使用権許諾契約書
Scalixをご利用いただく場合、以下の使用権許諾契約書にご同意いただく必要がございます。
本契約書は、「Scalixコミュニティエディション用著作権許諾契約書」と「ScalixエンタープライズエディションおよびScalixスモールビジネスエディション用契約書」の2つの契約書で構成されています。お使いのScalix製品エディションに対応する契約書が適用されます。
SCALIX COMMUNITY EDITION LICENSE AGREEMENT
OR
SCALIX ENTERPRISE EDITION AND
SMALL BUSINESS EDITION LICENSE AGREEMENT
THE SOFTWARE YOU ARE INSTALLING IS LICENSED TO YOU UNDER THE TERMS OF
A SOFTWARE LICENSE AGREEMENT. IF YOU ARE INSTALLING AN EVALUATION COPY OF
SCALIX SOFTWARE, THE LICENSE AGREEMENT WHICH YOU ACCEPTED DURING YOUR
DOWNLOAD (AND WHICH IS CONTAINED IN A TEXT FILE IN THE DOWNLOAD PACKAGE)
APPLIES. IF YOU ARE NOT INSTALLING AN EVALUATION COPY OF SCALIX SOFTWARE,
THEN ONE OF THE TWO AGREEMENTS BELOW APPLIES. THE DEFAULT INSTALLATION
INSTALLS SCALIX COMMUNITY EDITION; BY ENTERING A VALID LICENSE KEY DURING
THE INSTALLATION PROCESS, THE INSTALLATION WILL INSTEAD INSTALL SCALIX
ENTERPRISE EDITION OR SCALIX SMALL BUSINESS EDITION. YOUR INSTALLATION AND
USE OF THE SOFTWARE IS GOVERNED BY THE TERMS OF THE APPLICABLE LICENSE
AGREEMENT, I.E. IF YOU HAVE NO LICENSE KEY, THEN THE SCALIX COMMUNITY
EDITION LICENSE APPLIES; IF YOU HAVE A LICENSE KEY, THEN EITHER THE SCALIX
ENTERPRISE EDITION OR SCALIX SMALL BUSINESS EDITION LICENSE APPLIES. BY
CLICKING ON THE "ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE
BECOMING A PARTY TO SUCH APPLICABLE LICENSE AGREEMENT. IF YOU DO NOT AGREE
TO ALL OF THE TERMS OF THE APPLICABLE LICENSE AGREEMENT, CLICK THE "CANCEL"
BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. PLEASE PRINT A COPY
OF THE APPLICABLE AGREEMENT FOR YOUR FUTURE REFERENCE. IF THESE TERMS ARE
CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE
EXCLUSION OF ALL OTHER TERMS.
SCALIX COMMUNITY EDITION LICENSE AGREEMENT
This is a software license agreement between you, which means your
organization, enterprise, or other association or you personally if you
intend to use Scalix Community Edition personally ("You") and Scalix
Corporation ("Scalix", "We", or "Us"). Your acceptance of this license
agreement is required before installing and using Scalix Community Edition.
No-Cost License & Limited Functionality
This license does not require that You pay anything to Scalix.
Subject to Your full compliance with all of the terms and conditions of
this Agreement, Scalix grants to You a perpetual, non-exclusive, non-
transferable royalty-free worldwide license to install and use the Scalix
Community Edition solely with the Active Features (defined below). Scalix
Community Edition provides up to ten "full functionality" premium user
accounts, and an unlimited number of standard user accounts. You may
configure and use such accounts as You wish. Notwithstanding the
foregoing, You acknowledge that certain features of the Scalix Community
Edition may not be used without a Scalix Enterprise Edition or Scalix Small
Business Edition. For a list of the active features that You are allowed
to use with the Scalix Community Edition, please see
http://www.scalix.com/enterprise/editions/compare.php ("Active Features")
You agree that You will not to use any prohibited or non-licensed features
("Non-Active Features") without first obtaining the appropriate license
from Scalix.
Sharing Scalix Community Edition
You may not transfer this license agreement to others. If You wish to
share Scalix Community Edition with others, You may do so provided that
all of the terms of this license agreement are followed and accepted by
others.
Reselling Scalix Community Edition
If You wish to resell Scalix Community Edition, or otherwise offer
Scalix Community Edition to others or for others' use for a fee of any
sort, please contact Scalix Sales at info@scalix.com. You must contact
Scalix and receive our approval prior to offering Scalix Community Edition
to others for a fee.
