proXimio Inc.
END-USER LICENSE AGREEMENT
The software and materials provided with this agreement are
licensed,
not sold, and are available for use only under the terms of this
license agreement. Please read this agreement carefully. By
downloading, installing, copying, or otherwise using the software, you
agree to be bound by the terms and conditions of this agreement and
become a party to this agreement. If you do not agree with all of the
terms and conditions of this agreement, do not download, install, copy
or otherwise use the software.
This proXimio, Inc. ("proXimio") End User License Agreement
("Agreement") accompanies a proXimio software product in
machine-executable binary code and related explanatory written
materials ("Software"). The term "Software" shall also include any
modified versions or updates of the Software licensed to you
("Licensee") by proXimio, but does not include source code for the
proXimio software product. You may install and use a modified version,
update,
or upgrade of the Software only if you have a validly licensed full
version of the Software being modified, updated, or upgraded. If you
download, install, copy, or otherwise use a modified version, update,
or upgrade of the Software, then this Agreement terminates as to the
previous version of the Software, and you have a license only to such
modified version, update, or upgrade of the Software under the terms of
this Agreement. This copy of the Software is licensed to you, Licensee,
as the end user, subject to all of the terms and conditions of this
Agreement.
LICENSE GRANT. Subject to the terms and conditions of this Agreement,
proXimio grants Licensee a non-exclusive and non-transferable license
only to install and use one copy of the Software on a single computer.
A single license for the Software does not allow you to share the
Software or use it concurrently on different computers or for others
other than the Licensee to access, install, download, copy or otherwise
use the functionality of the Software.
RESTRICTIONS. Except as otherwise expressly permitted in this
Agreement, Licensee may not: (i) reproduce or copy any of the Software;
(ii) modify or create any derivative works of the Software, including
translation or localization; (iii) decompile, disassemble, reverse
engineer, or otherwise attempt to derive the source code for the
Software; (iv) redistribute, encumber, sell, rent, lease, sublicense,
or otherwise transfer rights to the Software; (v) remove or alter any
trademark, logo, copyright or other proprietary notices, legends,
symbols or labels in the Software;
TERMINATION. Without prejudice to any other rights, proXimio may
terminate this Agreement if Licensee breaches any of its terms and
conditions. Upon termination, Licensee shall destroy all copies of the
Software.
PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property
rights in the Software shall remain in proXimio. Licensee acknowledges
such ownership and intellectual property rights and will not take any
action to jeopardize, limit or interfere in any manner with proXimio's
ownership of or rights with respect to the Software. The Software is
protected by copyright and other intellectual property laws and by
international treaties.
DISCLAIMER OF WARRANTY. THE SOFTWARE (INCLUDING WITHOUT LIMITATION THE
RELATED DOCUMENTATION) IS PROVIDED ON AN "AS IS" BASIS, WITHOUT
WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT
IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR
NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF
THE SOFTWARE IS BORNE BY LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE
IN ANY RESPECT, LICENSEE AND NOT PROXIMIO ASSUMES THE ENTIRE COST OF
ANY
SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN
ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED
HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL PROXIMIO BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION,
OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF
THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE
THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN
ANY CASE, PROXIMIO'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS
AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES
LICENSEE PAID FOR THIS LICENSE (IF ANY).
EXPORT CONTROL. Licensee agrees to comply with all export laws and
restrictions and regulations of the United States or foreign agencies
or authorities, and not to export or re-export the Software in
violation of any such restrictions, laws or regulations, or without all
necessary approvals.
GENERAL. This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof. Except to the extent
applicable law, if any, provides otherwise, this Agreement shall be
governed by the laws of the State of California, United States of
America, excluding its conflict of law provisions. Licensee irrevocably
submits to the jurisdiction of any state or federal court in the State
of California, County of Santa Clara, which shall be the exclusive
venue with respect to any action or proceeding that relates to this
Agreement.
The relationship between proXimio and Licensee is that of independent
contractors and neither Licensee nor its agents shall have any
authority to bind proXimio in any way. If any dispute arises under this
Agreement, the prevailing party shall be reimbursed by the other party
for any and all legal fees and costs associated therewith.
v1.0 - 11/01/2006