This SOFTWARE is being provided to You by Xiaoyalab. By installing, downloading, copying, or otherwise using this Xiaoyalab SOFTWARE, You agree to the following terms and conditions (“Agreement”). If You do not agree to the terms of this Agreement, promptly uninstall and return or delete any copies of the SOFTWARE and all associated documentation in your possession.
1. Definitions – “SOFTWARE” means the computer software program that accompanies this Agreement and includes any available software user manuals, reference manuals and installation guides, or portions thereof, either in electronic or printed form, in any media whatsoever. “Use” of this SOFTWARE means that You have loaded, installed, or run this SOFTWARE on a computer or similar device. “Backup Copy” means one non-transferable copy of this SOFTWARE created for archival purposes only that is not installed or Used on any computer or workstation (or number of users covered in a multi-user or site license) except for back-up use during emergency situations. “Limited Trial Version” means that You may evaluate the Limited Trial Version of this SOFTWARE without purchasing a license.
2. License Grant – Xiaoyalab has agreed to license use of the SOFTWARE to You pursuant to this Agreement and the terms and conditions set out below.
2.1 Xiaoyalab grants to You a limited, non-exclusive, non-transferable, revocable license to install and use the SOFTWARE subject to the terms and conditions of this Agreement. You may make one additional Backup Copy of the SOFTWARE.
2.2 Unless otherwise authorized herein, the SOFTWARE, any accompanying documentation, and the license herein granted shall not be copied, shared, distributed, re-sold, offered for re-sale, transferred or sub-licensed in whole or in part. For information about redistribution of this SOFTWARE, please contact Xiaoyalab.
2.3 Your license to use the SOFTWARE as granted herein only permits You to use the version of the SOFTWARE which You have installed or purchased from Xiaoyalab. It does not permit You to use any other version of the SOFTWARE. The use of any other version of the SOFTWARE will be governed by a separate agreement between You and Xiaoyalab.
2.4 Limited Trial Version use -You may evaluate and use the Limited Trial Version of the SOFTWARE without purchasing a licens for a maximum number of days indicated and permitted by Xiaoyalab, or You may have limited access to some of the features and functionality of the SOFTWARE. In order to use or continue to use all the features and functionality of the SOFTWARE You must purchase a license from Xiaoyalab. For more information about purchasing a license to use the SOFTWARE, please contact Xiaoyalab or visit http://www.xiaoyalab.com.
2.5 Distribution of Limited Trial Version – The Limited Trial Version of the SOFTWARE may be freely distributed, provided that:
i. Such distribution includes only the original SOFTWARE supplied by Xiaoyalab. You may not alter, delete or add any files in the distribution of the SOFTWARE or modify the SOFTWARE in any way;
ii. The limited evaluation nature of the Limited Trial Version SOFTWARE is not misrepresented;
iii. No money is charged to the person receiving the Limited Trial Version SOFTWARE, beyond reasonable cost of packaging and other overhead, if applicable; and
iv. You provide prior email or written notice to Xiaoyalab that You are distributing the Limited Trial Version SOFTWARE and receive written confirmation of Xiaoyalab’s authorization for such distribution. If the Limited Trial Version SOFTWARE is being distributed with other hardware, media or software, Xiaoyalab’s prior written authorization is required. You may be required to report to us the number of units of the Limited Trial Version SOFTWARE distributed from time to time.
3. License Fee – Your right to use the SOFTWARE is limited to the number of licenses purchased by You and for as long as the SOFTWARE is being supported by Xiaoyalab. By purchasing a license to use the Software, Xiaoyalab grants You the limited right to use the features and functionality of the SOFTWARE and does not transfer title of the SOFTWARE to You. Technical support services related to the SOFTWARE shall be provided to You free of charge for a limited number of days (“Initial Support Period”) for each valid license purchased by You. Upon the expiration of the Initial Support Period, You will be required to purchase a maintenance support license in order to continue to receive technical support for the Software. For more information about purchasing additional licenses of this SOFTWARE or renewing your maintenance support license, please contact Xiaoyalab or visit http://www.xiaoyalab.com.
4. Licensee’s Obligations – As the Licensee You hereby undertake the following obligations.
4.1 Use Restrictions – You shall Use this SOFTWARE in compliance with all applicable laws and not for any unlawful purpose.
(a) not to access or use a licensed copy of the SOFTWARE on more than one personal stand-alone computer, or otherwise allow the SOFTWARE to be accessed or used by more than one user at any one time except as expressly authorized by this Agreement or as authorized in accordance with the license that You have purchased from Xiaoyalab;
(b) to supervise and control the use of the SOFTWARE in accordance with the terms of this Agreement;
(c) to ensure your employees, sub-contractors and other agents who have authorized access to the SOFTWARE are made aware of the terms of this Agreement;
(d) to not alter, change, remove or obscure any notices (including without limitation copyright, trademark, or any other intellectual property notices) as to ownership of the SOFTWARE; and
(e) to not print, copy, reproduce, translate, adapt, vary, alter, change, reverse engineer, decompile or modify the SOFTWARE by any means or in any way, without the express consent of Xiaoyalab, except as expressly authorized in this Agreement;
4.2 Intellectual Property Restrictions – Xiaoyalab’s name, trademarks, logo and graphics file that represents the SOFTWARE shall not be used in any way to promote any products developed with this SOFTWARE. The SOFTWARE contains copyrighted material, trade secrets and other proprietary material. You will not deliver, disclose, or convey to any third party, either directly or indirectly, the content of the SOFTWARE. You shall not create any derivative works or other works that are based upon or derived from the SOFTWARE in whole or in part. Xiaoyalab retains sole and exclusive ownership of all right, title and interest in and to the SOFTWARE and all intellectual property rights relating thereto. The SOFTWARE is protected without limitation by Canadian copyright law and international copyright treaty provisions. All rights not expressly granted hereunder are reserved by Xiaoyalab.
