END-USER License Agreement

END-USER License Agreement

 

X One

 
This agreement is made by and between X One, Inc., a Delaware corporation, and you (“You”).
 
X One, INC. DOES NOT RETAIN PERSONALLY IDENTIFIABLE INFORMATION. SEE PARAGRAPH 11 FOR DETAILS. YOUR EMPLOYER WILL COLLECT AND RETAIN DATA CONSISTENT WITH THE PRACTICES OF YOUR ORGANIZATION.

X One, Inc and You agree:
 

1.0. Definitions
 
1.1. You means the person using X One software.
 
1.2. Products means the concepts, ideas, programs (source and object) and manuals that are encompassed in the X One software. Also included are all modifications, variations and enhancements thereof, regardless of the source of such modifications, variations or enhancements.
 
1.3. Employer means the entity providing the email system being used with X One software.
 
2.0. License, Non-disclosure and Ownership
 
2.1. License. The X One brand application, whether downloaded electronically, on disk, CD-ROM, tape or other media or embedded in ROM (the “Software”), and related documentation are licensed to you by X One, Inc. for your personal use. You will not utilize or incorporate any of the Software into any other product. You own the media, if any, on which the Software is recorded and the written documentation, if any, but X One, Inc. retains title to the Software. Copying of the written documentation is prohibited without the express written permission of X One, Inc. This License allows you to use the Software and to make one copy of the Software in machine-readable form for backup purposes only. You must reproduce on such copy the X One, Inc. copyright notice and any other proprietary legends that were on the original copy of the Software. The Software is not designed or licensed for use in in-line control of equipment in hazardous environments such as operation of nuclear facilities, aircraft navigation or control, or direct life support machines.
 
2.2. Restrictions. The Software contains copyrighted material, trade secrets, and other proprietary information, and in order to protect them you may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. You may not use the Software for the purpose of determining how the Software functions nor to develop, create or improve products (whether software and/or hardware) which perform functions similar to the Software. If you wish to exercise any rights under Article 6.1 b of the EC Directive on the Legal Protection of Software, (Directive 91/250), you shall, prior to any such exercise, write to the Legal Department of X One, Inc. Except as set forth in paragraph 2.1, you may not modify, network (except as required for normal use of the Software), rent, lease, loan, sell, distribute, or create derivative works based upon the Software in whole or in part. You may not electronically transfer the Software from one computer to another over a network, except as required for normal use of the Software.
 
2.3. X One, Inc. owns Products. X One, Inc. retains ownership of all Products provided to You as covered in this License. You may not take or copy all or any part of the source code or resultant object modules or Products of object modules in any form.
 
2.4. Your Confidential Information and Ideas. X One, Inc. does not want to receive confidential or proprietary information from You regarding Products. Please note that any information or material provided to X One, Inc. regarding Products will be deemed NOT to be confidential. By providing X One, Inc. with any information or material regarding Products, You grant X One, Inc. an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute those materials or information, and You also agree that X One, Inc. is free to use any ideas, concepts, know-how or techniques regarding Products that You send to X One, Inc. for any purpose. However, X One, Inc. will not release Your name or otherwise publicize the fact that You submitted materials or other information to X One, Inc. unless: (a) X One, Inc. asks for and receives Your written permission to use Your name; or (b) X One, Inc. is required to do so by law.
 
2.5. Automatic Updates. You agree to the automatic update process described at the top of this EULA.
 
3.0. Beta Product. This paragraph 3 sets forth the terms and conditions that apply to you if you use “Beta Products”. Beta Products are products that X One, Inc. makes available for testing purposes. You agree that the value of a beta test derives in large part from the amount of use and from the completeness of reports concerning use, and you will be diligent in your efforts to test the Beta Products. You agree to promptly and completely report to X One, Inc. all useful information derived from testing of the Beta Products consistent with any test plan provided to you by X One, Inc. These tests are performed for the benefit of X One, Inc. When you are using a Beta Product, you must use the most current version of the Product that is being tested; any less-current Product must be updated and must not be used. You are licensed only to use the Beta Products and information you learn from testing for purposes of testing and reporting test results to X One, Inc. for the benefit of X One, Inc. and for no other purpose.
 
4.0. Termination. This License is effective until terminated. You may terminate this License at any time by destroying the Software and all copies thereof. This License will terminate immediately without notice from X One, Inc. if you fail to comply with any provision of this License. Upon termination you must destroy the Software and all copies thereof.
 
5.0. Export Law Assurances. You agree and certify that neither the Product nor any other technical data received from X One, Inc., nor the direct product thereof, will be exported outside the United States except as permitted by the laws and regulations of the United States.
 
6.0. Government End Users.
 
6.1. General. If this Software is acquired by or on behalf of a unit or agency of the United States Government, this provision applies. This Software (i) was developed at private expense, and no part of it was developed with government funds; (ii) is a trade secret of X One, Inc. which are subject to exemption of 5 USC Sec. 552(b)(4) for all purposes of the Freedom of Information Act; (iii) is “commercial computer software” subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (iv) in all respects is proprietary data belonging solely to X One, Inc.
 
