Limited Warranty

The 3X System’s authorized Distributor selling the 3X Systems product, if sale is not directly by 3X Systems warrants that commencing from the date of delivery to Customer (but in case of resale by a 3X Systems reseller, commencing not more than sixty (60) days after original shipment by 3X Systems), and continuing for a period of one (1) year: (a) its products (excluding any software) will be free from material defects in materials and workmanship under normal use; and (b) the software provided in connection with its products, including any software contained or embedded in such products will substantially conform to 3X Systems published specifications in effect as of the date of manufacture. Except for the foregoing, the software is provided as is. In no event does 3X Systems warrant that the software is error free or that Customer will be able to operate the software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, 3X Systems does not warrant that the software or any equipment, system or network on which the software is used will be free of vulnerability to intrusion or attack. The limited warranty extends only to you the original buyer of the 3X Systems product and is non-transferable.

Terms and Conditions

WHEREAS:

(A)              This Agreement is a license agreement and not an agreement for the sale of software or services.

(B)              This Agreement gives Licensee limited rights to use the Software, Hardware, and Related Materials described below and imposes upon Licensee certain obligations to protect the Software, Hardware, and Related Materials from unauthorized use, reproduction, distribution or publication.

NOW THEREFORE in consideration of the mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1.                  Definitions. In this Agreement the following words and phrases shall have the following respective meanings, unless the context otherwise requires:

(a)                “Activation” refers to process by which an Appliance, Service Provider, or End User communicates a License Key to a 3X Systems server, employee, contractor, or authorized party and this party transmits back to user a functioning Activation Key.

(b)               “Activation Date” is the date on which the Activation Key was first transmitted, within the context of an Activation.

(c)                “Appliance” refers to and is inclusive of certain proprietary Software that is installed on certain proprietary 3X Systems Hardware, including all web-interfaces, services, and code related to the Manager and any Third Party Applications, where applicability to Third Party Applications is limited only by their separate, applicable, and included Licensing Agreements.  Except where superseded by a separate Third Party Licensing Agreement, this term shall apply to any component or combination of components in whole or in part.

(d)               “Client Software” refers to certain proprietary Software that is required by an End User to obtain the benefits of the Solution.  Except where superseded by a separate Third Party Licensing Agreement, this term shall apply to any component or combination of components in whole or in part.

(e)                "Confidential Information" means proprietary material or information belonging to Licensor, or to any third party to which Licensor owes a duty to maintain confidentiality, directly or indirectly placed by Licensor, or by third parties to which Licensor is related, into the possession of Licensee which material or information is not generally available to or used by others (except other persons whom Licensor has granted licenses of the Software and Related Materials or part thereof) or the utility or value of which is not generally known or recognized as standard practice, whether or not the underlying details are in the public domain, and includes, without limitation, all business information, computer software and computer technology, whether patentable or not, which is acquired by or on behalf of Licensee from time to time and which, owing to the relationship between Licensor and Licensee, may become known to Licensee.

(f)                 "Copyrights" shall refer to those copyrights or copyright registrations for the Software or the Software and Related Materials and shall include future copyrights belonging to Licensor or any third party related to Licensor for improvements and modifications thereof and applications by Licensor for registration of copyrights for improvements and modifications thereof;

(g)                “End User” means the firm, corporation or other legal entity that will utilize the Solution, in whole or in part, to obtain beneficial services and may include within the definition (i) contractors, (ii) customers, (iii) employees and their families, or (iv) other related entities that are authorized to use the Client Software and other Software as described in this Agreement.

(h)                "Enhancements" means changes and/or improvements to the Software, whether arising out of the particular Software configuration for the specific use of Licensee or otherwise;

(i)                  "Errors" means, with regard to the Software, incorrect source code or object code or anything not in agreement with published Specifications or requested modifications;

(j)                 "Know‑How" includes all technology, source code, object code, local area network manager code, technical information, procedures, processes, trade secrets, methods, practices, techniques, information, logic/flow charts, sketches, drawings, Specifications, application and modification manuals and data relating to the design, manufacture, production, inspection, and testing of the Software, which are from time to time in Licensor's possession;

(k)               “Intellectual Property” includes all rights to intellectual property including but not limited to those granted by laws regarding Copyright, Patent, Trademark, Trade Name, Trade Secret, … and including but not limited to such content present in 3X Systems’s corporate entity, employees, Software, Know-How, and Related Materials.

(l)                  “License Key” means the alphanumeric code issued by Boxciom to Licensee which enables the Appliance to function properly at, or where appropriate augmented by, the specified capacity.

(m)              “Licensee” applies to the End User or Service Provider, as applicable;

(n)                “Locator Service” refers to the web service hosted on 3X Systems’s servers at <www.3X Systems.com/locator> and all interrelated services on the website.

