LICENSE AGREEMENT AND WARRANTY FOR THE ENCLOSED SOFTWARE AND RELATED DOCUMENTATION – READ BEFORE INSTALLING SOFTWARE.
IMPORTANT: THIS AGREEMENT CONTAINS THE LICENSE TERMS AND CONDITIONS FOR LICENSED SOFTWARE AND RELATED DOCUMENTATION. INSTALLING THE SOFTWARE PACKAGE YOURSELF OR THROUGH A THIRD PARTY SIGNIFIES YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST PROMPTLY RETURN THE SOFTWARE PACKAGE AND DELETE ANY SOFTWARE FILES ACCESSED BY YOU OR A THIRD PARTY ON YOUR BEHALF FROM ANY AND ALL COMPUTER MEMORY INTO WHICH SUCH SOFTWARE HAS BEEN LOADED OR STORED. WHEN USED IN THIS
AGREEMENT THE WORD "XEROX" SHALL MEAN XEROX CORPORATION, ITS OPERATING COMPANY SUBSIDIARY OR AFFILIATE FROM WHICH YOU OBTAINED THE XEROX PRODUCT WITH WHICH THE SOFTWARE IS TO BE USED (the "Equipment"), UNLESS YOU OBTAINED THE EQUIPMENT FROM AN AUTHORIZED DEALER, AGENT, CONCESSIONAIRE OR DISTRIBUTOR, IN WHICH CASE "XEROX" SHALL MEAN XEROX CORPORATION, ITS OPERATING COMPANY, SUBSIDIARY OR
AFFILIATE FROM WHICH THE ENTITY THAT SOLD YOU THE EQUIPMENT ACQUIRED IT.
IF YOU ARE INSTALLING THE SOFTWARE ON BEHALF OF THE EQUIPMENT END USER YOU MUST AGREE THAT YOU ARE ACTING AS AN AGENT OF THE END USER CUSTOMER BEFORE PROCEEDING. AS AGENT FOR THE END USER YOU HEREBY AGREETHAT YOU HAVE EITHER; 1)READ AND AGREED TO THE SOFTWARE LICENSE TERMSAS AUTHORIZEDBY THE END USER, OR 2) YOU HAVE MADE THE END USER AWARE OF THE LICENSE TERMS AND THE END USER HAS EXPLICITLY ACCEPTED THEM.
1. GRANT OF LICENSE
Xerox hereby grants you a non-exclusive, non-transferable license to use the software and related documentation ("Software") enclosed in this package with the Equipment, for as long as you are current in the payment of any indicated software license fees (including any annual renewal or maintenance fees) on the following terms and conditions.
You may install the Software on the Equipment or if applicable, on equipment for use only in conjunction with the Equipment. When networked, other users on the network may access and use the Software in conjunction with the Equipment.
3. OWNERSHIP, COPYING, MODIFICATION AND CONFIDENTIALITY
3.1. Xerox owns or is otherwise entitled to grant a license in the Software as set forth herein.
3.2. No title to or ownership of the Software or any proprietary right therein is transferred to you.
3.3. You may, subject to Section 3.4 below, make one copy of the Software in whole or in part only for that purpose expressly permitted in Section 2 above and for back-up. Such permitted copy shall include in readable format any copyright and other proprietary notices contained on the original Software.
3.4. You may copy the related documentation for use only in conjunction with the Equipment.
3.5. You may not distribute, alter, create derivatives of, or modify nor cause or allow others to alter or modify the Software.
3.6. You agree not to provide or otherwise make available the Software to anyone other than your employees and agents directly concerned with the licensed use of the Software.
3.7. The Software is protected by copyright and other proprietary rights of Xerox and/or a third party. You may be held directly responsible by such third party for an infringement of such rights by you.
3.8. You agree not to (1) copy except as allowed Section 3.3, reverse engineer, decompile or disassemble the Software for any purpose whatsoever; (2) activate any software delivered with or within the Equipment in an unactivated state; or, (3) allow others to engage in same, except to the extent permitted by law.
3.9. Software may contain, or be modified to contain, computer code capable of automatically disabling proper operation or functioning of the Equipment. Such disabling code may be activated if: (a) Xerox is denied reasonable access to the Software to periodically reset such code; (b) you are notified of a default under any term of this Agreement; or, (c) your license is terminated or expires.
3.10. You agree not to export or re-export the Software in any form without, in the case of a customer in the United States, first obtaining all United States government licenses, and in the case of a customer outside of the United States, all relevant foreign government licenses, required by law, and then only upon the export of the Equipment.
4. TRANSFER OF LICENSED SOFTWARE
If you transfer possession of the Equipment, Xerox will offer the transferee a license to use the Software on or with it, subject to Xerox' then applicable terms and license fees, if any, and provided the transfer is not in violation of Xerox' rights.
