AntSyn Terms and Conditions
1.Definitions. As used in this Agreement, the following capitalized terms have the meanings given below.
"AntSyn User Portal" or “Services User Portal” means the area(s) of the AWR website where the AntSyn services may be registered for, accessed and used.
“AWR Contractor” means any third-party service provider that AWR may engage at any time to provide or make available web hosting, infrastructure, platform, software, data processing, data storage or other services or facilities to or for use by AWR to enable or facilitate AWR’s provision of the Services or any portion of the Services.
“Documentation” means the user guides, quick reference guides, other technical and operations manuals and specifications for the AntSyn Services located on the AntSyn User Portal as such documentation may be updated by AWR from time to time.
“Effective Date” means the date You create Your Service Account.
“High Risk Activities” means life or safety critical systems, hazardous environments or any other environments requiring fail-safe performance, or any activities in which failure of the Services could lead to death, personal injury, severe property damage or environmental harm.
“Mark” means the trade name, trademarks, service marks or other indicia of origin of a party.
“Services” means the antenna synthesis services that AWR makes available during the term of this Agreement for which You register through the Services User Portal. Features, functions, limitations, and restrictions associated with the Services are posted on www.awrcorp.com/antsyn, as such descriptions may be updated by AWR from time to time.
“Service Account” means Your user account created through the Services User Portal.
“Service Term” means the period of time for which You are entitled to receive, and obligated to pay for, the Services.
“Software” means any computer software and other code, together with any accompanying documentation and utilities, provided by AWR in connection with the Services.
“You” means solely the individual natural person who created the Service Account or the entity for which the Service Account was created. If You are accepting the terms of this Agreement on behalf of an entity, You represent that you have authority to bind the entity to this Agreement.
“Your Content” means any data or other software content that You (a) transmit to the Services pursuant to this Agreement or (b) develop or use in connection with the Services. Your Content includes software, data and content that You upload to the Services and any designs developed using the Services. In no event, however, shall the term “Your Content” include any software, code, documentation, media elements or other content provided or made available by AWR or an AWR Contractor.
2.1 Services. Subject to the terms of this Agreement, AWR will use commercially reasonable efforts to provide You with the Services during the applicable Service Term. You may use the Services solely for Your internal business purposes. Each Service Term will begin on the date specified on Your invoice and will continue for the period of time specified in Your invoice (the “Initial Service Term”).
2.2 Limitations; Implementation
2.2.1 AWR may change, discontinue or deprecate any of the Services, or the features or functionality of any of the Services, from time to time; provided, however, that if AWR discontinues the Services it will refund to You the portion of any fees You paid in advance for the remainder of Your then-current Service Term.
2.2.2 You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services; try to gain unauthorized access to any other services, data, account or network by any means; or use the Services in any manner that may interfere with the use of the Services or similar services by others who are entitled to use the Services or similar services.
2.2.3 You may not compile or use the Services for the purpose of any fraudulent or illegal activities, including activities that violate anti-spamming laws and regulations, or use the Services to create or transmit any obscene or scandalous works.
2.2.4 You may not use the Services for High Risk Activities.
2.2.5 You may not remove, obscure or alter any notice of any Mark, or other intellectual property or proprietary right, or any legal or regulatory notice or link, appearing on or contained within the Services.
2.2.6 You may not use software, designs, media elements, fonts or documentation provided or made available by AWR or any AWR Contractor in connection with the Services, other than as part of the normal use of the Services as permitted by this Agreement.
2.2.7 You must comply with any technical limitations in the Services that only allow You to use them in certain ways.
2.2.8 You may not permit any third party to use the Services or use the Services or any materials provided therein or in conjunction with the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party.
2.2.9 If You use the Services in the scope of Your employment You may use the Services solely as necessary for Your employer’s internal business purposes.