6.2. DOD. For units of the Department of Defense (DOD), this Software is sold only with “Restricted Rights” as that term is defined in the DOD Supplement to the Federal Acquisition Regulations (“DFARS”) 52.227-7013 (c)(1)(ii), and use, duplication, or disclosure is subject to restrictions as set forth in subparagraph (c) (1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227-7013. Manufacturer: X One, Inc., 741 Kalthoff Common, Livermore, CA 94550.
 
6.3. GSA. If this Software was acquired under a GSA Schedule, the Government has agreed (i) to refrain from changing or removing any insignia or lettering from the Software that is provided and from producing copies of manuals or media (except one copy for backup purposes); (ii) that title to and ownership of this Software and any reproductions thereof shall remain with X One, Inc.; (iii) that use of this Software shall be limited to the facility for which it is acquired; and (iv) that if use of the Software is discontinued at the installation specified in the purchase/delivery order and the Government desires to use it at another location, it may do so by giving prior written notice to X One, Inc., specifying the type of computer and new location site.
 
6.4. Other Government Users. Government personnel using this X One, Inc. Software, other than under a DOD contract or GSA Schedule, are hereby on notice that use of this Software is subject to restrictions that are the same as, or similar to, those specified above.
 
7.0. Limited Warranty on Media and Physical Embodiment of the Documentation. To the extent You are receiving Products on media, X One, Inc. warrants that such media is free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase as evidenced by a copy of the receipt. X One, Inc. warrants that the physical embodiment of the written documentation is free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase as evidenced by a copy of the receipt. X One, Inc.’s entire liability and your exclusive remedy will be replacement of the media and/or written documentation that does not meet X One, Inc.’s limited warranty and is returned to X One, Inc. or an X One, Inc. authorized representative with a copy of the receipt. X One, Inc. will have no responsibility to replace media or written documentation damaged by accident, abuse, or misapplication. ANY IMPLIED WARRANTIES ON THE MEDIA AND/OR THE PHYSICAL EMBODIMENT OF THE WRITTEN DOCUMENTATION, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
 
8.0. Disclaimer of Warranty on Software. You expressly acknowledge and agree that use of the Software is at your sole risk. The Software and related documentation are provided “AS IS” and without warranty of any kind and X One, INC. EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. X One, INC. DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, X One, INC. DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY X One, INC. OR A X One, INC. AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT X One, INC. OR AN X One, INC. AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
 
9.0. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL X One, INC. BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF X One, INC. OR AN X One, INC. AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
 
10.0. Exclusions and Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF PARAGRAPHS 7, 8 AND 9 MAY NOT APPLY TO YOU.
 
11.0. Privacy.
 
11.1. How the Software Functions. The Software uses icons to visually identify email sent to You by others. In order to provide You with this identification, the Software collects information about: i) the sender that is embedded in the email and ii) the system environment (operating system version, browser type and email type) in which the plug-in runs and then transmits that information to X One, Inc. X One, Inc. then sends instructions to Your computer to display the icons, if any, associated with the sender. X One, Inc. maintains a logfile on your computer related to the system environment and the senders that send you email. This logfile improves the performance of the software and enables the display of icons when You are off-line. This log file is transmitted to X One, Inc. from time to time and is used by X One, Inc. to improve its services and to provide statistical information to senders of email. Senders may include Personally Identifiable Information in email headers which X One, Inc. delivers to respective Senders; for example, if Sender A includes a customer identification number in its email header, X One, Inc. may deliver that email header ONLY to Sender A. X One, Inc. does not retain any individual, non-aggregated Personally Identifiable Information gathered on behalf of senders and X One, Inc. does not use for its own purposes any individual, non-aggregated Personally Identifiable Information gathered on behalf of senders. In addition, X One, Inc. may, at the direction of Your Employer, (i) collect email data on behalf of Your Employer consistent with Your Employer’s policies; and (ii) provide the email data collected on behalf of Your Employer to Your Employer and Your Employer’s agents.  X One, Inc. does not retain Personally Identifiable Information gathered at the direction of your Employer beyond the period reasonably required to collect, process and transmit the Personally Identifiable Information to Your Employer.
 
11.2. Definition of Personally Identifiable Information. Personally Identifiable Information means any identifier that permits the physical or online contacting or identification of a specific individual.
 
12.0. Miscellaneous.
 
12.1. Controlling Law and Severability. This License shall be governed by and construed in accordance with the laws of the State of California, except that body of California law concerning conflicts of law. If for any reason a court of competent jurisdiction finds any provision of this License, or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force and effect.
 
12.2. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this License must be filed within one (1) year after such claim or cause of action arose or be forever barred.
 
12.3. Survival. Those provisions which, but their nature, survive the termination of this License shall continue in full and force and effect following termination.
 
12.4. Revisions of this License. X One, Inc. may modify the terms and conditions of this Agreement at any time by posting the substitute agreement here. X One, Inc. will maintain this link so that it will always be current. Your continued use of this Software constitutes Your agreement to any changes that X One, Inc. makes to this Agreement.
 
12.5. Complete Agreement. Subject to the provisions, if any, of a superseding agreement between Your Employer and X One, Inc., this License constitutes the entire agreement between the parties with respect to the use of the Software and related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. For purposes of this License the term “X One, Inc.” includes the entities under the control of X One, Inc.
 
Effective date: 12/1/13