End user agreement for XC Connect
IMPORTANT: YOU MAY NOT USE THE XCHANGE NETWORK, LLC (“XCHANGE NETWORK”) SOFTWARE TO WHICH THIS LICENSE AGREEMENT IS ATTACHED UNTIL YOU HAVE READ AND AGREED TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THE TERMS OF THIS AGREEMENT, PLEASE EXIT THIS PROGRAM AND RETURN THE COMPLETE SOFTWARE PACKAGE TO XCHANGE NETWORK. IF YOU AGREE TO THE TERMS OF THIS AGREEMENT, DO SO BY CLICKING ON THE APPROPRIATE STATEMENT AT THE END OF THIS AGREEMENT.
1. Grant of License. Subject to the provisions contained in this License Agreement and in return for payment of all required license fees (the “License Fees”) pursuant to the requirements of a separate agreement with Xchange Network, Xchange Network hereby grants to End User a non-exclusive, non-transferable, perpetual, license to Xchange Network software to which this license is attached (the “Software”). This license permits the End User to install a copy of the Software on the number of computers for which the End User has purchased server licenses. End User acknowledges that it has no right, title or interest in and to the Software, accompanying printed materials, or any copies thereof which the End User is permitted to make and that all such right, title and interest is owned by Xchange Network, LLC. End User may (a) make only one (1) copy of the Software for backup or archival purposes, provided such copy must contain all the original Software’s proprietary notices or (b) transfer the Software to a single hard disk, provided End User keeps the original solely for backup or archival purposes. End User agrees to use reasonable efforts to ensure that persons under End User’s direction and control shall abide by the terms of this Agreement and that, further, if End User becomes aware that the Software is being used in a manner not authorized by this Agreement, End User will immediately notify Xchange Network in writing.
2. Additional Restrictions. End User may not reverse engineer, decompile, disassemble or modify the Software nor attempt to gain knowledge of the source code of the Software in any manner whatsoever, unless End User has license to the source code under separate agreement with Xchange Network. End User will permit Xchange Network to audit End User’s compliance with this Agreement, as Xchange Network deems reasonably necessary. All rights not expressly granted to End User are reserved to Xchange Network.
3. Limited Warranty. For a period of thirty (30) days from the date of installation, Xchange Network warrants to the End User that the Software will substantially conform to the published specifications for the Software. During the warranty period, Xchange Network’s obligation will be to use its best efforts to correct or provide reasonable practical avoidance procedures for defects in the Software. CUSTOMER ACKNOWLEDGES THAT BECAUSE OF THE COMPLEX NATURE OF THE SOFTWARE, XCHANGE NETWORK CANNOT AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR WITHOUT INTERRUPTION.
XCHANGE NETWORK MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY APPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. Limitation of Liability. IN NO EVENT SHALL XCHANGE NETWORK BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, LOST PROFITS OR CLAIMS BY THIRD PARTIES, EVEN IF XCHANGE NETWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XCHANGE NETWORK SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES EXCEEDING THE PRICE PAID FOR THE SOFTWARE. THIS LIMITATION SHALL APPLY EVEN IF THE ABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
5. Maintenance and Support. Xchange Network warrants the Software in accordance with Section 3 above and upon expiration of the warranty period set forth therein, Xchange Network offers maintenance and support services. End User acknowledges that the Xchange Network warranty contained in Section 3 is limited in scope and duration and that it is imperative to purchase maintena
nce and support services from Xchange Network to assure receipt of updates and upgrades to the Software and other support services.
6. Confidential Information. End User acknowledged that (a) all components of the Software and the accompanying user documents are considered confidential and proprietary by Xchange Network, (b) the terms and conditions of this Agreement, including, without limitation, all fees and payment schedules, are considered proprietary and confidential by Xchange Network and (c) End User may have access to confidential information in connection with Xchange Network’s revision of any software implementation services (together, the “Confidential Information”). Confidential Information will not include, however, any information which is or becomes part of public domain through no fault of End User or that Xchange Network regularly gives to third parties without restriction on use of disclosure. End User agrees to hold all such Confidential Information in strict confidence and not to disclose it to others or use it in any way, commercially or otherwise, except as in exercising its right pursuant to this Agreement, to disclose it to End User employees, subcontractors, and partners, only on a need to know basis, not to allow any unauthorized person access to it, either before or upon expiration or termination of this Agreement.
7. Proprietary Rights. The components of the Software are subject to the copyrights and other proprietary rights of Xchange Network and its licensors. All rights, title and interest in and to the Software and the documentation shall remain the exclusive property of Xchange Network and its licensors and End User shall only have such rights as are set forth in this Agreement.
