Terms & Conditions
IMPORTANT - READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING THIS SOFTWARE. BY DOWNLOADING OR USING THIS SOFTWARE, WHETHER YOU OBTAINED THIS SOFTWARE ON YOUR OWN BEHALF OR ANOTHER INDIVIDUAL OR ENTITY OBTAINED IT FOR YOU, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT, YOU UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU HAVE OBTAINED THIS SOFTWARE LICENSE ON BEHALF OF YOUR EMPLOYER, BY DOWNLOADING OR USING THIS SOFTWARE YOU ALSO REPRESENT THAT YOU HAVE AUTHORITY TO BIND YOUR EMPLOYER TO THE TERMS AND CONDITIONS HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT, DO NOT DOWNLOAD OR USE THIS SOFTWARE AND PROMPTLY EXIT THIS PAGE.
- Definitions. In this Software License Agreement (the "Agreement"), the following definitions shall apply:
"Software" means software, firmware, programs, screen savers, ringtones, sounds (and beta, trial or upgraded versions of the foregoing) and related data and services available for Download to Devices; the Software is offered by XIMAD and is to be used in accordance with the XIMAD's software license and use agreements.
"Carrier" means the wireless telecommunications or Internet service provider providing you telecommunications and/or internet services for the Device or in connection with its use.
"Device" means your electronic communication or computing device.
"Download" and variants thereof refer to the transmission of Software to you through the Internet, over-the-air or otherwise.
"XIMAD" means the developer of the Software available by Download.
"Website" means www.ximad.com, and any XIMAD proprietary website.
"You or you" mean the individual or organization who downloads or uses the Software and/or who intends to purchase a license or licenses to the Software (as defined herein);
- Limited Term and Use. You may not use the Software beyond its intended scope. You may install and use only one copy of the Software on your mobile device or computer. You may not modify or alter the Software for any reason, including but not limited to modifications to increase the scope of its use or otherwise. Further, you may not use any device, process or computer program that increases, directly or indirectly, the scope of use of the Software.
- Title to Software. You acknowledge that the Software, all enhancements, corrections and modifications to the Software (regardless whether made by XIMAD , you or anyone else), all copyrights, patents, trade secrets, trademarks or other intellectual property rights protecting or pertaining to any aspect of the Software (or any enhancements, corrections or modifications) and the Documentation, are and shall remain the sole and exclusive property of XIMAD. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
- Purchase. XIMAD reserves the right to limit quantities of Software licenses purchased. Software licenses may be purchased only for the personal use of the individuals Downloading them or the internal business use of the organizations represented by such individuals. In no event may any Software be purchased for resale.
- Restrictions. You have no right to use, make, sublicense, modify, transfer, rent, lease, sell, display, distribute or copy originals or copies of any Software or Documentation, or to permit anyone else to do so. You may not transmit the Software over any network or between any devices. You may transfer the Software to another cellular telephone or computing device you own (e.g. a new Device) provided that you only use the Software on one cellular telephone or computing device at a time. You may not assign or transfer your rights under this Agreement or your rights to the Software without the prior written consent of XIMAD. Upon any such transfer or assignment, you must transfer all copies of the Software and Documentation and assignee must provide its written agreement to all the terms of this Agreement to XIMAD.
- Proprietary Rights. You shall not remove any patent, copyright or trademark or other intellectual property notices that may appear on any part of the Software or the Documentation. You acknowledge that the Software, in its source code form, contains valuable trade secrets belonging to XIMAD. You may not reverse engineer, unencrypt, decompile, disassemble or otherwise translate the Software or allow anyone else to do so. You authorize XIMAD or its designee to audit your compliance with this Agreement, as XIMAD deems reasonable. You acknowledge that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in this Agreement and that any such breach or violation may leave XIMAD without an adequate remedy at law. You therefore agree that, in addition to any other remedies available at law, in equity or under this Agreement, XIMAD shall be entitled to obtain temporary, preliminary and permanent injunctive relief, without bond, from a court of competent jurisdiction to restrain any such breach or violation.
- Maintenance and Support; Updates. You are not entitled to any maintenance or support for the Software or any upgrades or enhancements of such Software under this Agreement. However, any and all upgrades and enhancements made available to you shall become part of the Software and become subject to this Agreement.
- Indemnifications. You shall indemnify, defend and hold harmless XIMAD, Carriers, and their respective directors, officers, employees and agents from and against any and all loss, cost, liability or expense (including, but not limited to reasonable attorney's fees and expenses) arising out of or relating to (i) the Download, purchase, and/or use of any Software; (ii) any inaccurate, incomplete, or invalid information you provide to XIMAD, and/or Carriers, and/or (iii) any breach by you of this Agreement.
- Governmental Authorizations; Third Party Charges. You are solely responsible for obtaining any authorizations applicable to your Download, purchase, and use of the Software which may be required by any federal, state, or local government agency of the United States or other jurisdiction of purchase. You, and not XIMAD, are responsible for any and all wireless access, messaging, and/or Carrier charges, including without limitation any relating to Downloads or automatic updating of the Software.
- EXCLUSION; LIMITATION OF LIABILITY. IN NO EVENT WILL XIMAD AND OR THE CARRIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PROGRAM, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF SUCH CLAIMS INCLUDE ALLEGATIONS OF THE NEGLIGENCE OF XIMAD AND/OR THE CARRIERS, AND/OR EVEN IF XIMAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XIMAD'S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF FIFTY AND NO/100 DOLLARS ($50.00). BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NO ACTION MAY BE BROUGHT FOR ANY BREACH OF THIS AGREEMENT OR RELATING TO THE SOFTWARE MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- EXPORT COMPLIANCE. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND/OR DOCUMENTATION WITHOUT CONSENT OF XIMAD AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. YOU AGREE TO COMPLY WITH ALL EXPORT LAWS, REGULATION OR REQUIRMENT WHICH MAY APPLY TO YOUR DOWNLOAD AND/OR USE OF THE SOFTWARE.
- Termination. You may terminate this Agreement at any time by destroying or returning to XIMAD all copies of the Software and Documentation in your possession or under your control. XIMAD may terminate this Agreement if the XIMAD finds that you have violated any of the terms of this Agreement. Upon termination of this Agreement, you will immediately discontinue use of the Software, destroy or return to XIMAD all copies of the Software and Documentation (in whatever form they exist), and certify in writing that all known copies, including backup copies, have been destroyed. All provisions relating to confidentiality, proprietary rights, and non-disclosure shall survive the termination of this Agreement.
- Governing Law and General Terms. This Agreement shall be construed, interpreted and governed by the laws of the State of California without regard to conflicts of law provisions thereof. The exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court. This Agreement shall constitute the entire agreement between the parties hereto relating to your Download, use and/or purchase of the Software license(s). Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably affect the intention of the parties.