EULA
XeneX Software End User License Agreement
EFFECTIVE DATE: October 1st, 2021
READ THIS XeneX SOFTWARE END USER LICENSE AGREEMENT CAREFULLY, WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF XeneX'S SOFTWARE (DEFINED BELOW). BY INSTALLING AND/OR USING SUCH SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE ANY OF THE SOFTWARE. IF YOU ARE INSTALLING OR USING THE SOFTWARE ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE ACTUAL AUTHORITY TO AGREE TO THE TERMS AND CONDITIONS ON BEHALF OF SUCH EMPLOYER OR OTHER ENTITY. YOU FURTHER AGREE THAT XeneX MAY DIRECTLY ENFORCE THIS AGREEMENT AGAINST YOU IN THE CASE OF YOUR BREACH OF THIS AGREEMENT, AND YOU WAIVE ANY OBJECTION REGARDING XeneX'S STANDING TO DO SO.
This XeneX SOFTWARE END USER LICENSE AGREEMENT (this "Agreement") is entered into by and between CloudAccess, Inc. DBA XeneX ("XeneX") and the person, or entity on behalf of whom You are acting, as applicable ("You" or "Customer") that has downloaded any of XeneX's software to which this Agreement is attached or in connection with which this Agreement is presented to You via a URL link or otherwise (collectively, the "Software"). This Agreement is effective upon the commencement date of the License granted pursuant to Section 1.1 below (the "Effective Date").
1. SOFTWARE LICENSES AND RESTRICTIONS
1.1 License Grant. Subject to the terms and conditions of this Agreement, XeneX agrees to grant, and does hereby grant to You during the applicable Subscription Term, and for the restricted scope of this Agreement, a License to the Eligible Features and Functions of the Software that are applicable to the Subscription Level that You have purchased, for the quantity stated in the Order Form and for use solely with the specific Bundled Product for which You have purchased such Subscription.
1.2 Reservation of Rights; Restrictions. As between XeneX and You, XeneX owns all right title and interest in and to the Software and any derivative works thereof, and except as expressly set forth in Section 1.1 of this Agreement, no other license to the Software is granted to You by implication, estoppel or otherwise. You agree not to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software that XeneX has not made available in human-readable form or any portion thereof to human-readable form, except and only to the minimum extent permitted by applicable law, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 1.1 of this Agreement, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) except for Your internal business purposes, or as otherwise may be expressly permitted by the Subscription Agreement, use the Software for providing any time-sharing services, software-as-a-service or "SaaS" offering, service bureau services or as part of an application services provider or other service offering; (v) circumvent the limitations on use of the Software that are imposed or preserved by any License Key, (vi) alter or remove any marks and notices in the Software; or (vii) make available to any third party (other than Contractors) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of XeneX. You acknowledge that any access to XeneX-Hosted Infrastructure is provided solely for the purpose of facilitating updates to the threat detection capabilities of endpoint security. You agree not to access the XeneX-Hosted Infrastructure for any other reason including, without limitation, to (a) monitor the availability or performance of such XeneX-Hosted Infrastructure or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services; or (b) interfere with or disrupt the integrity or performance of any XeneX-Hosted infrastructure.
1.3 Third Party Open Source. The Software may contain or be provided with third party open source libraries, components, utilities and other open source software (collectively, "Third Party Open Source Software"), which Third Party Open Source Software may have applicable license terms as identified on a website designated by XeneX or otherwise provided with the Software or Documentation. Notwithstanding anything to the contrary herein, use of the Third Party Open Source Software shall be subject to the license terms and conditions applicable to such Third Party Open Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to You hereunder, but may contain additional rights).
1.4 Audit Rights. You agree that XeneX and Business Partner shall each have the right, unless waived in writing by the respective party and upon fifteen (15) days' notice to You, to audit Your use of the Software for compliance with any limitations on Your use of the Software that are set forth herein. You agree to provide the auditing party with the necessary access to the Software to conduct such an audit either (i) remotely, or (ii) if remote performance is not possible, at Your facilities, during normal business hours and no more than one (1) time in any twelve (12) month period. In the event any such audit reveals that You have used the Software in excess of the applicable quantitative limitations, You agree to promptly pay Business Partner an amount equal to the difference between the fees actually paid and the fees that You should have paid to remain in compliance with such quantitative limitations. This Section 1.4 shall survive for a period of two (2) years from the termination or expiration of this Agreement.
1.5 Reporting Excess Use. You agree to promptly notify Business Partner (with a copy to XeneX) in writing if You use a Subscription in excess of the quantity for which You have purchased such Subscription. You shall include in such notice the amount of excess use and the date on which such excess use began. Business Partner will invoice You for such excess use, adjusted on a pro rata basis from the date of first use and for the remainder of the applicable Subscription Term.