Software Ownership; Software Protection
Your rights are defined in this license agreement. Scalix and its
licensors retain all right, title, and interest, including all intellectual
property rights, to Scalix Community Edition except as provided in this
license agreement. You agree that You will not use any Non-Active Features
of the Scalix Community Edition. You agree that You will not reverse
engineer, translate, disassemble, decompile, modify, or otherwise derive
the source code of Scalix Community Edition, nor will You attempt to do so
or permit others to do so (except to the extent reverse engineering
restrictions are expressly prohibited by applicable local law, and then
only to the extent so prohibited or controlled). You agree that You will
not "hack" or otherwise attempt to modify the behavior of Scalix Community
Edition for any reason. You agree that You will not remove or alter any
copyright notices or other proprietary notices in Scalix Community Edition.
From time to time Scalix may develop and release software or documentation
intended for use with Scalix Enterprise Edition or Scalix Small Business
Edition. You may not use nor attempt to use such software in conjunction
with Scalix Community Edition. The Scalix Community Edition is intended
for Your lawful use. You agree not to download, install, or use Scalix
Community Edition if so doing would be a violation of applicable law. You
agree not to publish performance benchmark results for Scalix Community
Edition without Scalix's prior written consent. You may seek such consent
by contacting Scalix at info@scalix.com.
Verification of Proper Usage & Remote Functionality
We expect that the vast majority of users of Scalix Community Edition
will comply with the terms of this license agreement. However, in order to
ensure that users are not willfully violating this agreement, You agree to
cooperate with Us and produce any records or other materials related to
Your use of Scalix Community Edition upon our reasonable request.
You acknowledge that the Scalix Community Edition includes features
that will periodically send messages to Scalix with certain statistical and
other information about Your usage, including, without limitation, the
number of mailboxes You are using, Your version of the Scalix Community
Edition, the operating system that You are using, and other hardware data.
Each time that the Scalix Community Edition sends such a message to Scalix,
Your system administrator will receive a copy of the message. You hereby
grant Scalix a perpetual, irrevocable right to use the foregoing
functionality to gather such information for aggregate, statistical
purposes.
Support and Updates
If You encounter difficulties in installing or using Scalix Community
Edition, We encourage You to visit our user forum at
http://www.scalix.com/forums/. We may from time to time offer support
plans for our Community Edition users. We may also issue updates, patches,
fixes, or enhancements to Scalix Community Edition, and such updates may
alter the functionality of Scalix Community Edition. If You have opted to
receive communications from Scalix, We will make reasonable efforts to
promptly notify You of the availability of such updates.
Limited Warranty
Scalix warrants that, to the best of our knowledge, Scalix Community
Edition does not contain any virus, Trojan horse, worm, or other malicious
code. SCALIX AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES,
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE, OR ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE,
OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO
THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Indemnity
If You desire an indemnification agreement of any sort from Scalix,
please contact Us to explore a purchase of Scalix Enterprise Edition or
Scalix Small Business Edition at info@scalix.com. Scalix does not provide
any indemnity for the Scalix Community Edition.
Termination of this License Agreement
You may terminate this license agreement, including your rights and
obligations contained herein, by uninstalling all instances of Scalix
Community Edition and destroying any copy or backup of the software, the
downloaded installation package, and any accompanying documentation. We may
terminate this license agreement immediately if You breach the terms of
this agreement, or in the limited instance that a court of competent
jurisdiction determines that Scalix Community Edition infringes the
proprietary rights of a third party. Upon the termination of this Agreement
for any reason, You shall cease all use of the Scalix Comminity Edition.
Limitation of Liability
IN NO CIRCUMSTANCE WILL SCALIX OR ITS LICENSORS HAVE ANY LIABILITY TO
YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOST PROFITS, LOST DATA,
EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF THIS LICENSE AGREEMENT OR
THE INSTALLATION OR USE OF SCALIX COMMUNITY EDITION AND HOWEVER CAUSED AND
UNDER ANY THEORY OF LIABILITY, EVEN IF SCALIX HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SCALIX'S CUMULATIVE
LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED FIVE-HUNDRED DOLLARS
($500.00). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY. THE PARTIES ACKNOWLEDGE AND AGREE THAT
THIS SECTION IS AN ESSENTIAL ELEMENT OF THE BARGAIN AND ABSENT THIS SECTION
THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL
INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY
NOT APPLY TO YOU.
