xThink Software License Agreement

THIS IS A CONTRACT. BEFORE YOU DOWNLOAD THE SOFTWARE AND/OR COMPLETE THE INSTALLATION PROCESS, CAREFULLY READ THIS AGREEMENT. BY DOWNLOADING THE SOFTWARE AND/OR CLICKING THE APPLICABLE BUTTON TO COMPLETE THE INSTALLATION PROCESS, YOU CONSENT TO THE TERMS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, CLICK THE APPROPRIATE BUTTON TO CANCEL THE INSTALLATION PROCESS, DO NOT INSTALL OR USE THE SOFTWARE, AND RETURN THE SOFTWARE WITHIN FIFTEEN (15) DAYS OF RECEIPT OF THE SOFTWARE (INCLUDING ALL ACCOMPANYING WRITTEN MATERIALS, ALONG WITH THEIR CONTAINERS) TO THE PLACE YOU OBTAINED THEM. ALL RETURNS SHALL BE SUBJECT TO XTHINK’S THEN CURRENT RETURN POLICY.

DEFINITIONS As used in this Agreement, the following terms have the following meanings.
“You.” Means you the individual using the SOFTWARE as well as your employer if you are using the SOFTWARE within the scope of your employment.
“xThink.” Means (i) xThink Corporation, a company organized under the laws of the State of Texas, U.S.A.
“Software.” Means the computer software programs provided with this Agreement and which are being installed together with all accompanying documentation. If the SOFTWARE is part of a xThink suite product, the term SOFTWARE means all of the applicable xThink software programs comprising the applicable suite (including all accompanying documentation, utilities, and driver interface software) you have acquired. SOFTWARE includes all Upgrades that may be provided by xThink and all Multiple Access Software.
“Upgrade.” Means any supplemental or replacement code for computer software you have previously licensed from xThink.

GRANT OF LICENSE. In consideration of payment of the applicable fees to xThink, xThink is willing to provide you with a limited, non-exclusive right to use the SOFTWARE, but only pursuant to the terms and conditions of this Agreement. The specific use rights granted you are as follows and depend upon the type of license you have acquired:

RESTRICTIONS. You may not: (i) reverse engineer, decompile, or disassemble the SOFTWARE (except to the extent such foregoing restriction is expressly prohibited by applicable law); (ii) sub-license, lease, or rent the SOFTWARE; (iii) (other than as expressly permitted under this Agreement) distribute in whole or part, modify, or create derivatives of the SOFTWARE or applications created with the SOFTWARE; and (iv) directly or indirectly, export, re-export, download, or ship the SOFTWARE in violation of the laws and regulations of the U.S.A. and the laws and regulations of the applicable jurisdiction in which you use or are downloading the SOFTWARE. Under no circumstance is “floating” or shared use permitted under this Agreement. Nothing in this Agreement, however, is intended to prevent you from creating your own driver interface software for use with xThink software and third party hardware; provided, however, that in doing so you do not modify or use (in whole or part) any of the driver interface SOFTWARE.

TRANSFER. If you have a single user, you may transfer the SOFTWARE to a third party provided that you notify xThink in writing of such transfer (including the name and location of such third party), such third party accepts the terms and conditions of this Agreement, and after such transfer you do not retain any copies of the SOFTWARE (including all Upgrades that you may have received) nor retain any of the written materials accompanying the SOFTWARE. xThink may, in its discretion, charge you a fee for the transfer of the SOFTWARE. If you have a multiple user license, an academic license, a student edition license, or an evaluation license, the license is non-transferable and you may not distribute or otherwise provide the SOFTWARE to any third party or (with respect to a multiple seat license) to any of your sites or facilities not expressly identified in the MSLPA.

UPGRADES. If the SOFTWARE is an Upgrade, you may only use the SOFTWARE if you have (at the time you receive the Upgrade) a valid license to use the pre-existing SOFTWARE. Further, the license agreement accompanying the Upgrade applies to your use of the Upgrade. While you may continue to use the pre-existing SOFTWARE, you may only use it on the same machine upon which the Upgrade is used and the license that accompanied the pre-existing SOFTWARE will continue to apply to your use of the pre-existing SOFTWARE.

HOME USAGE EXCEPTION. Notwithstanding anything in this Agreement to the contrary, if you are a business or other entity, the primary user of the single computer on which the SOFTWARE is installed and used as authorized by the applicable license may also install and use the SOFTWARE on one computer located in such user’s home; provided the use of the SOFTWARE on such home computer is limited to work performed in the scope of such person’s employment with you and further provided, such person promptly deletes the SOFTWARE from the home computer upon the termination of his or her employment with you.

Multiple Versions (CD-ROM Media). If the SOFTWARE is distributed on a CD-ROM containing multiple versions of the SOFTWARE for use with different operating systems, you may only use one version of the SOFTWARE. The foregoing limitation does not apply to Multiple Access Software.

SOFTWARE KEY. If the SOFTWARE requires a software key code, you acknowledge that the SOFTWARE will not function without a certain, unique software key code or hardware key. This software key code or hardware key will be furnished to you by xThink and you agree that such software key code is to be used solely with the SOFTWARE for which it is provided. While xThink may (in its sole discretion) provide you with the applicable key prior to receipt from you of the applicable license fees, you will remain obligated to pay such fees to xThink.

COPYRIGHT. No Other Licenses. The SOFTWARE is owned by xThink or its suppliers and is protected by applicable copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material. You may, however, copy the SOFTWARE solely for backup or archival purposes. All rights not expressly granted to you in this Agreement are reserved to xThink. Further, and without limiting the foregoing, no license or any right of any kind (whether by express license, implied license, the doctrine of exhaustion, or otherwise) is granted under any xThink patents (whether identified herein or not) or other intellectual property right of xThink with respect to any other product(s) of xThink or of any third party, including without limitation, the right to use any of these other products.

