XStream Software Inc.
XStream SCORM Library - Software License
PLEASE READ THIS
SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE CLICKING THE
"YES" BUTTON BELOW. BY
CLICKING "YES," YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS
LICENSE. IF YOU DO NOT AGREE TO THE
TERMS OF THIS LICENSE, CLICK "NO" AND (IF APPLICABLE) RETURN THE
SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT.
1. License.
The XStream SCORM Library software and documentation accompanying this
License whether on disk, in read only memory, on any other media or in any
other form (hereinafter collectively referred to as the "Program")
are licensed to you by XStream Software Inc. (hereinafter referred to as
"XStream") on a per Web Front End (WFE) server basis. A separate Web
Front End (WBE) Server License is required for each Web Front End (WFE) server
in your production environment on which you will be installing and running the
Program.
You own the media on which the Program is recorded but XStream retains
title to the Program. The Program in
this package and any copies which this License authorizes you to make are
subject to this License.
In consideration of the payment of the license fee for the Program,
unless waived in writing by XStream, XStream grants to the person who paid such
license fee (hereinafter referred to as the "Licensee") a restricted
and non-exclusive license to use the Program and the enclosed materials as set
out in this Agreement for Licensee's own internal business purposes, but not
for resale, relicensing, export, re-export or other redistribution.
2. Ownership.
The copyright and all other right, title and interest in the Program,
and related materials shall at all times remain with XStream or its licensors.
Physical copies of the Program remain the property of XStream or its licensors
and such copies are deemed to be on loan to Licensee during the term of this
Agreement. Licensee must fully reproduce any copyright or other notice marked
on any part of the Program on all copies and must not alter or remove any such
copyright or other notice on the original copy of the Program. XStream reserves
all rights not expressly granted to Licensee.
The Program is intended for use only with properly licensed media,
content and content creation tools. It is Licensee's responsibility to
ascertain whether any copyright, patent or other licenses are necessary and to
obtain any such licenses to create, perform or display such media and content.
Licensee agrees to record, play back and download only those materials for
which Licensee has the necessary patent, copyright and other necessary
permissions, licenses and clearances. Licensee shall hold harmless and indemnify
and defend Licensor, its officers, directors, and employees from and against
any loss, damages, fines and expenses (including attorneys' fees and costs)
arising out of any claim that Licensee's use of the Program (excluding claims
that the Program as made available by Licensor infringes third-party
intellectual property rights) infringes any third-party rights.
3. Permitted Uses and Restrictions.
During the term of this Agreement, Licensee may install and use the
Program on any Web Front End (WFE) server for which the Licensee has a valid
License. The number of Web Front End (WFE) servers on which the Program is
installed cannot exceed the number of valid Licenses purchased by the Licensee.
Except as expressly authorized under this license, Licensee is prohibited
from doing any of the following things to the fullest extent permitted by law:
(i) Sublease, lease, loan,
sublicense, sell, distribute, rent, permit concurrent use of or grant other
rights in the Program;
(ii) Transmit the Program over a network;
(iii) Access the Program from the current machine using any other
machine (via remote desktop capabilities or any other means of accessing the
Program remotely);
(iv) Transfer this license to use the Program; or
(iv) Translate, reverse engineer, modify, adapt, create derivative
works, decompile or disassemble any part of the Program.
THE PROGRAM IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR
FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, OR AIR TRAFFIC
CONTROL MACHINES IN WHICH CASE THE FAILURE OF THE PROGRAM COULD LEAD TO DEATH,
PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Your rights under this License will terminate
automatically without notice from XStream if you fail to comply with any
term(s) of this License.
4. Basis of Bargain
The exclusive remedies and limited liability set forth below are
fundamental elements of the basis of the bargain between XStream and Licensee.
XStream would not be able to provide the Program on an economic basis without
such limitations.
5. Disclaimer of Warranty on Program.
You expressly acknowledge and agree that use of the Program is at your
sole risk. The Program is provided
"AS IS" and without warranty of any kind and XSTREAM EXPRESSLY
DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR
SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT
OF THIRD PARTY RIGHTS.
XSTREAM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM
WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PROGRAM WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PROGRAM WILL BE
CORRECTED. FURTHERMORE, XSTREAM DOES NOT
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE
OF THE PROGRAM OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE. NO
ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY XSTREAM OR AN XSTREAM AUTHORIZED
REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS
WARRANTY. SHOULD THE PROGRAM PROVE
DEFECTIVE, YOU (AND NOT XSTREAM OR AN XSTREAM AUTHORIZED REPRESENTATIVE) ASSUME
THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THE TERMS OF THIS DISCLAIMER DO NOT AFFECT OR
PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING XSTREAM PRODUCTS
OTHERWISE THAN IN THE COURSE OF A BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE
ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY XSTREAM'S NEGLIGENCE.
