Xsilva Systems Inc. ("XSILVA™")

           

END USER LICENCE AGREEMENT FOR Xsilva LightSpeed™ and/or Xsilva LightSpeed Web Store™ SOFTWARE PRODUCTS ("SOFTWARE PRODUCT")

 

IMPORTANT

PLEASE READ CAREFULLY BEFORE OPENING ANY XSILVA™ SOFTWARE PRODUCT

 

This XSILVA™ End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and XSILVA™  for XSILVA™'s SOFTWARE PRODUCTS identified above, which include the User's Guide, any associated SOFTWARE components, any media, any printed materials other than the User's Guide, and any "online" or electronic documentation ("SOFTWARE"). By installing, copying, or otherwise using either SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA with relation to such SOFTWARE PRODUCT. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT.

 

 

SOFTWARE PRODUCT LICENSE

 

 We agree and confirm that this Agreement is entered into by both parties for good and valuable consideration and that the preamble hereinabove forms part of this License Agreement.

 

1.           LICENSE.  All SOFTWARE is licensed, not sold.  XSILVA™ grants you a personal and non-exclusive limited license only for the use of the SOFTWARE PRODUCT, for which the proper fees have been paid. 

 

2.           PROPERTY OF XSILVA™.  The SOFTWARE is the confidential property of XSILVA™.  All right, title and interest, including without limitation, copyright, in and to the SOFTWARE is the sole and exclusive property of XSILVA™. For greater certainty, the SOFTWARE shall include all parts and aspects of the SOFTWARE, including without limitation any images, graphic user interface, design elements, order of operation, so-called "look and feel", data organization, ideas, concepts, photographs, animations, text and "applets" that are incorporated into the SOFTWARE, as well as all accompanying printed material of the SOFTWARE PRODUCT.

 

3.         GRANT OF LICENSE.   Each SOFTWARE PRODUCT is licensed as a single product. Its component parts may not be separated for use on more than one server. You may use each respective SOFTWARE PRODUCT on one single server and as many client workstations for which you have purchased licenses.  Under no other circumstances may any SOFTWARE PRODUCT be operated at the same time on more than the number of computers for which you have paid a separate license fee. After you have purchased the license for SOFTWARE, and have received the file enabling the registered copy, you are licensed to copy the SOFTWARE only into the memory of the number of computers corresponding to the number of licenses purchased, regardless of the computer network architecture on which the Software is stored and operated. XSILVA™ shall have the right, at any time, to audit and verify your compliance with this Agreement, including entry upon your premises to inspect your information technology and related records. 

 

4.         TERMINATION AND TRANSFER.  You may terminate this license at any time by destroying the original and all copies of the SOFTWARE in whatever form.  You may not transfer the SOFTWARE or the rights under this EULA. 

 

Without prejudice to any other rights, XSILVA™ may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE, and certify such destruction to XSILVA™ in writing within five (5) days of notice of termination by XSILVA™.

 

5.            RESTRICTIONS.  You may not modify, enhance, revise, alter, reverse engineer, de-compile, or disassemble any SOFTWARE, save where this prohibition is contrary to the law of any particular jurisdiction. You may not sublicence, rent, lease, or lend either the SOFTWARE or your rights under this EULA. You may not use the SOFTWARE to perform any unauthorized transfer of information, including without limitation, any transfer of files in violation of a copyright, or for any illegal purpose.  You shall have the right to make a single copy of the SOFTWARE for storage on a single computer provided that such copy is only used for backup or archival purposes, except that you may not reproduce the printed materials included in the SOFTWARE PRODUCT.  No proprietary or intellectual right, title or interest in or to any trademark, logo or trade name of XSILVA™ or its licensors is granted under this EULA.

 

6.         UPGRADES.  Future SOFTWARE that XSILVA™   labels as an upgrade shall replace and / or supplement the SOFTWARE that constitutes the basis of this EULA.  You may use the resulting upgraded SOFTWARE only in accordance with the terms and conditions of this EULA unless amended by the terms of that upgrade. 

 

7.         SUPPORT SERVICES. XSILVA™ may provide you with support services related to the SOFTWARE. Use of support services is governed by XSILVA™  polices and programs described in the user manual, in online documentation, and/or other XSILVA™ -provided materials, as they may be modified from time to time. Any supplemental SOFTWARE code provided to you as part of the support services shall be considered part of the SOFTWARE and subject to the terms and conditions of this EULA. With respect to technical information you provide to XSILVA™ as part of the support services, XSILVA™ may use such information for its business purposes, including for product support and development. XSILVA™ will not utilize such technical information in a form that personally identifies you. 