(o)               "Manuals" means the programmer's manuals, the technical manuals and the user manuals and other similar documentation;

(p)               "Modifications" means Enhancements and/or correction of Errors, and Modifications shall be deemed to have been accepted by Licensee upon the lapse of sixty (60) days following successful installation of any Modifications unless Licensee notifies Licensor in writing prior to the lapse of such period that the Modifications in question do not conform to Specifications;

(q)               "Related Materials" means all of the printed materials, user documentation, training documentation and confidential activation code for the Software supplied by Licensor to Licensee, and includes the Manuals;

(r)                 “Service Provider” shall refer to a firm, corporation, or other legal entity which has completed and is still subject to a Reseller Agreement with 3X Systems where this agreement includes provisions for the supply or sale of the use of part or all of the beneficial services of a 3X Systems appliance to a third party entity that is not included in and subject to the definition of an End User.

(s)                “Solution” or “3X Systems Solution” refers to the Appliance, Client Software, Software, Intellectual Property, and other Materials whose benefits are designed to include, but not be limited to, the duplication of files or parts of files onto a separate storage medium for backup and recovery purposes.  Except where superseded by Third Party Licenses, the use of any component for any purpose will remain subject to and constrained by this Licensing agreement.

(t)                 "Software", which includes the Intellectual Property, Know-How and, unless otherwise hereinafter set out to the contrary, any Modifications, as described on Schedule "A" herein and includes all actual copies of all or any portion of the computer programs delivered by Licensor to Licensee, inclusive of  Client Software, backups, updates, merged copies, and any other proprietary software located on the Appliance either permitted by this Agreement or supplied subsequently by Licensor or any party related to Licensor; and

(u)                "Specifications" means the functional performance parameters of the Software.

(v)                “Third Party Software” means software owned by…

2.                  Grant of License and Reservation of Ownership. Licensor hereby grants to Licensee a personal, non-exclusive, non-transferable license to (a) use certain proprietary Software, that is installed on certain proprietary 3X Systems hardware (the Appliance), (b) use 3X Systems Intellectual Property as required to obtain the benefits of the Software and Appliance, (c) install and use the Client Software on hard drives, storage devices, and file servers as is necessary to obtain the benefits in (b), and (d) use Related Materials made available to customers for use with the covered products and services.  All components detailed or included as a part of a component detailed in Schedule A attached hereto and otherwise are pursuant to the terms of this Agreement. Licensor retains title and exclusive ownership of any and all copies of the Software and Related Materials licensed hereby. Licensee agrees to use its best efforts to protect the Software, Hardware, Intellectual Property, and Related Materials from unauthorized use, reproduction, distribution or publication.

3.                  License Fee. In consideration for the granting of the license of the Software, Hardware, Intellectual Property, and Related Materials to Licensee, Licensee owes to Licensor a license fee, as contracted, for the delivery of the Solution to Licensee. Licensee shall also pay to Licensor all sales, excise and other taxes thereon and upon any other amounts payable by Licensee to Licensor pursuant to this Agreement.

4.                  Copyrights.

(a)                The Software, Hardware, Intellectual Property, and Related Materials are owned by Licensor and are protected by U.S. copyright laws and applicable international treaties and/or conventions. Without limiting the prohibition on assignment contained elsewhere in this Agreement, Licensee acknowledges that its rights to use the Software, Hardware and Related Materials are personal to Licensee except where additional rights have been granted to a Service Provider through a separate Reseller Agreement. Licensee therefore covenants not to permit the use of the Software, Hardware, and Related Materials by unauthorized persons and to use its best efforts to prevent the exportation of the Software, Hardware, and Related Materials or any portion thereof into any country which does not have copyright laws that will protect Licensor's Copyrights.

(b)               Licensor, at its own expense, will defend and indemnify Licensee from all claims that the Software and Related Materials infringe a U.S. copyright, provided that Licensee gives Licensor prompt written notice of such claims and permit Licensor to defend or settle the claims and provides Licensor with all reasonable co-operation and further provided that Licensor shall not be required to defend and indemnify Licensee from infringement claims resulting from Modifications by Licensee.

(c)                As to any Software and Related Materials which are or in the opinion of Licensor may become subject to a claim of infringement, Licensor, at its option, will obtain the right for Licensee to continue using the Software and Related Materials or replace or modify the Software and Related Materials so as to make it non-infringing. If none of the aforementioned alternatives are available on commercially reasonable terms, then Licensee agrees to return the Software, Hardware, and Related Materials to Licensor upon Licensor's written request and Licensor shall, upon return, refund to Licensee all license fees paid by Licensee to Licensor, and Licensor shall have no other or further liability to Licensee. Licensee acknowledges that the remedies set out in paragraph 11 hereof constitute the sole and exclusive remedy of Licensee for copyright infringement.