6. Limitation of Liability
(A) EXCEPT AS OTHERWISE PROVIDED IN SECTION 5, THE ENTIRE RISK AS TO THE
RESULTS AND PERFORMANCE OF THE PROGRAM IS ASSUMED BY LICENSEE. UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING NEGLIGENCE), CONTRACT
OR OTHERWISE, SHALL XSTREAM HAVE ANY LIABILITY TO LICENSEE OR ANY OTHER PERSON
OR ENTITY FOR ANY LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER
COMMERCIAL OR ECONOMIC LOSS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF XSTREAM HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES; NOR SHALL XSTREAM'S AGENTS OR REPRESENTATIVES OR
LICENSORS HAVE ANY SUCH LIABILITY. (B) THE MAXIMUM AGGREGATE LIABILITY OF
XSTREAM AND ITS AGENTS, REPRESENTATIVES AND LICENSORS IN ANY CONNECTION WITH
THIS AGREEMENT OR THE PROGRAM, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT
OR OTHERWISE SHALL NOT EXCEED THE LICENSE FEES PAID BY LICENSEE FOR THE COPY
(OR COPIES) OF THE PROGRAM GOVERNED BY THIS LICENSE. THIS LIMITATION SHALL
APPLY EVEN IN THE EVENT OF A FUNDAMENTAL BREACH OR A BREACH OF THE FUNDAMENTAL
TERMS OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL RESTRICT XSTREAM'S
LIABILITY IN A MANNER THAT IS EXPRESSLY PROHIBITED BY STATUTE OR REGULATION.
7. Term
The license granted under this Agreement (for the specified term of this
Agreement) shall remain in effect until terminated. If Licensee wishes to
terminate the license at any time, it may do so by ceasing all use of the
Program and related materials. XStream may terminate the license due to
Licensee's failure to comply with any of the provisions of this Agreement. Upon
termination by Licensee or XStream, Licensee agrees to return to XStream all
copies of the Program and related materials.
8. U.S. Government End Users
The Program (i) was developed exclusively at private expense; (ii) is a
trade secret of XStream for all purposes of the Freedom of Information Act;
(iii) is "commercial computer software" subject to limited
utilization (Restricted Rights); and (iv) including all copies of the Program,
in all respects is and shall remain proprietary to XStream or its licensors.
Use, duplication or disclosure by the U.S. Government or any person or
entity acting on its behalf is subject to restrictions for software developed
exclusively at private expense as set forth in: (i) for the DoD, the Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or any
successor clause, and (ii) for all government agencies, the Commercial Computer
Software - Restricted Rights clause at FAR 52.227-19 or any successor clause.
The U.S. Government must refrain from changing or removing any insignia or
lettering from the Program or from producing copies of the Program and manuals.
Use of the Program shall be limited to the facility for which it is acquired.
All other U.S. Government personnel using the Program are hereby on notice that
use of the Program is subject to restrictions that are the same as, or similar
to, those specified above.
9. Export Restrictions
Licensee hereby agrees and confirms that Licensee is not a resident of,
and this transaction is not in any way connected with, any jurisdictions which
are prohibited by applicable law, including without limiting the foregoing,
jurisdictions included under the Area Control List of the Exports and Imports
Permit Act of Canada. Licensee agrees and confirms that this transaction is in
full and complete compliance with the laws of Licensee's jurisdiction, and that
Licensee shall not, in any manner whatsoever, either remove, convey, export or
transmit the Program from Licensee's jurisdiction without the prior written
consent of XStream.
10. Governing Law
This Agreement shall be governed by the laws of the Province of Ontario,
Canada, without giving effect to the principles of conflicts of law, and
excluding that body of law applicable to choice of law and excluding the United
Nations Convention on Contracts for the International Sale of Goods, if
applicable. Licensee agrees that the courts of such province constitute a
convenient forum for any such litigation and Licensee attorns and submits to
the non-exclusive jurisdiction of such courts. The parties waive trial by jury.
The prevailing party in any litigation shall be entitled to its costs. This
transaction is void wherever such transaction is prohibited.
11. Severability / No Purchase Order Terms
If any provision of this Agreement is found to be invalid or
unenforceable, such provision shall be severed from this Agreement and the
remaining provisions shall remain in full force and effect. Notwithstanding any
provisions to the contrary on any purchase order or similar document, no terms,
conditions or stipulations written on a purchase order or similar document will
affect these license terms even if such purchase order or document is accepted
by the receiving party.
12. Publication
Licensee consents to publication of its name by XStream as an end user
of XStream software and/or services in a factual listing of XStream customers
to be published within presentations, on trade show signs, and on its Web site.
XStream will seek Licensee's prior written authorization for use of Licensee's
name for promotional activities beyond the above-mentioned, which may include
press releases and brochures.
13. Complete Agreement. This
License constitutes the entire agreement between the parties with respect to
the use of the Program and supersedes all prior or contemporaneous
understandings regarding such subject matter.
No amendment to or modification of this License will be binding unless
in writing and signed by XStream.
XSTREAM SOFTWARE INC.
101-2280 St. Laurent Blvd.
Ottawa, Ontario, Canada
K1G 4K1
Phone: 613-731-9443
Fax: 613-731-9615
E-mail:info@xstreamsoftware.com