5. Disclaimer of Warranty – THE SOFTWARE IS BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. XIAOYALAB MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE AND EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
6. Limitation of Liability – YOU WILL INDEMNIFY, HOLD HARMLESS, AND DEFEND XIAOYALAB, ITS OFFICERS, EMPLOYEES, AGENTS, AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, DEMAND AND COSTS RESULTING FROM OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SOFTWARE. IN NO EVENT WILL XIAOYALAB, ITS EMPLOYEES, OFFICERS OR AGENTS BE LIABLE FOR ANY LOST REVENUE, LOST PROFIT OR LOSS OF DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, PERFORMANCE OR USE OF ANY OTHER MATTERS HEREUNDER WHETHER BASED UPON CONTRACT, TORT, OR ANY OTHER THEORY INCLUDING NEGLIGENCE, EVEN IF XIAOYALAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Xiaoyalab’s entire liability to You, without exception, exceed the amount paid by You for the SOFTWARE, less any applicable taxes and shipping fees, in exchange for the return of the SOFTWARE, all copies, registration papers and manuals, and all materials that constitute a transfer of license from the customer back to Xiaoyalab. Such reimbursement will only occur if the SOFTWARE was purchased directly from Xiaoyalab. If You purchased the Software through a reseller, distributor, retailer, or any other third party, You need to request a refund directly from such parties.
7. Waiver – Failure by Xiaoyalab to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a present or future waiver of Xiaoyalab’s rights under this Agreement, nor in any way affect the ability of Xiaoyalab to enforce each and every such provision thereafter.
8. Amending These Terms – Xiaoyalab may amend any of the terms of this Agreement by (a) providing written notice to You of such amendments; and/or (b) displaying such amendments or an amended copy of this Agreement to You during your installation and/or execution of the SOFTWARE. Without limiting the methods by which You may accept such amended terms, You acknowledge and agree that your continued use of the SOFTWARE after You are made aware of any amended terms to this Agreement will constitute your acceptance of such amended terms.
9. Governing Law – This Agreement shall be governed exclusively by the laws of the Province of British Columbia and the laws of Canada applicable therein excluding application of any conflict of laws principles and the United Nations Convention on Contracts for the International Sale of Goods. You hereby irrevocably attorn and submit to the exclusive jurisdiction of the courts of Victoria, British Columbia, Canada, and any competent courts of appeal therefrom.
10. Termination – Any failure by You to comply with the terms and conditions of this Agreement will result in automatic and immediate termination of this Agreement including the license hereunder. Upon termination of this Agreement for any reason, You agree to immediately cease Use of this SOFTWARE and return or destroy all copies of the SOFTWARE and any accompanying documentation or media. The rights and obligations in Sections 4.2, 6, 7 and 9 shall survive the termination of this Agreement.
11. Consent to Use of Data. If You have purchased a license from Xiaoyalab to use the SOFTWARE, You may be required to activate the SOFTWARE through the Internet. There are technological measures within the SOFTWARE that are designed to prevent unlicensed use of the SOFTWARE. Xiaoyalab will use those measures to confirm You have a valid licensed copy of the SOFTWARE. Xiaoyalab may automatically check the version and licensing state of the SOFTWARE that You are utilizing in order to determine if SOFTWARE updates, upgrades, or fixes are available. You agree that Xiaoyalab may collect and use information gathered in any manner as part of the product support services provided to You, if any, related to this SOFTWARE. Information collected may include without limitation IP addresses, and information derived from the operating system configuration, software and hardware configurations of the computer. The SOFTWARE will not collect any personally identifiable information from your computer location or workstation during this process.
12. Software Maintenance and Support. You acknowledge that Xiaoyalab may offer to provide You with updates, upgrades, and provide technical support for the SOFTWARE, but is not obliged to do so unless You have purchased a SOFTWARE Maintenance and Support license that entitles You to SOFTWARE updates, upgrades, and technical support for a specified period of time. If no license term is specified at the time You purchase a subscription license, the term will be one (1) year from the date of your purchase. You acknowledge and agree that following the expiration of the SOFTWARE Maintenance and Support license, You may no longer receive any SOFTWARE updates, upgrades, or technical support until You purchase another SOFTWARE Maintenance and Support license. You also acknowledge and agree that certain features and functionality of the SOFTWARE may be limited unless You purchase another license. For more information about updates, upgrades and software maintenance and support, please contact Xiaoyalab or visit http:// www.xiaoyalab.com.