END-USER LICENSE AGREEMENT


Xima LLC


IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity, “you” or “Licensee”) and Xima LLC, a Utah limited liability company (“Xima”) with respect to the Xima software product(s) identified above, which product(s) include computer software and any associated media, printed materials, and “online” or electronic documentation (collectively, the “Product”). An amendment or addendum to this EULA may accompany the Product.  YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT. In addition, by installing, copying, or otherwise using subscription updates that you receive as part of the Product (“Updates”), you agree to be bound by the additional license terms that accompany such Updates. If you do not agree to the additional license terms that accompany such Updates, you may not install, copy, or use such Updates.


  1. Applicability Of License. Depending on the product configuration you have chosen, the Product may consist of product documentation, sample databases, books and periodicals, tools and utilities, database schemas, miscellaneous technical information, toolkits, server applications, and development tools (each, a “Component,” and collectively “Components,” of the Product.) This EULA defines your rights to the Components you have elected to receive as part of your purchase of the Product.


  1. General Grant of License.  Xima hereby grants Licensee a limited, revocable non-exclusive, non-transferrable, non-sublicensable license to use the Product. In general, for each license you have acquired for the Product, you are authorized to install the Product on one hard drive according to the terms of this EULA. You have purchased the right to enable a single instance of this Product to log to a single database. You may NOT enable more than one instance of this Product to log at any given time. Doing so is a violation of this EULA. The Product may collect identifying data via the Internet during the registration process to enable proper enforcement of this EULA. The Product will communicate with Xima via the Internet each day to verify continuing validity of Product registration. If the Product is unable to communicate or verify licensing with Xima, the Product will not function as intended. You acknowledge and agree that Xima would not be able to provide the Product on an economic basis without such requirements. Any unauthorized use of the Product will result in immediate termination of this EULA, and may give rise to a claim for damages by Xima.


  1. Reservation of Rights and Ownership. Xima reserves all rights not expressly granted to Licensee in this EULA. The Product is protected by copyright and other intellectual property laws and treaties. Xima owns all right, title and interest in all intellectual property rights in the Product, including but not limited to copyright derivative works, and/or any trademark, patent, or trade secret rights, as applicable. The Product is licensed, not sold. This EULA does not grant Licensee (or any others otherwise authorized in accordance with this EULA) any rights to trademarks or service marks of Xima, not any other rights in intellectual property corresponding to the Product, except insofar as required to use the Product under the terms of this EULA.


  1. Limitations on Use of the Software. Licensee expressly agrees that it will not sublicense, lease, rent, sell, distribute, assign, transfer, reverse engineer, decompile, disassemble, offer the Product for resale, create any derivative works based upon any part of the Product, provide commercial hosting services with respect to the Product, or otherwise allow any unauthorized use of the Product.


  1. Protection and Security. Licensee agrees to use its best efforts and take all reasonable steps to safeguard the Product to ensure that no unauthorized person has access to the Product. Licensee agrees that It will not allow any unauthorized copying, publication, disclosure, or distribution of the Product, in whole or in part, in any form. Licensee acknowledges that the Product contains valuable confidential information and trade secrets and that unauthorized use or copying is harmful to Xima.


  1. Compliance with Payment Obligations. Licensee hereby agrees to comply with its payment obligations for its access to and use of the Product, whether such payment obligations are owed to a third-party intermediary, such as a reseller, or owed directly to Xima. In the event that any payment obligations become 30 days past-due, a late payment penalty of $75.00 will be assessed. In the event that any payment obligations become 60 days past-due, a second late payment penalty of $75.00 will be assessed. Xima reserves the right to shut off Licensee’s access to the Product and terminate this EULA should any payment obligation remain outstanding longer than 45 days. Xima also reserves the right to shut off Licensee’s access to the Product and terminate this EULA should Licensee default on its payment obligations three (3) times in one calendar year. In the event of any termination due to Licensee’s default, early cancellation fees may be assessed against Licensee. In the event that Licensee desires to resume access to and use of the Product following any termination of this EULA and loss of access to the Product due to Licensee’s default, a processing/re-activation fee of $300.00 will be assessed.