1.6 Product Usage Data. The Software may provide Product Usage Data (defined below) to XeneX. Product Usage Data does not include any of Your personal data or any content that You process or store in the Software in connection with Your use of the Software. Product Usage Data is processed in accordance with XeneX's Product Privacy Statement at https://www.xenexsoc.com/privacy-policy. XeneX uses Product Usage Data for security, support, product and operations management, and research and development. XeneX does not share Product Usage Data with third parties. "Product Usage Data" is statistical and other information about Your configuration and use of the Software, such as type and version, operating systems and environment, cluster statistics (e.g., node type and counts), performance (e.g., uptime and response times) and feature usage.
2. TERM AND TERMINATION
2.1 Term. Unless earlier terminated under Section 2.2 below, this Agreement shall commence on the Effective Date, and shall continue in force for the Subscription Term.
2.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material breach by the other party automatically and without any other formality, if such party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching party. Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that You intentionally breach the scope of the license granted in Section 1.1 of this Agreement, provided that XeneX reserves the right to retroactively waive such automatic termination upon written notice to You.
2.3 Post Termination or Expiration. Upon termination or expiration of this Agreement, for any reason, You shall promptly cease the use of the Software and Documentation and destroy (and certify to XeneX in writing the fact of such destruction), or return to XeneX, all copies of the Software and Documentation then in Your possession or under Your control.
2.4 Survival. The first sentence of Section 1.2, and Sections 2.3, 2.4, 3.3, 4, 5 and 6 (as any such Sections may be modified by Attachment 1, if applicable) shall survive any termination or expiration of this Agreement.
3. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES
3.1 Limited Performance Warranty. XeneX warrants that during the applicable Subscription Term, the Software will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, XeneX's sole obligation, and Your exclusive remedy shall be for XeneX to (i) correct any failure(s) of the Software to perform in all material respects in accordance with the Documentation or (ii) if XeneX is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, You may elect to terminate this Agreement. The warranty set forth in this Section 3.1 does not apply to the extent a non-conformity results from the applicable Software or any portion thereof: (a) being altered, except by or on behalf XeneX; (b) not being used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) being subjected to misuse, negligence, or accident; or (d) being used on equipment, products, or systems not meeting specifications identified by XeneX in the Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to XeneX during the applicable Subscription Term, and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by XeneX.
3.2 Malicious Code. XeneX warrants that at the time the Software is made available for download, it will be free of Malicious Code.
3.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND XeneX AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, XeneX AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, XeneX DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED. YOU UNDERSTAND AND AGREE THAT THE SOFTWARE AND DOCUMENTATION FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT ARE NOT DESIGNED OR INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, WEAPONS SYSTEMS, OR LIFE SUPPORT SYSTEMS.
4. LIMITATION OF LIABILITY
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR XeneX OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.2 Damages Cap. IN NO EVENT SHALL XeneX'S OR ITS LICENSORS' AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED ONE THOUSAND U.S. DOLLARS (US$1,000).
4.3 YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
5. GENERAL
5.1 Business Partners. Payment terms and taxes will be as separately agreed between You and Business Partner in the Subscription Agreement. XeneX is not responsible and shall not be liable for (i) the actions or omissions of Business Partner, (ii) any additional obligations not set out in this Agreement and which Business Partner may have agreed to provide to You, and/or (iii) any products or services that Business Partner supplies to You under any separate agreements between the Business Partner and You, including the Bundled Product and any related support under the Subscription Agreement.
5.2 Export Control. You acknowledge that the Software and technologies related thereto are subject to the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control. You are now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any XeneX goods, software or technology or disclose any XeneX software or technology to any person contrary to such laws or regulations. You acknowledge that remote access to the Software may in certain circumstances be considered a re-export of such Software, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. You represent that You are not sanctioned or prohibited by the U.S. government or any other public authority from entering into this Agreement or receiving the Software or related technology on any basis including, but not limited to: (i) appearance on the List of Specially Designated Nationals and Blocked Persons or the Consolidated Sanctions List administered by the U.S. Department of the Treasury's Office of Foreign Assets Control, or the Denied Persons List, Entity List or Unverified List administered by the Commerce Department's Bureau of Industry and Security; (ii) being owned or controlled, directly or indirectly, by any one or more person covered by foregoing clause (i); or (iii) acting on behalf of any person covered by foregoing clause (i) or (ii).
5.3 Assignment. You may not assign this Agreement, in whole or in part, without the prior written consent of XeneX. Any assignment in violation of this Section 5.3 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns. Nothing will restrict XeneX from subcontracting its obligations under this Agreement to any third parties.