5. DIAGNOSTIC SOFTWARE.
Software used to maintain the Equipment and/or diagnose its failures or substandard performance (collectively ìDiagnostic Softwareî) may be embedded in, reside on, or may be loaded onto the Equipment. The Diagnostic Software and method of entry or access to it constitute valuable trade secrets of Xerox. Title to the Diagnostic Software shall at all times remain solely with Xerox and/or Xerox's licensors. You agree that (a) your acquisition of the Equipment does not grant you a license or right to use the Diagnostic Software in any manner, and (b) that unless separately licensed by Xerox to do so, you will not use, reproduce, distribute, or disclose the Diagnostic Software for any purpose (or allow third parties to do so). You agree at all times (including subsequent to the expiration of this Agreement) to allow Xerox to access, monitor, and otherwise take steps to prevent unauthorized use or reproduction of the Diagnostic Software.
6 LIMITED WARRANTY
6.1 Xerox warrants that the Software shall substantially conform to Xerox' User Manual or other Xerox documentation supplied at delivery to the original Customer. Xerox does not warrant that the operation of the Software will be uninterrupted or error free, or that it will meet your needs.
6.2 In the event the Software does not conform to the limited warranty contained in Section 6.1 above, your exclusive remedy is to notify Xerox within ninety (90) days of the date of delivery, and Xerox' or its supplier's sole obligation shall be to use all reasonable efforts to provide a work-around which avoids the nonconformity or to provide you with Software which does substantially conform to the Xerox User Manual or other Xerox supplied documentation.
6.3 XEROX GRANTS NO OTHER WARRANTIES ON THE "SOFTWARE", EXPRESS OR IMPLIED, WHETHER CREATED BY STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. XEROX FURTHER DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS MADE BY PERSONS OTHER THAN XEROX (INCLUDING, BUT NOT LIMITED TO, XEROX SOFTWARE DEALERS, AGENTS, CONCESSIONAIRES OR DISTRIBUTORS).
6.4 The express warranties set forth above shall be void if you fail to properly use the Software in the appropriate environment as specified in the Xerox supplied documentation or if the Software is modified or altered in any fashion.
7. PATENT AND COPYRIGHT INDEMNIFICATION
Xerox will defend and indemnify you if the Software is alleged to infringe, in the United States, any patent, trade secret, or copyright, if you promptly notify Xerox in writing of any alleged infringement, allow Xerox to direct the defense of such claim, and cooperate with Xerox. All notices should be sent to the Xerox Office of General Counsel, P.O. Box 1600, Stamford, Connecticut 06904. Xerox is not responsible for any non-Xerox litigation expenses or settlements unless Xerox pre-approves them in writing. To avoid infringement, Xerox may, at its option, and at no charge to you, obtain a license, or modify, or substitute an equivalent of, or remove the Software. If Software is removed by Xerox for this reason, any designated license fees paid by you will be fully refunded; if no portion of the amounts paid to Xerox within the transaction in which the Software was acquired was designated as a license fee for the Software, Xerox shall refund that portion of the amounts paid that Xerox reasonably designates as associated with the Software's acquisition. Xerox is not liable for any infringement related liabilities outside of the scope of this section including, but not limited to, Software being made or modified (by Xerox or others, including you} to your specifications, or being used or sold in combination with equipment, software, or supplies not provided by Xerox.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL XEROX OR ITS SUPPLIERS BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT LIMITATION, LOSS OF DATA) IN ANY WAY ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE "SOFTWARE", EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL XEROX' DIRECT DAMAGES TO YOU EXCEED THE TOTAL LICENSE FEE ACTUALLY PAID BY YOU FOR SUCH “SOFTWARE”.
Xerox may terminate your license for the Software (i) immediately if you no longer use or possess the Equipment or are a lessor of the Equipment and your first lessee no longer uses or possesses it or (ii) upon the termination of any agreement under which you have rented or leased the Equipment, (iii) notice in the event of a material breach by you. If terminated as provided above, you shall return to Xerox all copies of the Software, and remove same from all equipment into which such Software may have been loaded by you.
10. GOVERNING LAW
This License Agreement will be governed by the laws of the State of New York, USA or if you acquire the Software outside the USA, by the laws of the country in which you acquired the Equipment, excluding its conflict of laws provisions.
Some jurisdictions do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages, so the above disclaimers, limitations or exclusions, in whole or in part, may not apply to you.
11. ENTIRE AGREEMENT
This License Agreement is the entire agreement between Xerox and you pertaining to the Software and supersedes all proposals or prior and contemporaneous agreements or understandings of the parties regarding the Software. You agree that any terms and conditions contained in any purchase order or other ordering document submitted to order the Software shall have no binding effect on Xerox and will not modify this Agreement in any way.
If, after reading the terms and conditions, they are unacceptable to you, then, to avoid contractual obligations and liability, you should promptly return the software unused, and you will then be entitled to a refund of any sums paid by you to license the Software.