1. Grant of License
XQTING ("Supplier") grants to Customer a non-exclusive, non-transferable license to install, use and execute the Software in object code form on a per-license basis ("Software License"). The Software License shall become effective upon delivery of the Software and shall remain in force unless terminated due to expiration or breach of these license grant terms or confidentiality. This right does not include permission to grant sub-licenses or otherwise transfer such rights. Customer may make copies of the Software for archival purposes only, provided that it retains or affixes the equivalent of Supplier's proprietary legend and copyrights to the copy. Additionally, the Customer may make several copies of the system documentation, excluding training manuals and materials, provided that they are for internal use only. Customer may not reverse engineer, disassemble or otherwise translate the Software License provided pursuant to this Agreement. Supplier retains exclusive title to and all rights to the Software. The Customer acknowledges that the Software and documentation are the property of Supplier and that the only right that the Customer obtains to the Software is the right of use in accordance with the terms of this Agreement.
2. Unauthorized use
Customer accepts that by installing and/or by using the Software, Customer has purchased the Software from Supplier or an authorized distributor of Supplier. Customer commits that upon simple request of Supplier, Customer shall deliver proof of purchase and payment. Customer's non-compliance with such request is a breach of this Agreement by Customer. In case Customer cannot deliver proof of purchase and payment, Customer agrees to pay a penalty of one percent of the software recommended retail price per day the Software has been used. Customer further agrees to stop using the Software immediately upon simple written request of Supplier. In case Customer does not stop using the Software after having received such request from Supplier, the penalty is two percent per day of the Software recommended retail price per day. To assist Supplier in the performance of its duties under this Agreement, to verify any license reporting requirements of Customer, and in the further protection of its proprietary rights, Customer hereby authorizes a Supplier representative to enter Customer's premises, physically or electronically, and inspect the Software License at any reasonable time with prior notice.
3. Software title
No title to or ownership of the Software or any of its parts, the information it contains or in any applicable rights therein, such as patents, copyrights and trade secrets, is transferred to Customer. Customer agrees to treat Software as Confidential Information and shall use the same degree of care used by Customer to protect its own Confidential Information. Except as set forth herein, or as may be permitted in writing by Supplier, Customer will not: (i) provide, transmit or otherwise make available, the Software or any part or copy thereof to any third party , (ii) reverse engineer, reverse compile or reverse assemble the Software in whole or in part, (iii) rent, lease or otherwise commercialize the Software in any matter and (iv) create derivative works based upon the Software in whole or in part. Customer will not modify, adapt, translate or otherwise alter the Software.
4. No Warranties
THE SOFTWARE IS PROVIDED BY SUPPLIER AND ACCEPTED BY THE CUSTOMER "AS IS" AND SUPPLIER GIVES TO THE CUSTOMER NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE OR RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING, SUPPLIER DOES NOT WARRANT THAT THE SOFTWARE OR THE OPERATION THEREOF IS OR WILL BE ERROR FREE OR UNINTERRUPTED OR MEETS OR WILL MEET THE CUSTOMER'S REQUIREMENTS, AND SUPPLIER GIVES NO IMPLIED WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WITH REGARD TO MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE AND WHETHER ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
5. No Liabilities
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SUPPLIER'S TOTAL LIABILITY FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL REMEDY.
6. Injunctive relief
Customer acknowledges that remedies at law may be inadequate to provide Supplier with full compensation in the event of Customer's material breach of any: (i) license grant hereunder or (ii) intellectual property rights of Supplier, and that Supplier shall therefore be entitled, without bond or other security obligation, to seek injunctive relief in the event of any such material breach.
7. Restricted Rights.
If the Software is acquired by or for the U.S. Government, then it is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, or clause 18-52.227-86(d) of the NASA Supplement to the FAR, as applicable, or any successor regulations.
8. Full agreement
This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to Supplier licensing the Software to Customer and contains all the covenants and agreements between the parties with respect to the licensing of such Software. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding.
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