5.4 Governing Law and Jurisdiction. This Agreement will be exclusively governed by the laws of the State of California, and applicable Federal Laws of the United States, without regard to its conflicts of law principles. The United Nations Convention on the International Sale of Goods will have no application to this Agreement. The parties agree to submit to the exclusive jurisdiction of the courts located within the County of Los Angeles, California to resolve any legal matter arising from this Agreement. Notwithstanding this, Customer agrees that XeneX will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and costs from the other party.
5.5 Arbitration of Claims. Any disputes or controversy or claim arising out of or relating to this Agreement or its enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with any of its provisions, shall be determined by binding arbitration. The arbitration proceedings shall be held and conducted by a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association (the “AAA Rules”), as modified by this Agreement. Such arbitration shall occur in Los Angeles, California, at the offices of AAA, and shall be initiated by any party in accordance with the AAA Rules. The demand for arbitration shall be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations. California Code of Civil Procedure Section 1283.05, which provides for certain discovery rights, shall apply to any such arbitration, and such Code Section is incorporated herein by reference. The arbitrator shall decide discovery issues. Post-hearing briefs shall be permitted. The arbitrator shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of this Agreement, or to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction. The Parties may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. However, the merits of any action that involves such provisional remedies or injunctive relief, including, without limitation, the terms of any permanent injunction, shall be determined by arbitration under this paragraph. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the Parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses).
5.6 Future Features and Functions. You understand and agree that any features or functions of services or products referenced on any XeneX website, or in any presentations, press releases or public statements, which are not currently available or not currently available as a generally available (i.e., GA) release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for XeneX's products and services remains at XeneX's sole discretion. Accordingly, You agree that You are purchasing a Subscription based solely upon features and functions of the Software that are currently available as of the Effective Date, and not in expectation of any future feature or function.
5.7 Miscellaneous. This Agreement, including Attachment 1 hereto, which is hereby incorporated herein by this reference, completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if You issue any purchase order or similar document in connection with the purchase of a Subscription (whether to XeneX or to a Business Partner) and/or obtaining of License to the Software, You will do so only for Your internal, administrative purposes and not with the intent to provide any contractual terms. This Agreement may not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of XeneX and You, by duly authorized representatives. If any provision hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.
6. DEFINITIONS
The following terms have the meanings ascribed:
6.1 "Affiliate" means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where "control" means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
6.2 "Bundled Product" means the computer hardware and/or software products of a Business Partner for which XeneX has authorized the Business Partner to bundle and distribute the Software and to sell Subscriptions, in each case, as part of and for use with such computer hardware and/or software products.
6.3 "Business Partner" means an organization authorized by XeneX, directly or indirectly, to sell Subscriptions solely as part of and solely for use in a Bundled Product.
6.4 "Contractor" means any third party contractor performing services on Your behalf.
6.5 "Documentation" means the end user documentation published at https://www.xenexscoc.com by XeneX.
6.6 "XeneX-Hosted Infrastructure" means, where the Eligible Features and Functions include endpoint security, the XeneX-hosted infrastructure or related data, systems, or networks that interface with the endpoint security components of the Software.
6.7 "Eligible Features and Functions" means those features and functions of the Software that are eligible for use with respect to the Subscription Level You purchase. A list of Eligible Features and Functions that correspond to each version of Software may be found at https://www.xenexsoc.com. XeneX may from time to time modify the Eligible Features and Functions of the Subscription Level(s) of the Software during the Subscription Term, but shall not materially reduce the functionality thereof.
6.8 "License" means a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Your internal business operations to (i) install and use, in object code format, the Software solely as part of and solely for use in the Bundled Product, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that You must include on such copies all marks and notices; (iii) permit Your Contractors and Affiliates to use the applicable Software and Documentation as set forth in (i) and (ii) above, provided that such use by Contractors and Affiliates must be solely for Your benefit, and You shall be responsible for all acts and omissions of such Contractors and Affiliates in connection with their use of the Software that are contrary to the terms and conditions of this Agreement.
6.9 "License Key" means an alphanumeric code that enables use of software.
6.10 "Malicious Code" means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of Your computer programs or computer systems or destroy or damage data. For clarity, Malicious Code shall not include any software bugs or errors, or any standard features of functions of the Software and/or any License Key that are intended to enforce the temporal and/or other limitations on the scope of the use of the Software to the scope of the License granted to You.
6.11 "Order Form" means the ordering document pursuant to which You purchased Your Subscription and agreed to the terms and conditions of the Subscription Agreement.
6.12 "Subscription" means Your right to receive a License to the Software solely as part of and solely for use in the Bundled Product.
6.13 "Subscription Agreement" means a legally enforceable agreement between You and a Business Partner, under which You purchase a Subscription.
6.14 "Subscription Level" means the level of Subscription You have purchased for the Software included in the Bundled Product. The Subscription Level You have purchased determines the specific Eligible Features and functions that You are entitled to use.
6.15 "Subscription Term" means the period of time for which You have purchased a Subscription, including any renewals.