  1. Product Updates. This EULA applies not only to the Product as initially provided, but also to updates, upgrades, supplements, add-on components, or internet-based services components, of the Product that Xima may provide to Licensee or make available to Licensee after the date Licensee obtains its initial license to use the Product. Xima reserves the right to discontinue any internet-based services provided to Licensee or made available to Licensee through the use of the Product. Additional license terms may accompany Updates. By installing, copying, or otherwise using any Update, you agree to be bound by the terms accompanying each such Update. If you do not agree to the additional license terms accompanying such Update, do not install, copy, or otherwise use such Updates.


  1. Data Collection. Xima reserves the right to monitor Licensee’s usage of the Product to monitor Licensee’s compliance with this EULA. Licensee also agrees the Xima, and its affiliates, may collect and use technical information provided by Licensee as part of any support services related to the Product. For additional information regarding Xima?s collection and processing of information, see Xima?s General Privacy Policy, which is available at www.ximasoftware.com/privacypolicy.


  1. Revocation/Termination. Xima may revoke Licensee’s license to use the Product at any time for any reason and without notice, in Xima’s sole discretion. Upon such revocation or termination, Licensee will no longer be authorized access or use the Product.


  1. Incompatibility. Xima is not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Product with any products or software not furnished by Xima.


  1. Limited Warranty. Xima warrants that, when used with any recommended hardware configuration, the Product will perform in substantial compliance with the printed materials and other documentation supplied with the Product. EXCEPT FOR THE FORGOING LIMITED WARRANTY THE PRODUCT IS PROVIDED “AS-IS” AND XIMA MAKES NO REPRESENTATIONS OR WARRANTIES TO LICENSEE OR ANY OTHER THIRD PARTY WITH RESPECT TO THE PRODUCT, AND HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMETN, QUALITY, ACCURACY, PERFORMANCE, FREEDOM FROM ERROR, AND FITNESS FOR A PARTICULAR PURPOSE. XIMA FURTHER DISCLAIMS ANY AND ALL WARRANTIES THAT THE PRODUCT IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR WILL ALWAYS BE AVAILABLE UPDATED, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY XIMA, ITS AGENTS, REPRESENTATIVES, OR EMPLOYEES, SHALL CREATE A WARRANTIY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.


  1. Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL XIMA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR THE INABILITY TO USE THE PRODUCT, INABILITY TO ACCESS DATA/INFORMATION, BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOST PROFITS, LOST REVENUES, OR INCREASED COST OF OPERATIONS, BASED ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF XIMA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. LICENSEE AGREES THAT XIMA’S TOTAL LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY LICENSEE FOR LICENSEE’S USE OF THE PRODUCT.


  1. Basis of Bargain. The limited warranty and disclaimer, exclusive remedies and limited liability set forth above are fundamental elements of the basis of the agreement between Xima and Licensee. Xima would not be able to provide the Product on an economic basis without such limitations. Furthermore, the limitations of warranties, remedies and liabilities set forth herein shall apply to Licensee only to the extent such limitations are permitted under applicable law, which may vary from state to state.


  1. Applicable Law. This EULA will be governed by and construed in accordance with the laws of the State of Utah without regard to conflict of law principles. Licensee hereby submits to the exclusive personal jurisdiction and venue of the State or Federal Courts located in Salt Lake City, Utah.


  1. Amendment. This EULA may not be modified or amended by Licensee without Xima’s express written consent. Xima may modify or amend this EULA upon written notice to Licensee. Licensee shall be deemed to have accepted such modified or amended terms by its continued use of the Product following such written notice.


  1. Entire Agreement; Severability. This EULA constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes any other understandings. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. All questions regarding this EULA shall be directed to:

Xima LLC
Attention: General Counsel
10653 S. River Front
Parkway Ste. 200 South Jordan, UT 84095


  1. Costs of Enforcement. In the event of a legal dispute regarding the enforcement of this EULA, the prevailing party in such dispute shall be entitled to recover from the other party all costs and fees, including reasonable attorneys fees relating to such dispute.


  1. Agreement to be Bound. By accessing and using the Product, Licensee hereby agrees to be bound by the terms and conditions of this EULA.


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