End User License

    1. “Documentation” means any technical user guides or manuals provided by ExXothermic related to the Software.
    2. “Equipment” means the hardware equipment provided by ExXothermic on which the Software is installed.
    3. “Software” means the object code version of the applicable software provided by ExXothermic and ordered by End User pursuant to an applicable Order Form.
  2. License Grant. During the Term (as defined the applicable Order Form), and subject to End User’s compliance with the terms and conditions of this Agreement, ExXothermic grants to End User a non-exclusive, non-transferable, non-sublicensable, fee bearing license to use the Software only for End User’s own internal business use. The Equipment will be delivered as set forth on the applicable Order Form. End User acknowledges and agrees that the Software contains a reporting mechanism that provides information on the Software status, both to enable the provision of authorized support and to detect the unauthorized reproduction and use of the Software. If the Software is reproduced and the copies are used in an unauthorized manner, all copies of the Software will be disabled pending resolution of the issue.
  3. End User will not: (a) copy the Software in any manner; (b) transfer, sell, rent, lease, lend, distribute, or sublicense the Equipment or Software to any third party; (c) use the Software for providing time-sharing services, service bureau services or as part of an application services provider or as a service offering primarily designed to offer the functionality of the Software; (d) reverse engineer, disassemble, or decompile the Equipment or Software (except to the extent such restrictions are prohibited by law); (e) alter, modify, enhance or prepare any derivative work from or of the Equipment or Software; (f) alter or remove any proprietary notices in the Equipment or Software; or (g) export the Equipment or Software in violation of U.S. Department of Commerce export administration rules or any other export laws or regulations. End User must ensure that End User’s use of the Software and Equipment is in accordance with all applicable laws and regulations and that End User has the right to transmit its content through the Software. If End User does not comply with the license terms or the foregoing restrictions, ExXothermic may terminate or suspend End User’s license to the Software (without refund or credit) until End User comes into compliance with such terms and restrictions.
  4. Proprietary Rights. The Software and the intellectual property rights in the Equipment, and any modifications or derivatives thereto, is and shall remain the sole property of ExXothermic and its licensors, and, except for the license rights granted herein, ExXothermic and its licensors retain all right, title and interest in and to the Software including all intellectual property rights therein and thereto and the intellectual property rights in the Equipment. The Software may include third party open source software components. If End User is the United State Government or any contractor thereof, all licenses granted hereunder are subject to the following: (a) for acquisition by or on behalf of civil agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement and as specified in Subpart 12.1212 of the Federal Acquisition Regulation (FAR), 48 C.F.R.12.1212, and its successors; and (b) for acquisition by or on behalf of the Department of Defense (DOD) and any agencies or units thereof, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement and as specified in Subparts 227.7202-1 and 227.7202-3 of the DOD FAR Supplement, 48 C.F.R.227.7202-1 and 227.7202-3, and its successors. Manufacturer is ExXothermic Inc.
  5. For a period of thirty (90) days after shipment of the Software to End User (the “Software Warranty Period”), ExXothermic warrants that the Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the product specifications audioeverywhere.com/product-specifications . If the End User is paying a Subscription Fee (as defined in the applicable Order Form), then the End User is entitled to support services for the Software as provided herein during the Term. ExXothermic does not warrant that End User use of the Software will be error-free or uninterrupted. ExXothermic will as its and its supplier’s sole obligation and End User’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible failure of the Software to operate substantially as described in the Documentation (an “Error”), as reported to ExXothermic by End User in writing during the Software Warranty Period. Any such Error correction provided to End User will not extend the original Software Warranty Period. The foregoing provisions do not apply to evaluation licenses, for which no warranty shall be provided.
  1. For a period of one (1) year from the date of delivery of the Equipment to End User, ExXothermic warrants that the Equipment will be free from defects in material and workmanship under normal use. End User’s exclusive remedy and the entire liability of ExXothermic and its suppliers in the event of a violation of the warranty set forth herein is, at ExXothermic’s option, to repair or replace any Equipment (or component) that fails during the warranty period at no cost to End User.
  2. THE EXPRESS WARRANTIES IN THIS SECTION 4 ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE LICENSED SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH END USER’S QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 4, THE EQUIPMENT AND THE SOFTWARE ARE PROVIDED “AS IS” WITH ALL FAULTS.
  3. ExXothermic will provide End User with the level of Support Services ordered by End User as set forth on an Order Form in accordance with the Support Services policies in effect on the Effective Date and available at the ExXothermic website at http://exxxothermic.com/support-2/.