U.S. Government Usage
If this license is acquired under a U.S. Government contract, use,
duplication, and disclosure of Scalix Community Edition and any
accompanying documentation by the U.S. Government is subject to
restrictions set forth in this license agreement, which incorporates all
applicable FAR provisions; without limitation, You agree that Scalix
Community Edition is delivered as "commercial computer software" as defined
in DFARS 252.227-7014 (June 1995) or as a "commercial item" as defined in
FAR 2.101(a), or as "restricted computer software" as defined in FAR
52.227-19 (Jun 1987) (or any equivalent agency regulation or contract
clause), whichever is applicable. If Scalix Community Edition is licensed
for use in the performance of a U.S government prime contract or
subcontract, You agree that Scalix Community Edition has been developed
entirely at private expense. You agree that Scalix Community Edition is
adequately marked when the restricted rights legend below is affixed to
software or to its storage media and is perceptible directly or with the
aid of a machine or device. You agree to conspicuously put the following
legend on the Scalix Community Edition media with your name and address
added below the notice:
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure is subject to Scalix's and
its licensors' standard commercial license terms and for
non-DOD Departments and Agencies of the U.S. Government, the
restrictions as set forth in FAR 52.227-19(c)(1-2)(Jun 1987).
Scalix, Inc.
149 Madison Avenue
Suite 302
New York, NY 10016 USA
Copyright (c) 2007 Scalix, Inc. All Rights Reserved.
Export
If You export, re-export or import Scalix Community Edition, You
assume responsibility for complying with applicable laws and regulations
and for obtaining required export and import authorizations.
Miscellaneous
This Agreement constitutes the complete agreement between the
parties with respect to the use of the Scalix Community Edition software
licensed hereunder and supersedes all prior or contemporaneous
understandings regarding such subject matter. This Agreement may be amended
only by a writing executed by a senior officer of Scalix. The failure of
Scalix to act with respect to a breach of this Agreement by You or others
does not constitute a waiver and shall not limit Scalix's rights with
respect to such breach or any subsequent breaches. Scalix expressly
reserves the right to assign this Agreement and to delegate any of its
obligations hereunder. You may not assign, delegate or otherwise transfer
(whether by operation of law or otherwise) this Agreement or any of Your
rights or obligations hereunder without the prior written consent of
Scalix. If any provision of this license agreement is unenforceable, such
provision will be changed to accomplish its objectives to the greatest
extent possible under applicable law and the remaining provisions will
continue in full force and effect. Exclusive jurisdiction and venue of any
actions arising out of, or relating to or in any way connected with this
license agreement or Scalix Community Edition will be in New York County,
New York if in state court, and in the Southern District of New York if
in Federal Court. Your and our respective rights and obligations under this
license agreement shall not be governed by the provisions of the 1980
United Nations Convention on Contracts for the International Sale of Goods
or the United Nations Convention on the Limitation Period in the
International Sale of Goods, as amended. This license agreement will be
governed in all respects by the laws of the State of New York, without
application of its conflicts of laws principles, and without regard to the
provisions of any state Uniform Computer Information Transactions Act or
similar federal or state laws or regulations. You agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party will not be applied in the construction or interpretation of
this license agreement.
IF I AM DOWNLOADING THE SOFTWARE, THEN BY CLICKING BELOW, I AM
INDICATING THAT I HAVE READ, UNDERSTOOD AND AM AGREEING TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
SCALIX ENTERPRISE EDITION AND SCALIX
SMALL BUSINESS EDITION LICENSE AGREEMENT
If you have entered into a binding, written agreement with Scalix
Corporation governing the license of Scalix Enterprise Edition or Scalix
Small Business Edition software, then such written agreement shall be
operative and the following license terms are not applicable. If you have
not entered into a binding written license agreement with Scalix
Corporation, then the terms of the below license govern your installation
and use of the software.
1. DEFINITIONS
For purposes of this License Agreement (the "Agreement") the
following terms shall have the meanings set forth below:
1.1 "Customer" means your organization, enterprise, or other
association or you personally if you intend to use Scalix Enterprise
Edition or Scalix Small Business Edition personally.
