This is a legal agreement (“Agreement”) between you, or the company you represent, and XMPro, Inc. www.xmpro.com (“XMPro”). This agreement sets forth the terms under which XMPro agrees to license to you the XMPro Applications (as defined below). By checking the box or accessing or using this software, you acknowledge that you have read this Agreement, you understand it and you agree to be bound by and are a party to this agreement.
1. GRANT OF LICENSE
XMPro hereby grants you a non-transferable, non-exclusive, limited right to use the XMPro Applications solely for trial purposes during the 120 days (Term). You may use the XMPro Applications only on any computer owned, leased, or otherwise controlled solely by you.
XMPro offers eligible customers up to 120 days of free Data Stream Designer and App Designer usage along with a Basic Azure SQL database (services subject to change). This offer is limited to one XMPro Free Account per eligible customer and cannot be combined with any other offer unless otherwise permitted by XMPro.
As used herein, the “XMPro Applications” means the web-based application that are made available to you by XMPro under this Agreement. XMPro will host and operate the web-based application on computer servers accessible by you through the internet.
2. USE RIGHTS
The XMPro Applications are provided to you for use only as expressly set forth in this Agreement, and you will not use the XMPro Applications in whole or in part for any other use or purpose. In particular, and without limitation, you will not, and will not allow any third party to:
- decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the XMPro Applications by any means, or disclose any of the foregoing;
- provide, rent, lease, lend, or use the XMPro Applications on behalf of any third party including for timesharing, subscription, or service bureau purposes;
- sublicense, transfer or assign the XMPro Applications or any of the rights or licenses granted under this Agreement; or
- remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the XMPro Applications or related documentation.
Additionally, you agree to not:
- use or permit the use of the XMPro Applications for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law;
- transmit any data using the XMPro Applications that infringes upon or misappropriates the intellectual property or privacy rights of any third party;
- perform any load testing of the XMPro Applications or attempt to probe, scan or test the vulnerability of the XMPro Applications without proper authorization; or
- log into a server or account that you are not authorized to access.
You are responsible for all activity occurring under your account. You have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all data you provide, generate, upload and transmit. You shall prevent unauthorized access to, or use of, the XMPro Applications and notify XMPro immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
3. PROPRIETARY RIGHTS
This is a subscription license for use of the XMPro Applications. This Agreement is not a sale, or assignment and transfer, of any software. You agree that XMPro, its licensors or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights in and to the XMPro Applications, all services provided by XMPro, deliverables and any and all related and underlying software (including interfaces created by XMPro), databases, technology, reports and documentation, and any adaptation, modification, derivation, addition or extension to the XMPro Applications and any services. Nothing in this Agreement gives you any right, title or interest in or to the XMPro Applications, any services that may be provided or any related documentation.
4. LIMITS, QUOTAS, AND CONSTRAINTS
The Free Account includes the use of an unlimited number of Data Streams and Applications during your 120-day free trial period. It does not include access to the full library of XMPro Connectors (subject to change). If you require additional connectors that are not available in your trial account, please contact support.
You must upgrade your XMPro Free Account to a paid subscription to continue using the services after your trial period expires.
Please refer to the Microsoft Azure Single database DTU and storage limits for the Basic Azure SQL Database limits, quotas, and constraints. If you need to exceed these limits, please contact support.
5. EXCLUSIONS
You will not facilitate, engage in, or participate in any use of XMPro services, for crypto currency mining, denial of service attacks, spamming, or illegal activity, and/or any use that could cause harm to XMPro or others. XMPro will enforce strong internal controls to prevent the same. XMPro may from time to time contact you regarding your use of the company’s services and you will upon such request provide reasonable documentation regarding your use. If XMPro believes for any reason that such services are being used for any prohibited purpose, XMPro may, in its sole discretion, suspend or terminate your access to these services.
6. RESOURCE COMMITMENT
All increases in service usage are subject to the availability of these service resources. Any quota described in the limits, quotas, and constraints section is not a commitment that there will be sufficient resources available for you to reach the quota.
We reserve the right to remove any Free Account and its associated resources including Data Streams, Applications and Connectors, if inactive for more than 30 days or if the account does not get upgraded to a paid subscription by the end of the trial period.
XMPro reserves the right to modify or discontinue any Free Account at any time with or without notice.
7. SERVICE LEVEL AGREEMENTS
SLAs are not provided for services during preview or for services that are offered free of charge.
8. TERM
This Agreement shall become effective as of the date on which you first receive access to the XMPro Applications (the “Effective Date”) and shall continue until terminated by either party or the end of the Trial Period. The “Trial Period” runs for 120 days from the Effective Date. Either party may terminate this Agreement at any time by notifying the other party.
Upon termination for any reason:
- your account will be disabled and you will no longer have access to the XMPro Applications; and
- XMPro will delete all data collected from your use of the XMPro Applications.
9. WARRANTY
XMPro will use generally accepted industry standard security measures to protect your data while you use the XMPro Applications. EXCEPT FOR THE WARRANTIES CONTAINED IN THIS SECTION, XMPRO MAKES NO WARRANTIES REGARDING THE XMPRO APPLICATIONS AND SERVICES. XMPRO SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. XMPRO DOES NOT WARRANT THAT ACCESS TO THE XMPRO APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE XMPRO APPLICATIONS WILL BE CORRECTED, OR THAT THE XMPRO APPLICATIONS AND SERVICES WILL MEET YOUR PARTICULAR REQUIREMENTS OR EXPECTATIONS. XMPRO DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. XMPRO SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND ANY OTHER PROBLEMS ARISING FROM SUBSCRIBER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN XMPRO AND YOU.
10. LIABILITY FOR DAMAGES
IN NO EVENT SHALL XMPRO BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, DIRECT, INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING FAULT, NEGLIGENCE AND THE FAILURE OF THE ESSENTIAL PURPOSE. BECAUSE SOME
STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO THE YOU AND XMPROS DAMAGES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW IN SUCH JURISDICTIONS.
11. INDEMNIFICATION
You shall defend, indemnify and hold harmless XMPro, and their licensors, officers, directors, agents and employees from any liability, loss, damage, cost or expense (including reasonable attorney’s fees) arising out of any gross negligence, intentional act or omission by you in connection with the XMPro Applications.
12. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the choice of law or conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Any dispute, controversy, cause of action, or claim, of any kind or nature whatsoever, whether legal or equitable, including, but not limited to, claims sounding in contract, torts or products liability and claims based upon alleged violations of consumer protection laws, which arise out of or relate to (1) this Agreement, or the breach, termination or invalidity of this Agreement, (2) the sale, installation, modification or use of the Software sold, or (3) any services rendered in connection with the sale, installation, modification or use of the Software shall be finally and exclusively settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement by one (1) arbitrator appointed in accordance with such Rules. The place of arbitration shall be Wilmington, Delaware. Judgment upon the award of the arbitrators may be entered in any court having jurisdiction thereof.
13. COMMUNICATIONS POLICY
Throughout the duration of your use of the free services, you may receive periodic email communications with best practices, training, tips and tricks, and valuable offers related to XMPro. You can stop receiving communications by opting out via the unsubscribe link in the emails. Read the privacy statement.
14. ASSIGNMENT AND SEVERABILITY
You may assign this Agreement or any obligations hereunder without the prior written consent of XMPro.
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
15. ENTIRE AGREEMENT AND NO WAIVER
This Agreement represents the entire agreement concerning the XMPro Applications between you and XMPro and it supersedes any prior proposal, representation, or understanding between the parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
