Software License
QIXIT EMAIL CLIENT SOFTWARE LICENSE
PLEASE READ THIS QIXIT EMAIL CLIENT SOFTWARE LICENSE (“LICENSE”) CAREFULLY BY DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE YOU AGREE TO BE BOUND BY THIS LICENSE.
IF YOU DO NOT AGREE TO THIS LICENSE, DO NOT DOWNLOAD THE SOFTWARE, DO NOT CLICK THE “I AGREE” BUTTON IF YOU HAVE BEGUN TO INSTALL THE SOFTWARE, AND DO NOT USE THE SOFTWARE. DOWNLOAD, INSTALLATION, AND USE OF THIS SOFTWARE IS ONLY ALLOWED FOR THOSE PARTIES WHO AGREE TO THE TERMS OF THIS SOFTWARE LICENSE. EXCEPT AS SPECIFICALLY IDENTIFIED HEREIN, THIS AGREEMENT DOES NOT SUPERSEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND QIXIT.
1. License Grant. Subject to the terms and conditions of this License and the Beta User Non-Disclosure Agreement, Terms of Use, and Service Agreement posted at www.QIXIT.com (all of which are incorporated herein by reference) Qix Information Technology LLC (“Qixit”) hereby grants you a non-exclusive and non-transferable license to, during the term of this License, (a) install and use the executable object code version of the Qixit Email Client Software (the “Qixit Software”) within the United States and (b) use the user manuals which may accompany the Qixit Software, whether in hard copy or electronic form (the “Documentation”) within the United States. The rights granted in this License are limited to Qixit’s and its licensors’ intellectual property rights in the Qixit Software and Documentation and do not include any other patents or intellectual property rights. You own the media on which the Qixit Software and Documentation is recorded but Qixit and/or Qixit’s licensor(s) retain ownership of the Qixit Software and Documentation itself.
2. Restrictions and Updates. The licenses granted in Section 1 above extend only to you and not to any third party. Without limiting any other provision contained in this License and subject to applicable law, you agree not to (a) reproduce the Qixit Software or the Documentation except for reproduction that is incidental and necessary for the use and installation thereof, (b) permit any third party to use or access the Qixit Software or the Documentation, (c) create derivative works based on the Qixit Software or Documentation or cause or permit others to do so, (d) modify, reverse engineer, translate, disassemble, enable disabled features, or decompile any of the Qixit Software, or cause or permit others to do so, (e) remove any title, trademark, copyright and/or restricted rights notices or labels on the Qixit Software or the Documentation, (f) install or otherwise use the Qixit Software on any computer hardware other than the compatible hardware as expressly identified by Qixit, (g) rent, lease, lend or sublicense the Qixit Software or the Documentation, (h) make the Qixit Software available over a network where it could be used by multiple computers at the same time, and/or (i) distribute the Qixit Software or Documentation to any third party. Qixit shall not have any obligation under this License or otherwise to provide any upgrades, updates, patches, corrections, changes, enhancements or modifications to the Qixit Software or Documentation, or to otherwise correct any errors or defects in the Qixit Software and/or the Documentation.
3. Title. You acknowledge and agree that title to the Qixit Software and Documentation including, without limitation, all copies thereof, is owned by, and shall be retained by, Qixit and/or its applicable licensors. You further acknowledge and agree that all intellectual property rights in and to the Qixit Software and the Documentation including, without limitation, all patents, copyrights, trademarks and trade secrets are and shall remain the property of Qixit and/or its applicable licensors. The Qixit Software and the Documentation are protected by the copyright laws of the United States and international copyright treaties. All rights in and to the Qixit Software and the Documentation not expressly granted in this License are hereby reserved by Qixit.
4. Confidentiality. Subject to the further provisions of this Section 4 and to applicable law, all Qixit Software and Documentation shall be considered Qixit’s confidential trade secret information (“Confidential Information”). Accordingly, you agree not to (a) use Confidential Information other than for purposes expressly provided for in this License, and (b) disclose Confidential Information. The term “Confidential Information” does not include information that is part of the public domain, or becomes a part of the public domain through no direct or indirect act or omission of yours. In addition, the term “Confidential Information” does not include information that (y) is known by you prior to Qixit’s disclosure of such information to you and without restriction on use or disclosure, and/or (z) lawfully and properly is disclosed to you by a third party not under an obligation of confidence and without restriction on use or disclosure.
5. Limited Warranty and Disclaimer.
5.1 Limited Warranty. If you obtained the Qixit Software on media provided by Qixit, then Qixit warrants that such media shall be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original delivery.