1.2 "Documentation" means such manuals, guides, and other similar
publications relating to the applicable components of the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software that Scalix
generally provides to its licensees from time to time.
1.3 "Premium User License" or "PUL" means a license to configure a
fully-functional, MAPI-enabled, unique mailbox for a Scalix Enterprise
Edition Software or Scalix Small Business Edition Software user via Scalix
Connect Software and a supported client application. Each PUL authorizes a
specific, identifiable, unique user mailbox, each of which may accessed by
any number of methods such as Scalix Connect software with a supported
client application, independent client applications, webmail applications,
handheld devices, etc.
1.4 "Premium User" means an individual permitted by Customer to
access and use a fully-functional, MAPI-enabled mailbox on the Scalix
Server Software.
1.5 "Scalix" means Scalix, Inc., a Delaware corporation.
1.6 "Scalix Enterprise Edition Software" means the Scalix Server
Software, Scalix Connect Software, and Scalix Web Access Software, in
executable form, as well as any patches, updates, or upgrades thereto, that
Scalix provides to the Customer.
1.7 "Scalix Small Business Edition Software" means the Scalix
Server Software, Scalix Connect Software, and Scalix Web Access Software,
in executable form, as well as any patches, updates, or upgrades thereto,
that Scalix provides to the Customer.
1.8 "Software Subscription Services" means those software update
and upgrade services described in the section identified as "SOFTWARE
SUBSCRIPTION SERVICE" herein.
1.9 "Standard User" means an individual permitted by Customer to
access and use a mailbox on the Scalix Server Software via Scalix webmail
applications, but specifically excluding Premium Users.
2. LICENSE GRANT
2.1 License Grant for Scalix Server Software. Subject to the terms
and conditions of this Agreement, Scalix grants Customer a perpetual, non-
exclusive, non-transferable, royalty-free, fully-paid, worldwide license
(without right to sublicense) to install and use the Scalix Server Software
internally in accordance with the Scalix Server Software Documentation.
2.2 Premium User License Grant. Subject to the terms and
conditions of this Agreement, Scalix grants Customer a perpetual, non-
exclusive, non-transferable, royalty-free, fully-paid, worldwide license
(without right to sublicense) to configure that number of unique mailboxes
for Premium Users as Customer has properly paid for. Further subject to the
terms and conditions of this Agreement, Customer may reproduce the Scalix
Connect Software in amounts necessary to enable mailbox access for Premium
Users, and to install and execute the Scalix Connect Software on Premium
Users' machines for use solely in conjunction with the Scalix Server
Software.
2.3 Standard User License Grant. Subject to the terms and
conditions of this Agreement, Scalix grants Customer a perpetual, non-
exclusive, non-transferable, royalty-free, fully-paid, worldwide license
(without right to sublicense) to configure that number of unique mailboxes
for Standard Users as Customer has properly paid for.
2.4 Licensing Restriction. Customer agrees not to cause or permit
the reverse engineering, translation, disassembly, or decompilation of, or
otherwise to attempt to derive the source code of, the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software, whether in
whole or in part. Customer shall not itself, and shall not permit or
encourage any third party to, use the Scalix Enterprise Edition Software or
Scalix Small Business Edition Software on a service bureau basis, to rent,
lease, distribute, transfer, or make any derivative works of or changes,
modification, or enhancements to the Scalix Enterprise Edition Software or
Scalix Small Business Edition Software. Customer shall not disclose or
publish performance benchmark results for Scalix Enterprise Edition
Software or Scalix Small Business Edition Software without Scalix's written
consent. Customer shall not use the Scalix Enterprise Edition Software or
Scalix Small Business Edition Software in any manner which is a violation
of law or regulation.
2.5 Proprietary Notices. Customer shall not remove, alter, efface,
or obscure any copyright notices or other proprietary notices or legends
from any Scalix Enterprise Edition Software, Scalix Small Business Edition
Software, or other material provided hereunder, and Customer shall
reproduce all such notices and legends whenever any such notices appear in
the Scalix Enterprise Edition Software, Scalix Small Business Edition
Software or the Documentation.