2.3 Your Account. You may not allow multiple individuals to share or access one Service Account. You are responsible for maintaining the secrecy and security of Your password. Your password is for Your internal use only. You may not provide Your password to any other party. You are responsible for all activities that occur under Your password, regardless of whether such activities are undertaken by agents and subcontractors or any other third party. You must notify AWR immediately in writing if You believe any misuse or misappropriation of Your password keys is occurring, or Your password key is otherwise lost, stolen or compromised, or if You believe that there may have been any security incidents or any misuse or unauthorized access of Your Service Account.
2.4 Access for Evaluation. Any Services provided by AWR without charge (“Evaluation Services”) will be subject to this Agreement, including the exceptions set forth herein. Evaluation Services include any Services that are made available to You for no charge for evaluation purposes and any beta or trial services. Evaluation Services are only for purposes of evaluating the functionality of the service; Evaluation Services may not be used for any production design, R&D, proposals, or any other commercial purposes. AWR may limit the functionality available in Evaluation Services, such as disabling printing and project export functionality.
AWR may collect information during activation, login, and during Your use of the Services about Your Service Account and general information about how You use the Services. Any personal data so transmitted will be processed in accordance with, and for the purposes described in, AWR’s Privacy Statement (http://www.awrcorp.com/contact-us/website-terms-use-awr-domains/privacy-policy).
2.5 Sample Projects. AWR may provide You with sample projects through the Services (the “Samples”). You may distribute components of the Sample Projects included with designs You have developed using the Services. Use of the Samples is at Your own risk. YOU ASSUME ALL OF THE RISK AND LIABILITY ASSOCIATED WITH YOUR USE, MODIFICATION OR DISTRIBUTION OF THE SAMPLES. YOU AGREE THAT AWR PROVIDES THE SAMPLES "AS IS" WITH ALL FAULTS (KNOWN AND UNKNOWN) AND WITHOUT ANY WARRANTY, REPRESENTATION OR OTHER GUARANTEE OF ANY KIND.
3.1 Fees and Taxes. You agree to pay the fees set forth in the invoice and all associated taxes.
3.2 Payments. Except as otherwise set forth herein, all amounts due must be paid within the payment period specified in the invoice in the currency specified by AWR. If none is specified, then the amounts due must be paid within thirty days of invoice or the Effective Date, whichever is sooner. In the event of default, You are is responsible for reasonable attorney’s fees and court costs incurred to recover amounts due. If the account is placed with a collection agency, You are responsible for all collection costs incurred, which may include collection fees or contingency fees. AWR may report information about Your account to the proper credit bureaus. Late payments, missed payments or other defaults on Your account may also be reflected in Your credit report.
4. Security and Backup
4.1 Security. AWR will use commercially reasonable efforts to establish and maintain administrative, technical and physical safeguards for the Services that are designed to (a) protect the security and integrity of the Services, (b) guard against anticipated threats or hazards to the security and integrity of the Services and (c) protect against the accidental or unauthorized access, use, alteration or disclosure of Your Content.
4.2 Other Security and Backup. AWR is not responsible for any unauthorized access to, alteration of or the deletion, destruction, damage, loss or failure to store any of Your Content or other data that You submit or use in connection with Your account or the Services (including as a result of Your errors, acts or omissions). You should regularly back up Your Content.
4.3 Access. AWR will not disclose any of Your Content, except: (a) if You expressly authorize AWR to do so in connection with Your use of the Services; or (b) as necessary to provide the Services or to comply with this Agreement or an agreement with an AWR Contractor or the request of a governmental or regulatory body, subpoenas or court orders. If AWR receives a subpoena, court order or other request from a governmental or regulatory body requesting the disclosure of Your Content, AWR will give You reasonable notice to allow You to seek a protective order or other appropriate remedy (except to the extent AWR’s compliance with the foregoing would cause it to violate a court order or other legal requirement).
5.1 Availability. AWR will make the Services available consistent with the manner in which AWR makes the Services generally available to other users of the Services and configuration You have selected. AWR does not make any representations, promises or warranties regarding uptime or availability of the Services.
