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Terms & Conditions - XpoLog Ltd.
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE OPENING THE PACKAGE CONTAINING THE PROGRAM CD-ROM, THE COMPUTER SOFTWARE THEREIN, AND THE ACCOMPANYING USER DOCUMENTATION (THE "PROGRAM"). THE PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD). BY OPENING THE PACKAGE CONTAINING THE PROGRAM, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT, YOU SHOULD PROMPTLY RETURN THE PACKAGE IN UNOPENED FORM, AND YOU WILL RECEIVE A REFUND OF YOUR MONEY. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU AND XPOLOG LTD. (REFERRED TO AS "LICENSOR"), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. 1. License Grant. Licensor hereby grants to you, and you accept, a nonexclusive license to use the Program CD-Rom and the computer programs contained therein in machine-readable, object code form only (collectively referred to as the "Software"), and the accompanying User Documentation, only as authorized in this License Agreement. The Software may be used only on a single computer owned, leased, or otherwise controlled by you; or in the event of the inoperability of that computer, on a backup computer selected by you. Neither concurrent use on two or more computers nor use in a local area network or other network is permitted without separate authorization and the payment of other license fees. The Software may be used only on a computer that contain Company “System”; Software will not be used to access data externally to the “system”. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement. You agree that you may not reverse assemble, reverse compile, or otherwise translate the Software. Upon loading the Software into your computer, you may retain the Program CD-Rom for backup purposes. In addition, you may make one copy of the Software on a second set of CD-Rom for the purpose of backup in the event the Program CD-Rom is damaged or destroyed. You may make one copy of the User's Manual for backup purposes. Any such copies of the Software or the User's Manual shall include Licensor's copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Program or any portions thereof may be made by you or any person under your authority or control. 2. Licensor's Rights. You acknowledge and agree that the Software and the User's Manual are proprietary products of Licensor protected under U.S. copyright law and any other applicable copyright laws. You further acknowledge and agree that all right, title, and interest in and to the Program, including associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to you an interest in or to the Program, but only a limited right of use revocable in accordance with the terms of this License Agreement. Should you decide to transmit to Licensor website by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, you agree such submissions are unrestricted and shall be deemed non-confidential and you automatically grant Licensor and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same. 3. License Fees. The license fees paid by you are paid in consideration of the licenses granted under this License Agreement. 4. Term. This License Agreement is effective upon your opening of this package and shall continue until terminated. You may terminate this License Agreement at any time by returning the Program and all copies thereof and extracts therefrom to Licensor. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to return to Licensor the Program and all copies and portions thereof. 5. Support. Licensor shall provide the support as contemplated below for so long as Company pays the support fees noted in Exhibit A to this License Agreement. Licensor will provide support to the Company as follows between [Sunday-Thursday] between the hours [9:00 – 18:00]: • Company may submit support requests by email or telephone. • Licensor warrants that it will provide a response to all requests within -one business day of receipt from Company. o The Licensor will provide support by phone or via email. o Licensor will make all bug fixes and updates available to the Company as they become available. This does not include upgrades to new versions of the Software. Upgrades to new versions of the Software are addressed in the price list attached to this License Agreement. 6. Limited Warranty. THE PROGRAM, AND THE SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS," AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SUCH FILES. LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, OR ANY CLAIMS BY A THIRD PARTY. 7. Limitation of Liability. LICENSOR WILL NOT BE LIABLE FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY YOU OR OTHERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE PRODUCTS, FOR ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR OR ANY AFFILIATE OF LICENSOR BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO YOU (INCLUDING WITHOUT LIMITATION, ANY PAYMENT FOR LOST BUSINESS, FUTURE PROFITS, LOSS OF GOODWILL, REIMBURSEMENT FOR EXPENDITURES OR INVESTMENTS MADE OR COMMITMENTS ENTERED INTO, CREATION OF CLIENTELE, ADVERTISING COSTS, TERMINATION OF EMPLOYEES OR EMPLOYEES SALARIES, OVERHEAD OR FACILITIES INCURRED OR ACQUIRED BASED UPON THE BUSINESS DERIVED OR ANTICIPATED UNDER THIS AGREEMENT), WHETHER FORESEEABLE OR NOT, CLAIMS UNDER TERMINATION, PROTECTION, NON-RENEWAL OR SIMILAR LAWS, FOR ANY CAUSE WHATSOEVER WHETHER OR NOT CAUSED BY LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT FOR LIABILITY FOR PERSONAL INJURY ARISING FROM LICENSOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL LICENSOR’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE AMOUNTS PAID BY OEM IN ACCORDANCE WITH THIS AGREEMENT IN THE TWO-YEAR PERIOD NEXT PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN OR IN LICENSOR’S LIMITED WARRANTY ACCOMPANYING DELIVERY OF THE PRODUCTS FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 8. Trademark. XpoLog is a registered trademark of Licensor. No right, license, or interest to such trademark is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademark. 9. Governing Law. This License Agreement shall be construed and governed in accordance with the laws of the State of Israel, without reference to its conflicts of laws provisions. All disputes arising out of this agreement shall be resolved in courts of NY USA. 10. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation. 11. Sever ability. Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. 12. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. 13. U.S. Government Restricted Rights. The Software and related documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Manufacturer for such purpose is XpoLog Ltd.