2.6 Ownership. Except as specifically provided herein, Scalix and
its licensors retain all right, title, and interest, including all
intellectual property rights, in and to the Scalix Enterprise Edition
Software and Scalix Small Business Edition Software. Except for the express
licenses granted in this section "LICENSE GRANT," Scalix and its licensors
reserve all rights in and to the Scalix Enterprise Edition Software and
Scalix Small Business Edition Software.
2.7 Evidence of Compliance. Upon request of Scalix, Customer shall
promptly, and in any event within thirty (30) days, provide Scalix with any
and all evidence reasonably necessary to confirm Customer's compliance with
the provisions of this section "LICENSE GRANT".
3. LICENSE FEES AND REPORTING
3.1 License Fees. This License Agreement is valid only if Customer
(or a Partner if Customers purchases the Scalix Enterprise Edition Software
or Scalix Small Business Edition Software through a Scalix Partner) pays to
Scalix the agreed-upon aggregate license fees. All such license fees are
non-cancelable, nonrefundable, and non-contingent, and are payable in
United States currency in accordance with the terms of sale.
3.2 Reporting and Auditing.
(a) Customer shall maintain complete, clear, and accurate
accounting, user and distribution records, in accordance with generally
accepted accounting practices, to support and document its use of the
Scalix Enterprise Edition Software or Scalix Small Business Edition
Software pursuant to this Agreement. Customer shall, upon written request
from Scalix, provide access to such records to an independent auditor
chosen by Scalix for the purposes of audit and to allow such auditor to
make copies and summaries of such records.
(b) If any such audit discloses a shortfall in the reporting
of the number of Scalix Enterprise Edition Software or Scalix Small
Business Edition Software User Licenses, Customer shall immediately pay all
license fees and late fees associated with such shortfall and, if the
shortfall is more than five percent (5%) for any period, Customer agrees to
pay or reimburse Scalix for the expenses of such audit.
4. LIMITED WARRANTIES
4.1 Limited Warranty. Scalix warrants that for a period of ninety
(90) days following delivery of the Scalix Enterprise Edition Software or
Scalix Small Business Edition Software to Customer, the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software will perform
substantially in accordance with the accompanying Documentation, provided
that: (a) Customer remains a compliant, continuous subscriber to Software
Subscription Services and has installed all patches or updates made
available to Customer by Scalix; (b) Customer is using the Scalix
Enterprise Edition Software or Scalix Small Business Edition Software in
accordance with Scalix's hardware and software guidelines; (c) any error or
defect detected is reproducible by Scalix; (d) the performance issue,
error, or defect does not relate to third-party software; and (e) Customer
notifies Scalix of such nonconformance within the warranty period. Neither
Scalix nor its licensors represent or warrant that the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software will be error-
free or will operate without interruption.
4.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION
"LIMITED WARRANTIES," SCALIX HEREBY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SCALIX ENTERPRISE
EDITION SOFTWARE OR SCALIX SMALL BUSINESS EDITION SOFTWARE, INCLUDING ANY
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE.
5. SOFTWARE SUBSCRIPTION SERVICE
5.1 Software Subscription Service. So long as Customer remains a
compliant, continuing subscriber to Scalix's Software Subscription Service,
Scalix will make available to Customer all updates or upgrades to the
Scalix Enterprise Edition Software or Scalix Small Business Edition
Software that it generally makes available to its subscribers. In addition,
as a continuing subscriber to Scalix's Software Subscription Service,
Customer shall have access to on-line documentation, Scalix-produced
webcasts, and Scalix's online download center. From time to time Scalix may
release an update that it deems an "Essential Upgrade;" in such case,
Customer shall promptly replace superseded version of its Scalix Enterprise
Edition Software or Scalix Small Business Edition Software with such
Essential Upgrade. Customer recognizes that the Scalix Enterprise Edition
Software and Scalix Small Business Edition Software operate as an
integrated technology and therefore agrees to employ the most recent
version of the Scalix Enterprise Edition Software or Scalix Small Business
Edition Software as made available by Scalix to Customer. Failure of
Customer to comply with this Section will relieve Scalix of its warranty
obligations, indemnification obligations, and limit any liability of Scalix
or its licensors for any resulting damages, to the extent such damages
would have been avoided by Customer's compliance. If Customer ceases to
subscribe to the Software Subscription Service, Customer may reenroll only
by paying all of the subscription service fees Customer would have paid had
Customer's subscription not lapsed.