5.2 Interruption. The Services may be unavailable at certain times, including during any scheduled or unscheduled repairs or maintenance or downtime or unavailability of all or any portion of the Services as a result of system failures or force majeure events described in Section 10.6 (collectively, “Interruptions”). AWR will use commercially reasonable efforts, circumstances permitting, to provide information regarding any Interruption and the restoration of use and access to the Services following the Interruption. You agree that AWR will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Interruption and You will not be entitled to any refunds for any pre-paid fees for any Interruption.
5.3 Suspension. AWR may suspend Your access to any portion or all of the Services if AWR reasonably determines that (a) there is a threat or attack on the Services (including a denial of service attack) or other event that may create a risk to the Services, You or any other AWR customer (in which case the suspension shall be only for such period as AWR may reasonably determine in light of the circumstances); (b) Your use of the Services (i) disrupts, or poses a security risk to, the Services or any other user, (ii) may harm AWR’s systems or the systems of any other user or (iii) may subject AWR or any third party to liability; ; (c) subject to applicable law, You have ceased to continue business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (d) You are using the Services in breach of this Agreement; (e) You are in default of payment obligations related to the Services; (g) there is an unusual spike or increase in Your use of the Services (collectively, "Suspensions"); or (h) at AWR’s sole discretion for any Evaluation Services. AWR will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Suspensions to You (which may include notice sent to Your email address) and to provide updates regarding resumption of Services following any Suspensions. You agree that AWR will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Suspension and You will not be entitled to any refunds for any pre-paid fees for any Suspension.
5.4 Modification. AWR or AWR Contractor may modify the functionality or features of the Services at any time, provided that the modification does not materially degrade the functionality of the Services (as described in the applicable Services description) during the Service Term.
6. Intellectual Property; Proprietary Rights
6.1 Reservation of Rights by AWR. Other than the limited use and access rights expressly set forth in this Agreement, AWR reserves all right, title and interest (including all intellectual property and proprietary rights) in and to (a) the Services (including Samples); (b) AWR’s Marks and (c) any other technology and software that AWR provides access to or uses to provide the Services. You do not, by virtue of this Agreement, acquire any ownership interest or rights in the foregoing, except for the limited use and access rights described in this Agreement.
6.2 Non-exclusive Rights. The use rights granted by AWR in this Agreement with respect to the Services are nonexclusive, and each party reserves the right to (a) itself act as a developer of products or services related to any of the products that the other party may develop in connection with the other party’s use of the Services and (b) appoint third parties as developers or systems integrators who may offer products or services that compete with the other party. However, (a) AWR may not resell, distribute or otherwise commercially exploit Your Content without Your prior written consent, and (b) You may not resell, distribute or otherwise commercially exploit the Services or AWR’s Marks.
6.3 Feedback. In the event You elect in connection with any of the Services to communicate to AWR suggestions for improvements to the Services ("Feedback"), AWR will own all right, title and interest in and to the same, even if You designated the Feedback as confidential, and AWR will be entitled to use and disclose the Feedback without restriction.
6.4 Non-Assertion. During the term of the Agreement, You will not assert, nor will You authorize or assist any third party to assert, against AWR, its affiliates or any of their respective customers, vendors, business partners or licensors, any patent infringement claim with respect to any Services.
7. Representations, Warranties, Disclaimers
7.1.1 Each party represents and warrants to the other that (a) it has full power and authority to enter in and perform this Agreement, (b) the execution and delivery of this Agreement has been duly authorized and (c) its performance hereunder does not breach any other agreement to which it is bound.