PATENT AND TRADEMARK NOTICE. For patents covering xThink products, refer to the appropriate location. Further, all other product and company names used herein are (or may be) trademarks or trade names of their respective companies.

LIMITED WARRANTY. Except for SOFTWARE provided under an evaluation license which SOFTWARE is provided without warranty, xThink warrants, for your benefit alone, that for a period of ninety (90) days from the date the SOFTWARE is shipped to you (i) the SOFTWARE will perform substantially in accordance with the accompanying written materials, and (ii) the medium on which the SOFTWARE is recorded will be free from defects in materials and workmanship under normal use and service. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Some states/jurisdictions do not allow limitations on duration of an express or implied warranty, so the above or any other limitation provided herein may not apply to you. In such event, such warranties are limited to the minimum warranty period allowed by applicable law. You must obtain a Return Material Authorization number from xThink before returning the SOFTWARE under warranty to xThink and you agree to pay expenses for shipment to and from xThink. The Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse, misapplication, improper calibration by you, third party products (i.e., hardware or software) used by you which are not intended by xThink for use with the SOFTWARE, utilization of an improper hardware or software key (if applicable), or unauthorized maintenance of the SOFTWARE.

CUSTOMER REMEDIES. xThink’s sole obligation (and your sole remedy) with respect to the foregoing Limited Warranty shall be to, at xThink’s option, return the fees paid or repair/replace the SOFTWARE, provided that xThink receives written notice of applicable defects during the warranty period. You may not bring an action to enforce your remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.

NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. xThink DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UINNTERRUPTED OR ERROR FREE. XTHINK EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.

INTELLECTUAL PROPERTY LIABILITY. xThink shall, at its own expense, defend any claim resulting from your use of the SOFTWARE as authorized by your license to the extent that such claim alleges that the SOFTWARE infringes any patent, copyright, or trademark protected by the laws of the U.S.A., Canada, Mexico, Japan, Australia, Switzerland, Norway, or the European Union, provided that such claim does not arise from your use of the SOFTWARE in combination with equipment or devices not made by xThink, or from any modification of the SOFTWARE not made by xThink, and further provided that you notify xThink in writing immediately upon your obtaining notice of such impending claim and your full cooperation with xThink in preparing a defense. If you provide to xThink the authority, assistance, and information xThink needs to defend or settle such claim, xThink shall pay any final award of damages or settlement with respect to such claim and any expense you incur at xThink’s written request, but xThink shall not be liable for a settlement made without its prior written consent. If the SOFTWARE is held to be infringing of the rights stated above and the use thereof is enjoined or if xThink believes the SOFTWARE may be held to infringe a third party’s intellectual property rights, xThink shall, at its option, either (i) procure for you the right to use the SOFTWARE, (ii) replace or modify the SOFTWARE with other software which does not infringe, or (iii) receive your return of the infringing SOFTWARE and refund to you the license fee payment(s) made by you to xThink. The foregoing states your sole remedy for, and xThink’s entire liability and responsibility for, infringement of any patent, trademark, copyright, or other intellectual property right relating to the SOFTWARE. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.

LIMITATION ON LIABILITY. The entire liability of xThink and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall xThink and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the SOFTWARE, any technical support services relating to the SOFTWARE, or related hardware even if xThink or its licensors, distributors, and suppliers has been advised of the possibility of such damages. You acknowledge that the applicable fees and prices reflect this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because the SOFTWARE, the services, or the hardware is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall xThink’s liability for property damage exceed the greater of $50,000 (U.S.) or the license fee paid for the SOFTWARE.
U.S. GOVERNMENT RESTRICTED RIGHTS. If you are an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure, or transfer of the SOFTWARE, or any related documentation of any kind, including technical data or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 (as amended or supplanted) for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 (as amended or supplanted) for military agencies. The SOFTWARE is commercial computer software and the related documentation is commercial computer software documentation. The use of the SOFTWARE and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto. The Contractor/Manufacturer is xThink Corporation, 16980 Bar Harbor Bend, Texas, Round Rock, U.S.A., 78681.

COMPLIANCE. You agree to make all applicable records available for review by xThink during your normal business hours so as to permit xThink (upon reasonable notice to you) to verify your compliance with the terms and conditions of this Agreement. Further, if you are a business or other entity, you agree that upon the request of xThink or xThink’s authorized representative, you will promptly document and certify in writing to xThink that your and your employees’ use of the SOFTWARE complies with the terms and conditions of this Agreement. xThink may (upon written notice) inspect your use of the SOFTWARE during your normal business hours to ensure your compliance with this Agreement. If the results of any such inspection indicate the underpayment by you of applicable fees due and payable to xThink, you shall: (i) immediately pay such amounts to xThink and (ii) reimburse xThink for the cost of such inspection.

TERMINATION. This Agreement shall automatically terminate upon failure by you to comply with its terms. Upon termination of this Agreement, regardless of the reason, you must destroy all copies of the SOFTWARE.

GENERAL. This Agreement is governed by the laws of the State of Texas, U.S.A., exclusive of any provisions of the United Nations Convention on the International Sale of Goods, and without regard to principles of conflicts of law and (ii) the non- exclusive venue for all actions under this Agreement shall be in the courts located in Williamson County, Texas, U.S.A. and the parties agree to submit to the jurisdiction of such courts. If any action is brought by either party to this Agreement against the other regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorney fees and court costs. If any provision of this Agreement is held invalid, the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect. If you are downloading the SOFTWARE, you represent and warrant that you are not located in or under the control of any country which the export laws and regulations of such country or of the United States prohibit the exportation of the SOFTWARE to.

© 2003 xThink Corporation. All Rights Reserved