6. SUPPORT SERVICES
6.1 Support Services. Scalix offers a variety of Support Services
as detailed on the Scalix website and in promotional materials from time to
time.
7. INDEMNIFICATION
7.1 Indemnity. Scalix shall defend or settle and pay any damages
finally awarded, claims, costs, and fees (including reasonable attorneys'
fees) with respect to any third-party claims brought against Customer that
the Scalix Enterprise Edition Software or Scalix Small Business Edition
Software as used within the scope of this Agreement infringes any trade
secret or United States copyright of any third party, provided that (a)
Customer notifies Scalix promptly in writing of the claim; (b) Scalix has
sole control of the defense and all related settlement negotiations; and
(c) Customer provides Scalix with all necessary assistance, information,
and authority to perform these duties. To the extent that any delay by
Customer in notifying Scalix results in any cost, expense, or liability to
Scalix which would otherwise have been avoided, Scalix shall be relieved of
its obligation to indemnify and shall be entitled to deduct such amount
from sums paid or collect such amount from Customer.
7.2 Exclusions. Neither Scalix nor its licensors shall have any
liability for any claim of infringement based on or arising from (a) use of
any version other than the latest commercially available version of the
Scalix Enterprise Edition Software or Scalix Small Business Edition
Software made available to Customer, to the extent the infringement would
have been avoided by use of such version; (b) modification of the Scalix
Enterprise Edition Software or Scalix Small Business Edition Software by
Customer or any third party; (c) use of the Scalix Enterprise Edition
Software or Scalix Small Business Edition Software which exceeds the
licenses granted by Scalix hereunder; or (d) the combination or use of the
Scalix Enterprise Edition Software or Scalix Small Business Edition
Software furnished hereunder with materials not furnished by Scalix to the
extent such infringement would have been avoided by use of the Scalix
Enterprise Edition Software or Scalix Small Business Edition Software
alone.
7.3 Remedies. In the event the Scalix Enterprise Edition Software
or Scalix Small Business Edition Software is held to, or Scalix believes is
likely to be held to, infringe any third-party intellectual property
rights, Scalix shall have the right at its sole option and expense to (i)
substitute or modify the Scalix Enterprise Edition Software or Scalix Small
Business Edition Software so that it is non-infringing, while retaining
substantially equivalent features and functionality as set forth in the
Documentation; (ii) obtain for Customer a license to continue using the
Scalix Enterprise Edition Software or Scalix Small Business Edition
Software under commercially reasonable terms; or (iii) if (i) and (ii) are
not reasonably practicable as determined by Scalix, terminate this
Agreement as to the infringing Scalix Enterprise Edition Software or Scalix
Small Business Edition Software and return to Customer the license fees
paid to Scalix with respect thereto, depreciated on a 5-year straight-line
basis from the Effective Date in full and complete satisfaction of Scalix's
and its licensors' liability hereunder.
7.4 Sole Obligation. The foregoing indemnity states the sole
obligation and exclusive liability of Scalix and its licensors, and
Customer's sole recourse and remedy, for any claim of infringement of an
intellectual property right or proprietary right by the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall become effective on the earlier of
(1) the purchase date of the license between Scalix and Customer, and (2)
the installation of the Scalix Enterprise Edition Software or Scalix Small
Business Edition Software, and shall remain in effect unless terminated as
permitted by this Agreement.
8.2 Termination. If at any time, either party defaults in a
payment or other material obligation under this Agreement and, in the case
of breaches capable of cure (other than the payment of license or other
fees payable to Scalix), fails to completely cure such default for a period
of thirty (30) days after written notice of default from the non-breaching
party, the non-breaching party may immediately terminate this Agreement,
upon written notice of termination given to the defaulting party. Scalix
may terminate this Agreement by written notice immediately upon any breach
of sections "LICENSE GRANT," "LICENSE FEES AND REPORTING," and
"CONFIDENTIALITY." This Agreement shall terminate upon the election of and
notice from a party to the other if the other party is adjudged insolvent
or bankrupt, or the institution of any proceedings by or against the other
party seeking relief, reorganization or arrangement under any laws relating
to insolvency, or any assignment for the benefit of creditors, or the
appointment of a receiver, liquidator or trustee of any of the other
party's property or assets, or the liquidation, dissolution or winding up
of the other party's business.