5.2 Sole and Exclusive Remedy. THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 ABOVE, IF APPLICABLE, IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES, IF ANY, CREATED BY ANY DOCUMENTATION, PACKAGING OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. QIXIT’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 ABOVE, TO THE EXCLUSION OF ALL OTHER REMEDIES, IS SET FORTH BELOW IN THIS SECTION 5.2. In the event of a breach of the limited warranty set forth in Section 5.1 above, Qixit shall replace the Qixit Software; provided, however, that you notify Qixit of any such breach before the expiration of the applicable ninety (90) day warranty period. FOR THE AVOIDANCE OF DOUBT, THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 ABOVE AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL DELIVERY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5.3 Disclaimer of Warranties. You expressly acknowledge and agree that use of the Qixit Software and Documentation is at your sole risk. Except as expressly provided in Section 5.1 above to the maximum extent permitted by applicable law, the Qixit Software and the Documentation are provided to you on an “AS IS” basis. Except as expressly provided in Section 5.1 above and to the maximum extent permitted by applicable law, Qixit makes no representations or warranties relating to the Qixit Software or the Documentation including, without limitation, representations or warranties that (a) the Qixit Software shall meet your requirements, (b) the operation of the Qixit Software will be uninterrupted or error free, or (c) any defects in the Qixit Software will be corrected. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1 ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QIXIT HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT QIXIT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO THE QIXIT SOFTWARE, THE DOCUMENTATION, AND ALL PARTS AND ELEMENTS THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QIXIT FURTHER DISCLAIMS ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF QUIET ENJOYMENT, TITLE AND NON‑INFRINGEMENT WITH RESPECT TO THE QIXIT SOFTWARE AND THE DOCUMENTATION. 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.
6. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL QIXIT OR ITS LICENSORS BE LIABLE FOR PERSONAL INJURY OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LICENSE, THE QIXIT SOFTWARE OR THE DOCUMENTATION, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF QIXIT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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. To the extent not prohibited by law, in no event shall Qixit’s total liability to you for all damages exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the remedy ser forth in Section 5.2 above fails of its essential purpose.
7. Risk Allocation. You acknowledge and agree that the provisions of Sections 5 and 6 above represent a reasonable allocation of the risks under this License. Qixit’s willingness to distribute the Qixit Software and Documentation to you reflects this allocation of risk.
8. Term and Termination.
8.1 Term. The term of this License shall commence on the Effective Date and continue until terminated as provided in Section 8.2 or Section 9 below.
8.2 Termination. Your rights under this License are conditioned upon your strict performance and keeping of all agreements, duties and obligations contained herein. Accordingly, Qixit may terminate this License immediately by giving notice to you if you fail to comply with any term(s) of this License.
8.3 Your Duties upon Termination. Upon the termination of this License for any reason, you agree to (a) immediately cease using all Qixit Software and Documentation, and (b) delete and destroy all copies of the Qixit Software and Documentation in your possession or under you control.
9. Infringement.If the Qixit Software and/or the Documentation, and/or your use thereof in accordance with the license granted in this License, becomes, or in Qixit’s opinion may become, the subject of a claim of infringement by a third party, then Qixit may, in it sole and absolute discretion, either (a) procure for you the right to continue using the Qixit Software or Documentation, as provided herein, or such portion thereof, as the case may be, (b) replace the Qixit Software, Documentation, or portion thereof, as the case may be, with an equally suitable, functionally equivalent, compatible non-infringing equivalent, (c) modify the Qixit Software, Documentation, or portion thereof, as the case may be, to create an equally suitable, functionally equivalent, compatible non-infringing software program, (d) remove that portion of the Qixit Software or Documentation as may be subject to such infringement claim, or (e) terminate this License by giving notice thereof to you and without any liability to you.
10. General Provisions.
10.1 Entire License; Amendment. This License constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings regarding such subject matter, with the exception of any additional terms which you will accept if use the Qixit.com website or Qixit Service including the Beta User Non-Disclosure Agreement, Terms of Use, and Service Agreement posted at www.QIXIT.com. No amendment to or modification of this License will be binding unless in writing and signed by Qixit.
10.2 Governing Law/Jurisdiction. This License shall be deemed to be agreed to by you in St. Louis County, Missouri . This License, and all matters arising out of or relating to this License, shall be governed by the laws of the State of Missouri and the United States, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transaction Act shall not apply to this License. You consent to exclusive jurisdiction and venue in the federal courts sitting in St. Louis , Missouri , unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in the state courts sitting in St. Louis County, Missouri . You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. You agree that any cause of action that you may desire to bring arising out of or related to this License must commence within one (1) year after the cause of action arises; otherwise, such cause of action shall be permanently barred.
10.3 Assignment. Neither this License nor any of the rights, interests or obligations hereunder may be assigned or transferred by you (whether by operation of law or otherwise) without the prior written consent of Qixit. Qixit may assign this License, in whole of in part, without your consent. Subject to the foregoing, this License shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors, heirs and permitted assigns.
10.4 Construction. All captions contained in this License are for convenience only and shall not be deemed to be part of this License. Accordingly, they shall not constitute a part of this License when interpreting or enforcing this License. All defined terms used in this License shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require. Use of the terms “hereunder”, “herein”, “hereby”, and similar terms refer to this License.
10.5 Severability. If any provision of this License is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this License shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this License shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.
10.6 Cumulative Remedies. Except as expressly provided in this License, no right or remedy conferred by this License is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
10.7 Notices. Qixit may provide notice to you relating to this License by sending an e-mail to your last known e-mail address, and any such notice shall be deemed given and received on the day it is sent.
10.8 Government End Users. The Qixit Software and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202‑1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are hereby reserved under the copyright laws of the United States .
10.9 Export Control. You agree not to, directly or indirectly, export or re-export the Qixit Software without the appropriate United States or foreign government licenses. The Qixit Software is specifically subject to the U.S. export administration regulations and may be not be exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (b) to entities on the munitions’ control list, U.S. Treasury Department’s list of specially designated nationals, or the U.S. government’s table of denial orders. You represent and warrant that you are not in, under control of, or a national or resident of any such country or on any such list.