7.1.2 You warrant and represent that Your Content does not consist of or contain (a) any export controlled technology or technical data identified on any U.S. export control list or other applicable export control lists, including but not limited to the U.S. International Traffic in Arms Regulations, U.S. Export Administration Regulations and so forth, (b) any obscene, scandalous or illegal content, (c) anything that infringes upon or misappropriates any third party’s intellectual property rights or (d) any viruses, worms, Trojan horses or other malware or malicious code, including any instructions, code, commands or vulnerabilities designed or likely to cause damage to, or enable or facilitate unauthorized access to, software, data or files.
7.1.3 You warrant and represent that You are not ineligible or otherwise restricted by U.S. or applicable law to use the Service. Your Content will not be uploaded from a location or a person located in (or on behalf of anyone located in) any of the current U.S. Economic Trade Embargoed/Sanctioned countries.
7.1.4 All representations and warranties made by You shall be deemed first made as of the Effective Date (and as an inducement to AWR enter this Agreement and provide the Services), and they shall run continuously thereafter. Should any of the representations and warranties become untrue at any time, You must immediately notify AWR. AWR reserves the right restrict your use of the Service if AWR believes that such use may violate U.S. or other applicable export control laws.
7.2 Disclaimers. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, THE SERVICES, SAMPLES AND ALL OTHER TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY AWR OR ITS LICENSORS IN CONNECTION THEREWITH ARE PROVIDED "AS IS" WITH ALL FAULTS (KNOWN AND UNKNOWN). AWR AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES. AWR AND ITS LICENSORS DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. AWR AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT YOUR CONTENT STORED WITHIN OR TRANSMITTED TO THE SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. AWR AND ITS LICENSORS WILL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OR SUSPENSIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM AWR, ITS AFFILIATES OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THE SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES.
7.3 Limitations of Liability. AWR, NOR ANY OF ITS LICENSORS, AGENTS AND CONTRACTORS WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY SUCH DAMAGES RESULTING FROM (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT AND IN NO CASE SHALL AWR’S AGGREGATE LIABILITY TO YOU UNDER OR RELATING TO THIS AGREEMENT OR THE SERVICES EXCEED THE AMOUNTS PAYABLE OR PAID BY YOU TO AWR FOR YOUR USE OF THE SERVICES DURING THE TWELVE (12) MONTHS PRECEEDING THE CLAIM. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR SALE AND PERFORMANCE OF THE SOLUTION TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
8. Your Responsibilities for Development, Testing and Assessment. You acknowledge that You ultimately are responsible for verifying and validating the suitability and reliability of designs developed using the Services and assessment of all results provided by the Services. You agree that You will be solely responsible for the use of any designs developed using the Services and any results provided by the Services.
9. Term; Termination
9.1 Term. The term of this Agreement will commence on the Effective Date and will continue until terminated as permitted below. The then-current Service Term shall terminate immediately upon any termination of this Agreement except as set forth below.
9.2 Termination for Convenience. AWR may terminate this Agreement without cause upon sixty (60) days prior written notice to You provided that it refunds to You any prepaid fees for the remainder of the then-current Service Term. AWR may terminate Evaluation Services without cause at any time upon written notice to You. You may terminate this Agreement upon thirty (30) days prior written notice; provided, however, such termination shall not be effective until the end of Your then-current Service Term.
9.3 Termination for Cause. AWR may terminate this Agreement immediately if You materially default or breach the terms of this Agreement.
9.4 Effect of Termination. Upon termination of this Agreement for any reason, (a) You will remain liable for all undisputed fees, charges and any other payment obligations that have been incurred through the date of termination with respect to the Services and (b) all rights to use the Services granted to You under this Agreement will immediately terminate. In addition to any payment obligations arising prior to termination, Section 1 and Sections 6 through 10 will survive any termination of this Agreement.
9.5 Your Content. Upon expiration or termination of the Service Term, AWR will retain Your Content and make it available to You, in a manner determined by AWR, for up to ninety (90) days after expiration or termination (the “Retention Period”). AWR reserves the right to charge You for reasonable costs incurred in making Your Content available to You during the retention period. Following the expiration of the Retention Period, AWR will disable Your account and then delete Your Content remaining.
