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iXsystems Software End User License Agreement Important - Please Read This EULA Carefully PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (EULA) BEFORE CLICKING THE AGREE BUTTON. THIS AGREEMENT SERVES AS A LEGALLY BINDING DOCUMENT BETWEEN YOU AND IXSYSTEMS, INC. BY CLICKING THE AGREE BUTTON, DOWNLOADING, INSTALLING, OR OTHERWISE USING IXSYSTEMS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT USE OR INSTALL IXSYSTEMS SOFTWARE.
This agreement is provided in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”) under confidential binding arbitration held in Santa Clara County, California. To the fullest extent permitted by applicable law, no arbitration under this EULA will be joined to an arbitration involving any other party subject to this EULA, whether through class arbitration proceedings or otherwise. Any litigation relating to this EULA shall be subject to the jurisdiction of the Federal Courts of the Northern District of California and the state courts of the State of California, with venue lying in Santa Clara County, California. All matters arising out of or relating to this agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.
1.0 Definitions 1.1 “Company”, “iXsystems” and “iX” means iXsystems, Inc., on behalf of themselves, subsidiaries, and affiliates under common control.
1.2 “iXsystems Software” means the iXsystems software.
1.3 “Device” means digital computer equipment and peripheral equipment.
1.4 “Product” means, individually and collectively, iXsystems Software.
1.5 “Open Source Software” means various open source software components licensed under the terms of applicable open source license agreements, each of which has its own copyright and its own applicable license terms.
1.6 “Licensee”, “You” and “Your” refers to the person, organization, or entity that has agreed to be bound by this EULA including any employees, affiliates, and third party contractors that provide services to You.
1.6 “Agreement” refers to this document, the iXsystems End User License Agreement.
2.0 License Subject to the terms set forth in this Agreement, iXsystems grants You a non-exclusive, non-transferable, revocable, limited license without the option to sublicense, to use iXsystems Software on Your Device(s) in accordance with Your authorized purchase and use of a Product(s) or iXsystems Software for Your internal business purposes. This use includes but is not limited to using or viewing the instructions, specifications, and documentation provided with the Product.
3.0 License Restrictions The Product, is protected by copyright laws and international treaties, as well as other intellectual property laws, statutes, and treaties. The Product is licensed, not sold to You the end user. You do not acquire any ownership interest in the Product or any other rights to such Product, other than to use such Product in accordance with the license granted under this Agreement, subject to all terms, conditions, and restrictions. iXsystems reserves and shall retain its entire right, title, and interest in and to the Product, and all intellectual property rights arising out of or relating to the Product, subject to the license expressly granted to You in this Agreement.
The Product may contain iXsystems’ trademarks, trade secrets, and proprietary collateral. iXsystems strictly prohibits the acts of decompiling, reverse engineering, or disassembly of the Product. You agree to use commercially reasonable efforts to safeguard the Product and iXsystems’ intellectual property, trade secrets, or other proprietary information You may have access to, from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify iXsystems if You become aware of any infringement of the Product and cooperate with iXsystems in any legal action taken by iXsystems to enforce its intellectual property rights. By accepting this Agreement, You agree You will not disclose, copy, transfer, or publish benchmark results relating to the Product without the express written consent of iXsystems. You agree not to use, or permit others to use, the Product beyond the scope of the license granted under Section 2, unless otherwise permitted by iXsystems, or in violation of any law, regulation or rule, and you will not modify, adapt, or otherwise create derivative works or improvements of the Product. You are responsible and liable for all uses of the Product through access thereto provided by You, directly or indirectly.
4.0 General 4.1 Entire Agreement - This Agreement, together with any associated purchase order, service level agreement, and all other documents and policies referenced herein, constitutes the entire agreement between You and iXsystems for use of the iXsystems Software and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by Your duly authorized representatives and those of iXsystems.
4.2 Waiver and Modification - No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
4.3 Severability - If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
4.4 United States Government End Users - For any Product licensed directly or indirectly on behalf of a unit or agency of the United States Government, this paragraph applies. Company’s proprietary software embodied in the Product: (a) was developed at private expense and is in all respects Company’s proprietary information; (b) was not developed with government funds; (c) is Company’s trade secret for all purposes of the Freedom of Information Act; (d) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government’s use, duplication or disclosure of such software is subject to the restrictions set forth by the Company and Licensee shall receive only those rights with respect to the Product as are granted to all other end users.
4.5 Foreign Corrupt Practices Act - You will comply with the requirements of the United States Foreign Corrupt Practices Act (the “FCPA”) and will refrain from making, directly or indirectly, any payments to third parties which constitute a breach of the FCPA. You will notify Company immediately upon Your becoming aware that such a payment has been made. You will indemnify and hold harmless Company from any breach of this provision.
4.6. Title - iXsystems retains all rights, titles, and interest in iXsystems Software and in and all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, registration keys, renewals, and extensions of such rights.
4.7 Contact Information - If You have any questions about this Agreement, or if You want to contact iXsystems for any reason, please email firstname.lastname@example.org.
4.8 Maintenance and Support - You may be entitled to support services from iXsystems after purchasing iXsystems Software, Products, or a support contract. iXsystems will provide these support services based on the length of time of the purchased support contract. This maintenance and support is only valid for the length of time that You have purchased with the Product. iXsystems may from time to time and at their sole discretion vary the terms and conditions of the maintenance and support agreement based on different business environmental and personnel factors. For more information on our Maintenance and Support contract, refer to ixsystems.com/iXsystems_SLA.
4.9 Force Majeure - iXsystems will not be deemed to be in default of any of the provisions of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond iXsystems’ reasonable control.
4.10 Termination - iXsystems may terminate or suspend Your license to use the Product or Software and cease any and all support, services, or maintenance under this Agreement without prior notice, or liability, and for any reason whatsoever, including, without limitation, if any of the terms and conditions of this Agreement are breached. Upon termination, rights to use the Product and Software will immediately cease. Other provisions of this Agreement will survive termination including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
4.11 Open Source Software Components - iXsystems uses Open Source Software components in the development of the Software and Product. Open Source Software components that are used in the Product are composed of separate components each having their own trademarks, copyrights, and license conditions.
4.12 Assignment - Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without iXsystems’ prior written consent. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. iXsystems may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
5.0 Export Control Regulations The Product or Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Product to, or make the Product accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Product available outside the US.
7.0 Limitation of Liability and Disclaimer of Warranty THE PRODUCT IS PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IXSYSTEMS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, IXSYSTEMS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCT WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) IN NO EVENT WILL IXSYSTEMS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE, LICENSEE’S AFFILIATES, OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE PRODUCT; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT IXSYSTEMS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) IN NO EVENT WILL IXSYSTEMS’ AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO IXSYSTEMS PURSUANT TO THIS AGREEMENT FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM; (C) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
You hereby acknowledge that you have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein by accepting this agreement or continuing to use this product.
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