8.3 Effect of Termination. Upon termination of this Agreement for
any reason, (i) all rights and licenses granted to Customer shall
automatically terminate, and (ii) Customer shall certify to Scalix that all
of the Scalix Enterprise Edition Software, Scalix Small Business Edition
Software and Documentation in Customer's possession has been destroyed or
erased from Customer's equipment. Sections "DEFINITIONS," "LICENSE FEES AND
REPORTING," "LIMITED WARRANTIES," "INDEMNIFICATION," "CONFIDENTIALITY,"
"LIMITATION OF LIABILITY," and "MISCELLANEOUS," and subsections
"Proprietary Notices," "Ownership," and "Effect of Termination" shall
survive any expiration or termination of this Agreement. Except as
expressly provided otherwise in this Agreement, (i) all remedies available
to either party are cumulative and not exclusive; and (ii) termination of
this Agreement or any license shall not limit either party from pursuing
other remedies available to it, including injunctive relief. Upon
termination, all amounts owed under this Agreement shall immediately become
due and payable.
9. CONFIDENTIALITY
9.1 Definition. For purposes of this Agreement, "Confidential
Information" of a party means non-public information or materials disclosed
or otherwise provided by such party ("Disclosing Party") to the other party
("Receiving Party") that are identified as confidential or proprietary.
This Agreement is expressly included in the definition of "Confidential
Information." Confidential Information does not include that which (i) was
known to the Receiving Party, without restriction and without duty of
confidentiality, at the time of disclosure, as evidenced by the written
records of Receiving Party, (ii) is or becomes part of public knowledge
other than as a result of any action or inaction of the Receiving Party,
(iii) is obtained by the Receiving Party from an unrelated third party
without a duty of confidentiality, or (iv) is independently developed by
the Receiving Party without reliance upon or use of the Confidential
Information of the Disclosing Party.
9.2 Restrictions on Use and Disclosure. The Receiving Party shall
not use Confidential Information of the Disclosing Party for any purpose
other than in furtherance of this Agreement and the activities described
herein. The Receiving Party shall not disclose Confidential Information of
the Disclosing Party to any third parties except as otherwise permitted
hereunder. The Receiving Party may disclose Confidential Information of the
Disclosing Party only to those related parties who have a need to know such
Confidential Information and who are bound to retain the confidentiality
thereof under provisions no less restrictive than those required by the
Receiving Party for its own comparable Confidential Information. The
Receiving Party shall maintain Confidential Information of the Disclosing
Party with at least the same degree of care it uses to protect its own
proprietary information of a similar nature or sensitivity, but in no event
with less than reasonable care.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL SCALIX OR ITS LICENSORS HAVE ANY LIABILITY TO CUSTOMER OR
ANYONE CLAIMING THROUGH OR UNDER CUSTOMER FOR ANY LOST PROFITS, LOST DATA,
EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF THIS AGREEMENT AND HOWEVER
CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF SCALIX HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SCALIX'S CUMULATIVE
LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY
CUSTOMER TO SCALIX PURSUANT TO THIS AGREEMENT WITHIN TWELVE MONTHS OF THE
EVENT GIVING RISE TO ANY SUCH CLAIM. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE
BARGAIN AND ABSENT THIS SECTION THE ECONOMIC TERMS OF THIS AGREEMENT WOULD
BE SUBSTANTIALLY DIFFERENT.