10.1 Export Compliance. In addition to Your warranties and representations in Sections 7.1.2 and 7.1.3, You agree to comply with all applicable export and re-export control laws and regulations, including but not limited to the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the U.S. Office of Foreign Assets Control, and other applicable nation country export control regulations in connection with this Agreement. Without limiting the foregoing, AWR is responsible for compliance related to its provision of the Services to You, and You are responsible for compliance related to the provision of any of Your Content. Your Content will not include information that is classified or listed on the U.S. Munitions list, contains defense articles or defense services, contains ITAR-related data, or is subject to specific privacy or data security requirements.
10.2 Independent Contractors. Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership or any fiduciary relationship between You and AWR or its affiliates. Further, neither party will be deemed to be an agent or representative of the other by virtue of this Agreement. Neither party is authorized to, and will not attempt to, create or assume any obligation or liability, express or implied, in the name of or otherwise on behalf of the other party. Without limiting the generality of the foregoing, neither party will enter into any contract, agreement or other commitment, make any warranty or guaranty, or incur any obligation or liability in the name or otherwise on behalf of the other party.
10.3 Assignment; Binding Effect. You may not assign or otherwise transfer this Agreement or any of Your rights and obligations under this Agreement or any portion of this Agreement without AWR’s prior written approval except in the event of Your merger, acquisition or sale of all or substantially all of Your assets to an affiliate or as part of a corporate reorganization and provided that such assignee has the necessary resources and expertise to perform Your obligations under this Agreement and agrees in writing to do so. This Agreement will be binding on and inure to the benefit of AWR and You and each party’s respective permitted successors and permitted assigns.
10.4 No Waivers. To be effective, any waiver by a party of any of its rights or the other party’s obligations under this Agreement must be made in a writing signed by the waiving party. No failure or forbearance by either party to insist upon or enforce performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise constitutes a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance.
10.5 Governing Law. The laws of the state of California will govern this Agreement without reference to any rules regarding conflict of laws. The parties irrevocably consent to exclusive jurisdiction and venue of the state and federal courts of located in Los Angeles, California with respect to any dispute arising from this Agreement. Notwithstanding the foregoing, AWR may seek injunctive or other relief in any state, federal or national court of competent jurisdiction for any actual or alleged infringement of AWR or any third party’s intellectual property or other proprietary rights. The parties expressly exclude the application of the United Nations Convention for the International Sale of Goods to this Agreement.
10.6 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure results from any cause beyond its reasonable control, including but not limited to acts of God; labor disputes or other industrial disturbances; electrical or power outage; utilities or telecommunications failures; earthquake, storms or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; or war.
10.7 Severability. If any term of this Agreement or the application thereof to any person, entity or circumstance will at any time or to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under any provision of applicable law, to the full extent the applicable law may be waived, it is hereby waived. To the extent such law cannot be waived, the invalid or unenforceable term will be replaced by a valid term that comes closest to the intentions of the parties to this Agreement. In case such replacement term cannot be agreed upon, the invalidity of the term in question will not affect the validity of any other term or this Agreement as a whole.
10.8 Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties with respect to the subject matter of this Agreement. No modification or amendment of any of the provisions of this Agreement will be effective unless in writing and signed by the parties to this Agreement; provided, however, You agree that AWR may amend this Agreement effective on sixty (60) days notice (which notice may be given by posting the amended Agreement in the Services User Portal or sending it to the email address provided in connection with the Service Account), but such an amendment will apply only to Your use of the Services from and after the effective date of the Amendment. If You do not want to be bound by the amended Agreement, You may terminate the Services, effective upon expiration of the sixty (60) day period, by giving notice to AWR by email to email@example.com by no later than thirty (30) days after the date of AWR’s notice to You described above. If You fail to give such notice to AWR within such thirty (30) day period, You shall be deemed to have accepted such amended Agreement. Any such amendment will not be understood as extending the term of this Agreement or waiving any right of AWR to suspend Services or terminate this Agreement. Unless otherwise provided herein, this Agreement constitutes the complete and final agreement between AWR and You with respect to the Services and supersedes any and all prior or contemporaneous oral or written agreements between the parties concerning the Services.
