONIC APPROVAL BY OR ON BEHALF OF YOU WILL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.
IF YOU DO NOT AGREE WITH ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY RETURN THE SOFTWARE (AND NOT KEEP ANY COPIES) TO VENDOR AND SO NOTIFY VENDOR OF SUCH FAILURE TO AGREE.
1. Definitions
1.1 "Documentation" means the user guides, manuals and other
documentation provided to you by Vendor.
1.2 "Embedded Code" means certain portions of the Software that
are necessarily included within the Self-Contained Presentations created by the use of the Software.
1.3 "Self-Contained Presentation" means a presentation created
by You through use of the Software that (i) includes embedded data extracted by You using the Software from a spreadsheet data file and
(ii) does not include the capability of establishing a connection to any external data source.
1.4 "Software" means Vendors XcelsiusT Standard software, in
object code format only, Documentation and any updates of the foregoing provided by Vendor to You.
2. Software license
2.1 Limited License. Subject to the terms and conditions of
this Agreement, Vendor hereby grants to You a limited, personal, non-exclusive, non-transferable, non-sublicenseable, revocable license in the United States to:
(a) install, load and use a single copy of the Software solely
(i) for Your own internal personal or internal business purposes to create Self-Contained Presentations through the extraction of data from spreadsheet data files and combination of such data with Embedded Code, (ii) on a single computer at a time (you may not make the Software available over a network where it could be used by multiple computers at the same time), and (iii) in accordance with the user guides for the Software;
(b) use Self-Contained Presentations and distribute
Self-Contained Presentations to third party end users (including the Embedded Code (in byte code format), but solely as an integrated and incorporated portion of Self-Contained Presentations and solely as necessary for third party end users to view and interact with Self-Contained Presentations);
(c) use the Documentation provided with the Software in support
of Your authorized use of the Software; and
(d) make one (1) back-up copy the Software in object code
format only, for archival or backup purposes, provided that all titles and trademark, copyright and restricted rights notices contained in the Software are reproduced on all such copies.
For avoidance of doubt, the foregoing license does not include the right to create, distribute, reproduce, use or otherwise exploit any presentation capable of establishing a connection to an external data source.
2.2 Third Party Licenses. The license contained in Section 2.1
is conditioned upon Your obtaining, and You hereby agree not to make any use of the Software until You obtain, a license under any applicable third party intellectual property or rights or other rights covering or necessary for Your use of the Software, including without limitation any appropriate licenses to use third party applications to create and modify a spreadsheet data file and third party applications to present, display or view Self-Contained Presentations. You acknowledge that the Software does not carry, and You do not receive, under this Agreement any license, covenant not to sue, or other rights under any third party intellectual property rights or other rights.
2.3 Restrictions. You will not, nor permit others to: (a) use
the Software (including the Documentation) or any element thereof except as expressly permitted herein; (b) reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods or techniques embodied in the Software, except to the extent expressly permitted by applicable law notwithstanding contractual obligations to the contrary and then only after (i) You have notified Vendor in writing of Your intended activities and the information sought and (ii) Vendor fails to provide such information within a reasonable period of time following such notice; (c) modify, transfer, assign, pledge, sublicense, rent, lease, sell, resell, share, publicly perform, publicly display or create derivative works (other than creating Self-Contained Presentations from and for the authorized uses of the
Software) based on the Software; (d) distribute the Software (other than the Embedded Code that is necessarily included within Self-Contained Presentations created by and for the authorized uses of the Software); or (e) use more than one copy of the Software at a time, make copies of the Software other than as permitted under Section 2.1 or make the Software available over a network where it could be used by multiple computers at the same time. You agree that each distribution of a Self-Contained Presentation will be made under terms and conditions similar to those set forth in this Agreement.
2.4 Ownership. As between Vendor and You, Vendor retains all
right, title and interest (including all intellectual property rights and other rights) in and to the Software, including without limitation the Documentation, Embedded Code, and updates of any of the foregoing, subject only to the limited licenses expressly set forth in Section 2.1 of this Agreement. You own the media on which the Software is recorded but receive only a license to the Software and Vendor and/or its licensors retain ownership of the Software itself. You do not acquire any other rights, express or implied, in the Software other than those rights expressly granted under this Agreement.
3. Warranties; Limitation of Liability
3.1 Warranties. Vendor warrants the media on which the Software
is recorded and delivered by Vendor to You will be free from defects in materials and workmanship under normal use for a period of ninety
(90) days from the date delivered to You. Your exclusive remedy under this Section shall be, at Vendors option, a refund of the purchase price actually paid for the Software or a replacement of the media on which the Software is recorded and the Software. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
3.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET
FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VENDOR AND ITS LICENSORS (COLLECTIVELY REFERRED TO AS "VENDOR" FOR THE PURPOSES OF SECTION 3) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VENDOR OR ITS REPRESENTATIVE SHALL CREATE A WARRANTY. VENDOR DOES NOT WARRANT THAT THE SOFTWARE PROVIDED BY VENDOR WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MEDIA ON WHICH THE SOFTWARE IS PROVIDED IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SOFTWARE PROVIDED BY VENDOR. YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
3.3 Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY
LAW, VENDOR SHALL NOT BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, EVEN IF VENDOR HAS BEN ADVISED OF THE RISK OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU (other than as may be required by applicable law in cases involving personal injury). IN NO EVENT WILL VENDORS AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY OWED AND ACTUALLY PAID TO VENDOR BY YOU FOR THE SOFTWARE. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. The parties acknowledge that the limitations of liability in this Section 3.3 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Vendor would not have entered into this Agreement. Vendors pricing reflects this allocation of risk and the limitation of liability specified herein.
4. Termination
This Agreement is effective until terminated. You may terminate this Agreement at any time by notifying Vendor in writing. Vendor may terminate this Agreement at any time upon Your breach of any of the provisions hereof. Upon termination of this Agreement, You will cease all use of the Software (including without limitation the Documentation), return to Vendor or destroy the Software and all Documentation and related materials in Your possession (and all copies of any of the foregoing), and so certify to Vendor. Sections 1, 2.3, 2.4, 3, 4, and 5 will survive any termination of this Agreement.

5. General Terms
5.1 Law. This Agreement and all matters arising out of or
relating to this Agreement will be governed by the internal laws of the State of California without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Each party hereby irrevocably consents to the jurisdiction and venue of the state and federal courts located in San Diego County, California in connection with any claim, action, suit, or proceeding relating to this Agreement. Neither party will commence or prosecute any claim, action, suit, or proceeding relating to this Agreement other than in the courts set forth in the preceding sentence, except either party may seek injunctive, equitable or similar relief from any court of competent jurisdiction. The parties hereby waive any objection that they may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agree not to plead or claim the same.
5.2 Severability and Waiver. If any provision of this Agreement
is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
5.3 No Assignment. You may not assign, sell, transfer, delegate
or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Vendor which may be withheld in Vendors sole discretion. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
5.4 Export Administration; Government Users. You will comply
fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls").
Without limiting the generality of the foregoing, You will not, and You will require Your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls. If You are an agency or instrumentality of the United States Government, the Software constitutes "commercial computer software" and "commercial computer software documentation", and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software are governed by the terms of this Agreement.
5.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and, other than any Vendor standard customer agreement (including without limitation any agreement relating to any pilot programs) signed by the parties, supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any of Your purchase orders or other ordering documents, whether effective before or after the effective date of this Agreement.