  4. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4, THE EQUIPMENT, SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXXOTHERMIC AND ITS LICENSORS DO NOT WARRANT THAT THE EQUIPMENT, SOFTWARE OR THE SERVICES PROVIDED HEREUNDER WILL MEET END USER’S REQUIREMENTS, THAT THE EQUIPMENT OR SOFTWARE WILL OPERATE IN THE COMBINATIONS END USER MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL EQUIPMENT OR SOFTWARE ERRORS WILL BE CORRECTED. EXXOTHERMIC AND ITS LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
  5. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EXXOTHERMIC OR ITS LICENSORS BE LIABLE TO END USER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE EQUIPMENT OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE EQUIPMENT, SOFTWARE OR DOCUMENTATION OR THE SERVICES PROVIDED BY EXXOTHERMIC HEREUNDER INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER LOSSES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT WILL EXXOTHERMIC’S OR ITS LICENSORS’ AGGREGATE LIABILITY TO END USER, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY END USER TO ExXothermic UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF A CLAIM. The parties expressly acknowledge and agree that ExXothermic has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between ExXothermic and End User and form a basis of the bargain between the parties.
  6. Delivery; Title. ExXothermic will ship Equipment to End User at the address set forth in the Agreement. Delivery will be made F.C.A. (Free Carrier Incoterms 2010) origin. For purposes of the Agreement, “delivery” means the time when ExXothermic consigns the Equipment to the carrier at ExXothermic’s facility. In the absence of specific written instructions from End User, ExXothermic will select the carrier, but such carrier will not be the agent of ExXothermic. Title, risk of loss and/or damage to the Equipment will pass to ExXothermic on delivery to such carrier. ExXothermic will pack all the Equipment shipped in accordance with standard commercial practices.
  7. Fees; Payment. Unless otherwise specified in the applicable Order Form, End User shall pay all invoices net thirty (30) days after the date of ExXothermic’s invoice. Payments made under the Agreement after their due date will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. ExXothermic may increase the Subscription Fee upon thirty (30) days’ written notice to End User.
  1. Term and Termination. Unless otherwise specified in the applicable Order Form, the Term of this Agreement begins on the Effective Date and continues for a period of twelve (12) months thereafter, unless earlier terminated as provided herein. Either party may terminate this Agreement upon thirty (30) days’ written notice to the other party. Either party may terminate this Agreement if the other party materially breaches any provision of this Agreement and does not cure such breach within fifteen (15) days after receiving written notice thereof from the other party. Upon the termination of this Agreement for any reason, any amounts owed to ExXothermic before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and End User must promptly discontinue all use of the Software and certify in writing to ExXothermic that it has fully complied with these requirements.
  2. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. End User may not assign this Agreement by merger, operation of law or otherwise, in whole or in part, without ExXothermic’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void.
  3. Governing Law; Jurisdiction; Attorney’s Fees. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of law rules. Any action or proceeding arising from or relating to this Agreement must be brought in the courts in Santa Clara County, California. In the event that any dispute between the parties arises out of or is related to any of the provisions of this Agreement, and/or the performance or termination thereof, the prevailing party in any such action shall recover all of its costs, including reasonable attorneys’ fees. The parties agree that United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
  4. No Waiver. The failure of either party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party to thereafter enforce any such provision.
  5. Unenforceable Provisions. If any term of this Agreement is found to be illegal or unenforceable, the remaining portions of this Agreement shall remain in effect, provided that the parties agree to negotiate in good faith substitute enforceable terms.
  6. Controlling Language. This Agreement and the exhibits hereto, are prepared and executed in the English language only, which language shall be controlling in all respects. Any translations of this Agreement into any other language are for reference only and shall have no legal or other effect. Any notice which is required or permitted to be given by one party to the other under this Agreement will be in the English language and will be in writing.
  7. During the terms of the Agreement, the End User grants ExXothermic the right to use, display and distribute screen shots of the interface for the co-branded version of the Audio Anywhere App for marketing purposes on ExXothermic’s web site and in ExXothermic’s marketing materials.
  8. Modifications; Entire Agreement. Any amendments and modifications to this Agreement shall be in writing signed by both parties. This Agreement is the entire understanding between ExXothermic and End User with respect to the subject matter of this Agreement, and supersedes all (a) proposals, oral or written, (b) negotiations, conversations or discussions between the parties and (c) industry custom or past course of dealing, relating to such subject matter.