AntSyn End User License Agreement
1. GRANT OF LICENSE
X5 hereby grants to you a limited, non-exclusive license to use the Application subject to the following terms:
You may not: (i) frame or link to the Application except as expressly permitted in writing by X5; (ii) permit other individuals to use the Application; (iii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), tamper with, or create derivative works based upon the Application, including the Content, or any portion thereof (including without limitation any watermarks, security components and digital rights management); (iv) copy the Application or any portion thereof; (v) sell, rent, lease, transfer, distribute, broadcast, display or otherwise assign any rights to the Application to any third party; (vi) remove any proprietary notices or labels on the Application; (vii) use the Application in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction; (viii) use the Application for any illegal purpose; (ix)[reserved];(x) use the Application to invade the privacy of, or obtain personal information about, any Application account holder or user, or to obtain a list of Application account holders or users; (xi) copy, modify, erase or damage any information contained on computer servers used or controlled by X5 or any third party used in connection with the Application or the services provided through the Application; (xii) use the Application to violate any legal right of any third party, including any publicity or privacy right, copyright or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful or otherwise objectionable; or use any data mining, robots, or similar data gathering and or extraction tools in connection with the Application; (xiii) use the Application to post or transmit any unsolicited advertising or promotional materials; (xiv) access or use any password protected, secure or non-public areas of the Application except as specifically authorized in writing by X5 (unauthorized individuals attempting to access these areas of the Application may be subject to prosecution); (xv) impersonate or misrepresent your affiliation with any person or entity; (xvi) use any automated means to access or use the Application (including scripts, "bots" or similar software); or (xvii) modify, translate, reverse engineer, decompile, reproduce, disassemble, or otherwise gain access to or attempt to gain access to any private key or "dev key" (as that term is generally understood within the software industry) associated with the Application, the Content or the Services, or to use or attempt to use any private key or "dev key" in a manner in violation of this Agreement or the applicable AntSyn Service Terms and Conditions.
Violation of any of the foregoing restrictions may result in the termination of your account. X5 reserves any and all rights or remedies that may be available in the event of your breach of this Agreement.
Other than as specifically permitted during a free trial period, you may not use any subscription-based features of the Application unless you have paid the applicable subscription fee and agreed to the terms of the AntSyn Service Terms and Conditions. X5 is not obligated to provide any such free trial period.
You acknowledge that X5 may issue upgraded or modified versions of the Application from time to time, and may automatically electronically upgrade or modify the version of the Application that you are using on your computer. You consent to such automatic upgrading or modification, and agree that this Agreement (as amended from time to time) will govern all such versions.
The Application will operate only on those hardware and software platforms specified in the Application documentation. It is your responsibility to ensure that you have the appropriate software, hardware and Internet connection to operate the then-current version of the Application. X5 reserves the right to cease supporting any hardware or software platform at any time, with or without notice.
X5 may modify the Application at any time without notice and may discontinue any X5 web site at any time without notice.
3. TITLE TO ANTSYN INTELLECTUAL PROPERTY
X5 retains all title and ownership rights in and to the intellectual property used in AntSyn software. Except as expressly stated in this Agreement, X5 does not grant any express or implied right or license to you under any patent, copyright, trademark, or trade secret rights of X5.
4. TITLE TO CONTENT SERVED THROUGH THE APPLICATION
For paid licenses, the Content created by AntSyn, to include designs, data and other files, when served by the Application to the Licensee via download, becomes the property of the Licensee, so long as it was obtained in accordance with this agreement, and required fees were paid to X5. No such right is granted for free trials. All data on X5 servers remains X5 property, which may be removed or deleted at X5s discretion.