 

 

 

8.         INTELLECTUAL PROPERTY. The SOFTWARE is protected by Canadian and United States Intellectual property law and international treaty provisions governing intellectual property. You acknowledge that no title to the intellectual property in the SOFTWARE is transferred to you. You further acknowledge that title and full ownership rights to the SOFTWARE will remain the exclusive property of XSILVA™  and you will not acquire any rights to the SOFTWARE except as expressly set forth in this license. You agree that any copies of the SOFTWARE will contain the same proprietary notices which appear on and in the SOFTWARE, and that you shall not remove same.

 

9.            EXPORT RESTRICTIONS. You agree that you will not export or re-export the SOFTWARE to any country, person, entity, or end user subject to Canadian or U.S.A. export restrictions. Restricted countries currently include, without limitation, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.

 

10.       LIMITED WARRANTY.  XSILVA™ warrants to you that for a period of thirty (30) days from the date that you licensed, and paid for, the SOFTWARE (as evidenced by a copy of such payment receipt), the SOFTWARE will materially perform in accordance with the written materials that are enclosed with the SOFTWARE.  Except for the foregoing, the SOFTWARE PRODUCT is provided "AS IS". 

 

11.       CUSTOMER REMEDIES.  XSILVA™ and its suppliers' sole and absolute liability, and your exclusive remedy, under this EULA shall be, at XSILVA™ 's sole discretion, to either repair or to replace the SOFTWARE that does not meet XSILVA™ 's limited warranty stated in section 10, or refund the fee paid by you for such SOFTWARE upon receipt by XSILVA™  of the SOFTWARE with a copy of your payment receipt.  The limited warranty in section 10 is void if any failure of the SOFTWARE to operate has resulted from misuse, breach of this EULA, accident, abuse or misapplication by any person other than XSILVA™, or use of same in conjunction with other software.  Any replacement of the SOFTWARE will be warranted, on the same terms and conditions as stipulated herein, and for the same period as stipulated under Section 10.

 

12.       DISCLAIMER OF WARRANTY.  UNLESS SPECIFIED IN THIS EULA, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.

 

13.       LIMITATION OF LIABILITY.  IN NO EVENT SHALL XSILVA™, ITS DIRECTORS, OFFICERS, EMPLOYEES, XSILVA™ �S SUPPLIERS OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,INCIDENTAL DAMAGES, ARISING OUT OF, OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF XSILVA™  HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  In no event shall XSILVA™'s liability to you, whether in contract, tort (including negligence), or otherwise, exceed the greater of CDN$1.00 or the amount paid by you for the SOFTWARE under this EULA. You agree and confirm that: you shall not apply for or seek any punitive or exemplary damages against XSILVA™ in any connection with this EULA, the Software or the conduct of XSILVA™ ; and, the provisions of sections 10, 11, 12 and 13 have induced XSILVA™  to enter into this EULA and that XSILVA™  would not have entered into this EULA but for such provisions. Sections 10, 11, 12 and 13 shall survive any termination of this EULA for any reason whatsoever.

 

14.       U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE is 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 of DFARS 252.227-7013 or subparagraphs (c)(i) and (2) of the Commercial Computer SOFTWARE-Restricted Rights at 48 CFR 52.227-19, as applicable.  Manufacturer is Xsilva Systems Inc / 1583 St-Hubert, Montreal, QC, Canada. H2L 3Z1.

 

15.       GOVERNING LAW.  This EULA shall be governed and interpreted in accordance with the laws of the Province of Quebec, Canada. The parties submit, attorn and consent to the non-exclusive jurisdiction of the courts in Montreal, Quebec, Canada, save that in the event that XSILVA™ deems it to be in its interest to enforce this EULA in any other jurisdiction, it shall have the right to do so before such courts.

 

16.       SEVERABILITY.  If any term, clause, paragraph or article of this EULA is held to be invalid or unenforceable, for any reason, it shall not affect, impair, invalidate or modify the remainder of this EULA, but the effect shall be confined to the term, clause, sentence or article of this EULA judged to be invalid or unenforceable.

 

17.       ENFORCEABILITY.  The failure or delay of any party to enforce at any time or any period of time any of the provisions of this EULA shall not constitute a present or future waiver of such provisions nor the right of either party to enforce each and every provision.

 

18.       LANGUAGE.  The parties acknowledge that they require that this EULA be drawn up in the English language only.  Les parties reconnaissent qu�ils ont exig� que la pr�sente convention soit r�dig�e en langue anglaise seulement. 

 

19.       ENTIRE AGREEMENT.  This EULA is the entire EULA between you and XSILVA™ relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgement, or other communication between the parties relating to its subject matter during the term of this EULA.  No modification of this EULA will be binding, unless in writing and signed by an authorized representative of each party.

 

Should you have any questions concerning this EULA, or if you desire to contact XSILVA™ for any reason, please contact Xsilva Systems Inc by mail at: 1583 St-Hubert, Montreal, QC, Canada. H2L 3Z1, by telephone at: (514) 907-1801 or by electronic mail at:  info@xsilva.com.