8. Third Party License. To the extent that operation of the Software requires the use of third party software, End User agrees to be responsible to provide and pay for such third party software.
(a) Cure. In the event of a determination that the Software or End User’s use of the Software in accordance with the terms of this Agreement infringes, or is likely to infringe, any proprietary right of any third party, Xchange Network shall have the option, at its expense, to (i) obtain for End User the right to continue using the infringing item or (ii) replace the infringing item or modify it so that it becomes non-infringing or (iii) terminate the license rights granted herein and grant End User a refund of the license fee, less reasonable depreciation based on use which shall in no event be less than the result of a straight line computation based on a five (5) year usable life.
(b) Indemnification. Xchange Network shall indemnify, defend and hold End User harmless from and against any and all liability, damage, loss or expense (including reasonable attorneys’ fees) arising from any claim, demand, action or proceeding initiated by any third party based upon infringement of a copyright or trade secret as a result of End Users’ use of the Software. It shall be a condition of this indemnification obligation that End User promptly (i) notify Xchange Network of any threat or initiation of any claim, demand, action or proceeding to which the indemnification obligation may apply and (ii) assist Xchange Network in the defense or settlement of the matter. Xchange Network shall have no obligation under this section for any alleged infringement based upon the modification of the Software by anyone other than Xchange Network or the use of the Software in combination with other software or other products or devises if such claim would have been avoided but for such modification or combination.
10. Default. Xchange Network may terminate this Agreement immediately upon the occurrence of a default. A default shall include, but not be limited to: (a) End User’s failure to pay any amount due to Xchange Network within ten (10) days after written notice to End User that the payment is delinquent; (b) the insolvency or bankruptcy of End User; and (c) the breach by End User of a
ny of the terms and conditions of this Agreement. Upon such termination, or if this Agreement is terminated for any other reason whatsoever, End User shall immediately return to Xchange Network the Software and destroy all copies of the Software residing on backup tapes and other electronic media, together with any other items supplied by Xchange Network to End User pursuant to this Agreement.
11. Failure to Exercise Rights. No failure or delay by Xchange Network in exercising any of its rights under this Agreement and no partial or single exercise of any right by Xchange Network shall be deemed to constitute a waiver of any right under this Agreement.
(a) Governing Law. This Agreement shall be governed by and construed under the laws of the State of Michigan. Any action arising out of or in connection with this Agreement shall be brought in the United States District Court for Eastern District of Michigan or the Washtenaw County Circuit Court in Ann Arbor, Michigan.
(b) Entire Agreement. This Agreement contains the complete and exclusive agreement between the parties, supercedes any and all prior oral or written communications, proposals and agreements and may not be waived or modified except by written agreement of the parties.
(c) Amendment; Waiver. No amendment or modification of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such amendment, modification, or waiver is sought. The terms and conditions hereof shall prevail, notwithstanding any variance from the terms and conditions of any purchase order submitted by End User with respect to the Software.
(d) Assignment. Neither this Agreement nor any rights granted hereunder may be assigned by End User without the prior written consent of Xchange Network. However, End User may assign this Agreement to (i) a subsidiary, affiliate or parent company; (ii) any partnership in which it has a majority interest; or (c) or to any entity which succeeds to all or substantially all of the assets, whether by merger, sale or otherwise. Any other attempt by End User to assign any rights, duties or obligations without such consent shall be void and without force or effect.
(e) Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the prevailing party will be entitled reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
(g) Relationship of the Parties. Xchange Network and End User shall be independent contractors and neither party is authorized to act as an agent or partner of or joint venture with the other party for any purpose.
(h) Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(i) Survival. The following sections of this Agreement shall survive termination or expiration, including, but not limited to, Sections 4, 6 and 8.
(j) Precedent of Documents. Unless End User has entered into a written license agreement with Xchange Network, all quotations, purchase orders, acknowledgements and invoices for the Software shall be subject to the provisions contained in this Agreement. The terms and conditions of this Agreement will control over any conflicting or inconsistent terms contained in any quotation, purchase order, acknowledgment of invoice.
(k) Taxes. All items described herein are exclusive of all federal, state, municipal or other government excise, sales, value added, use, personal property and occupational taxes, excises, withholding obligations, or other levies now in force or enacted in the future, and accordingly, all fees are subject to an increase equal to the amount of any tax Xchange Network may be required to collect or pay in connection with the Software, other than any tax on the net income of Xchange Network.