You agree that you shall only use the Application in a manner that does not violate any third-party rights and that complies with all applicable laws in the jurisdiction in which you use the Application, including, but not limited to, applicable restrictions concerning patents and other intellectual property rights.
You agree to provide true, accurate, current and complete information about yourself as prompted by the registration process (such information being the "Account Information"). You agree to update your Account Information in order to keep such information current. You are solely and entirely responsible for maintaining the confidentiality of your password and user name. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account.
7. BETA RELEASE OR PRE-RELEASE VERSIONS
In the event that the Software is a trial, beta release or pre-release version, the terms of this Section shall apply. Your license to use the Software may expire after a period of time after installation and the Software may cease to function or refuse login credentials. The Software you are receiving may contain more or less features than the commercial release of the Software we intend to distribute. While we intend to distribute a commercial release of the Software, we reserve the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the beta release or pre-release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
8. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, X5, ITS LICENSORS, ITS INVESTORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS (THE "X5 ENTITIES") DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
USE OF THE APPLICATION IS AT YOUR OWN RISK. THE X5 ENTITIES MAKE NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, OR ERROR FREE; NOR DO THE X5 ENTITES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. THE X5 ENTITIES MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
9. LIMITATION OF LIABILITY
ANY AND ALL RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE APPLICATION REMAINS WITH YOU. IN NO EVENT SHALL THE X5 ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE APPLICATION OR ANY PART THEREOF, EVEN IF X5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE X5 ENTITIES BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PAID FOR THE APPLICATION OR THE SPECIFIC ITEM OF CONTENT GIVING RISE TO THE APPLICABLE CLAIM FOR DAMAGES.
THE OWNERS AND LICENSORS OF THE CONTENT ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT, AND SHALL HAVE THE RIGHT TO ENFORCE THIS AGREEMENT AGAINST YOU.
You agree to indemnify and hold X5 and its parents, members, subsidiaries, affiliates, service providers, syndicators, distributors, licensors, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of or related to your violation of this Agreement, or your violation of any law, regulation or third-party right.
This Agreement (and your license) shall terminate automatically and immediately if you fail to comply with any of the limitations described in this Agreement. No notice shall be required from X5 to effectuate such termination. In addition, X5 reserves the right to terminate this Agreement and discontinue your access to the Application at any time for any reason, and with or without notice. Upon termination of this Agreement for any reason you must immediately stop using the Application.
14. CUSTOMER SERVICE
If you have any questions or concerns about your account, please contact Customer Service.
X5 may modify this Agreement at any time in its sole discretion. In the event of a material change to this Agreement we will use reasonable efforts to notify you by sending notice to the email address that you have provided to us. If any modification is unacceptable to you, you agree that your only recourse is to immediately terminate your use of the Application and destroy any copies of the Software in your possession. Your continued use of the Application following our release of a revised End User License Agreement on the Application will constitute your binding acceptance of the change. YOUR ACCEPTANCE OF THIS AGREEMENT INDICATES THAT YOU GIVE CONSENT TO X5 TO E-MAIL YOU WITH NOTICES CONCERNING MATERIAL CHANGES IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR THE SERVICES TO WHICH YOU HAVE SUBSCRIBED.
16. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS
The Application is provided with restricted rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer of Application is X5 Systems, Inc. and/or X5, with headquarters in Los Gatos, CA 95032. You acknowledge that none of the Application may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Application you are agreeing to the foregoing and are representing and warranting that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California, United States of America, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the state and federal courts sitting in San Francisco, in the State of California. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If either X5 or you employ any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
No delay or failure to take action under this Agreement shall constitute any waiver by X5 of any provision of this Agreement. This Agreement (including all documents expressly incorporated by reference) constitutes the complete and exclusive agreement between X5 and you with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void.
NOTE: AntSyn is a trademark of X5.
Last modified: January 22, 2012