11. MISCELLANEOUS
All notices under this Agreement must be delivered in writing by
courier, by electronic facsimile, or by certified or registered mail,
(postage prepaid and return receipt requested) to the other party at the
address set forth on the cover page hereto (or such other address
designated by a party in writing), and will be effective upon receipt or
three (3) business days after being deposited in the mail as required
above, whichever occurs sooner. If Customer exports, re-exports or imports
the Scalix Enterprise Edition Software, Scalix Small Business Edition
Software or Documentation, then Customer assumes responsibility for
complying with applicable laws and regulations and for obtaining required
export and import authorizations. Scalix may suspend performance if
Customer is in violation of any applicable laws or regulations. Neither
party shall be liable to the other in any way whatsoever for any failure or
delay in performance of any of the obligations under this Agreement (other
than obligations to make payment), arising out of any event or circumstance
beyond the reasonable control of such party (including, without limitation,
war, rebellion, civil commotion, strikes, lock-outs or industrial disputes;
fire, explosion, earthquake, acts of God, flood, drought or bad weather;
the unavailability of deliveries, supplies, software, disks or other media
or the requisitioning or other act or order by any government department,
council or other constituted body). All waivers must be in writing. Any
waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion. Customer's relationship to Scalix is that
of an independent contractor, and neither party is an agent or partner of
the other. Either party may individually issue a press release discussing
Customer's plans to use, or the use of, Scalix Enterprise Edition Software
or Scalix Small Business Edition Software, and/or any publicly available
information describing Scalix's or Customer's businesses, products or
services. Customer consents to the use of its name on Scalix customer
lists. Upon the request of Scalix, Customer will act as a reference for
Scalix. If any provision of this Agreement is unenforceable, such provision
will be changed to accomplish the objectives of such provision to the
greatest extent possible under applicable law and the remaining provisions
will continue in full force and effect. This Agreement may be executed in
counterparts and signature pages may be transmitted by facsimile, each of
which will be considered an original, but all of which together will
constitute the same instrument. Customer may not assign or delegate this
Agreement or its rights or duties hereunder (by operation of law or
otherwise) without the express written consent of Scalix. Any assignment
not in conformity with the foregoing will be null and void. Exclusive
jurisdiction and venue of any actions arising out of, or relating to or in
any way connected with this Agreement, its negotiation or termination, or
the Scalix Enterprise Edition Software, Scalix Small Business Edition
Software or Documentation provided or to be provided by Scalix, will be in
New York County, New York if in state court, and in the Southern
District of New York if in Federal Court. In any litigation in which the
parties are adverse, the parties agree to waive their respective rights to
a trial by jury. The rights and obligations of the parties under this
Agreement shall not be governed by the provisions of the 1980 United
Nations Convention on Contracts for the International Sale of Goods or the
United Nations Convention on the Limitation Period in the International
Sale of Goods, as amended. If this license is acquired under a U.S.
Government contract, use, duplication, and disclosure of the Scalix
Enterprise Edition Software, Scalix Small Business Edition Software and
Documentation by the U.S. Government is subject to restrictions set forth
in this Agreement, which incorporates all applicable FAR provisions;
without limitation, Customer agrees that the Scalix Enterprise Edition
Software or Scalix Small Business Edition Software is delivered as
"commercial computer software" as defined in DFARS 252.227-7014 (June 1995)
or as a "commercial item" as defined in FAR 2.101(a), or as "restricted
computer software" as defined in FAR 52.227-19 (Jun 1987) (or any
equivalent agency regulation or contract clause), whichever is applicable.
If the Scalix Enterprise Edition Software or Scalix Small Business Edition
Software is licensed for use in the performance of a U.S government prime
contract or subcontract, Customer agrees that the Scalix Enterprise Edition
Software or Scalix Small Business Edition Software has been developed
entirely at private expense. Customer agrees that the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software, and any
derivatives or modifications, is adequately marked when the restricted
rights legend below is affixed to the Scalix Enterprise Edition Software,
Scalix Small Business Edition Software or to its storage media and is
perceptible directly or with the aid of a machine or device. Customer
agrees to conspicuously put the following legend on the Scalix Enterprise
Edition Software or Scalix Small Business Edition Software media with
Customer's name and address added below the notice:
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure is subject to Scalix's and its
licensors' standard commercial license terms and for non-DOD
Departments and Agencies of the U.S. Government, the
restrictions as set forth in FAR 52.227-19(c)(1-2)(Jun 1987).
Scalix, Inc.
149 Madison Avenue
Suite 302
New York, NY 10016 USA
Copyright (c) 2007 Scalix, Inc. All Rights Reserved.
This Agreement will be governed in all respects by the laws of the State of
New York, without application of its conflicts of laws principles, and
without regard to the provisions of any state Uniform Computer Information
Transactions Act or similar federal or state laws or regulations. This
Agreement may be amended only by a written document signed by both parties
that specifically references this Agreement. No purchase order or other
document that purports to modify or supplement this Agreement will add to
or vary the terms of the Agreement, and all proposed variations or
additions (whether submitted by Scalix or Customer) are deemed material and
objected to unless otherwise agreed to in a writing signed by both parties.
The parties hereto agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party will not be
applied in the construction or interpretation of this Agreement. As used in
this Agreement, the words "include" and "including," and variations
thereof, will not be deemed to be terms of limitation.