(d)               3X Systems claims to have sufficient right to sublicense all Third Party Applications included in the product and grants Licensee a non-exclusive, non-transferable, limited sublicense to use the Third Party Software solely in conjunction with the Solution herein and such use shall be subject to the terms of this agreement. 

(i)                  If applicable or legally required, the related Licenses can be viewed through the Management interface or at the website <www.3X.com>. 

(ii)                In some cases, these Licenses will grant Service Provider or End User additional rights or place upon Licensee additional burdens beyond those stated herein. 

A.                 If an included component gives Licensee the right to provision corresponding source code for these components, 3X Systems hereby offers to provision this code consistent with such license. 

B.                 If any component further limits distribution, the component will instead be governed solely by the appropriate license  

5.                  Permitted Uses of the Software, Hardware, and Related Materials. As each configuration of central processing units and/or networked systems may be unique, Licensee agrees to conform Licensee's use of the Software and Hardware to the particular Software and Hardware configuration licensed by Licensor to Licensee. Said configuration is incorporated into this license agreement by reference, inclusive of Modifications created or approved by Licensor.

(a)                If Licensee is an End-User, then 3X Systems grants to Licensee and Licensee accepts a non-exclusive limited license to use the Appliance, configured to the capacity indicated by the applied license keys, in order to utilize the 3X Systems appliance in any way consistent with the receipt of the Solution’s benefits and to install and use the Client software on its hard disk, file servers, other storage device in all reasonable ways to permit its use by and deployment to authorized End Users, but not to expose 3X Systems’s Software, Know How, Intellectual Property, or other beneficial ownership to Uses Not Permitted.

(b)               If Licensee is a Service Provider who has purchased the Appliance in order to offer backup services built on the 3X Systems Solution, then 3X Systems grants to Licensee and Licensee accepts a non-exclusive limited license to use the Solution, configured to the capacity authorized by the applied License Keys, in order to offer backup services to End-Users as is detailed in the signed and active Reseller Agreement that must be and remain in place between 3X Systems and the Service Provider.

(c)                Recognizing that the right, title, and Intellectual Property Rights in and to the Solution shall remain in 3X Systems and/or its licensors, title to the Hardware shall pass to the Service Provider or, in cases where there is no entity acting as a Service Provider, to the End User, upon receipt of all Fees by 3X Systems.

6.                  Uses Not Permitted. Licensee covenants and agrees that it will not:

(a)                attempt to alter the physical storage capacity or authorized backup capacity of the appliance except where the Licensee has purchased an authorized License Key from 3X Systems or an authorized distributor and insofar as said License Key has not been applied to any other Appliance.

(b)               whether in whole or in part, sell, rent, lease, sublease, license, sublicense, lend, time-share, transfer, assign or provide the use of or access to the Software and Related Materials, or any portion thereof, to unlicensed persons except where this activity is pursuant to the lawful and contractual operation of a Service Provider under appropriate and active License of 3X Systems

(c)                assign, mortgage, charge or otherwise encumber either the Software and Related Materials or its rights under this Agreement.

(d)               reverse engineer, decompile or disassemble the Software, including the source code and any other underlying ideas or algorithms of the Software (except where applicable laws specifically prohibit such a restriction)

(e)                alter, modify or create any derivative works of the Software and Related Materials or any portion thereof.

(f)                 except as permitted elsewhere in this Agreement, make additional copies of the Software and Related Materials or any portion thereof.

(g)                create, attempt to create, or be complicit in any attempt to create License Keys that enable the Software

(h)                obscure or remove any copyright or trademark notices.

(i)                  ship, divert, transship, transfer, export, or re-export the Solution or any component in a way that is prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export Administration, U.S. Department of Treasury’s Office of Foreign Assets Control, or any other applicable government agency.

7.                  Assignment. Without limiting anything contained elsewhere in this Agreement, Licensee shall not assign this Agreement or any rights herein without the prior written consent of Licensor, which consent may be arbitrarily withheld. Any purported assignment without Licensor's consent shall be deemed to be null and void.

8.                  Term. The license granted by this Agreement is a perpetual license. Notwithstanding the foregoing, this Agreement will terminate automatically without notice if Licensee fails to comply with any provision of this Agreement. Upon termination of this Agreement, Licensee shall return the Software, Hardware, and Related Materials to Licensor together with any whole or partial copies, codes, Modifications and merged portions in any form. The parties agree that all provisions set out in this Agreement for the protection of Licensor and its Copyrights shall remain in force notwithstanding termination of this Agreement.

9.                  Updates. Provided that Licensee is in compliance with the terms and conditions of this Agreement, Licensor agrees to make available to Licensee all updates, improvements and enhancements for the Software for the duration of (12) months after Activation.  Any updates after this period are subject to the terms of the Licensee’s Maintenance Agreement.  Nothing herein shall be construed or interpreted as requiring Licensor to develop any such updates, improvements or enhancements.

10.              Limited Warranty.

(a)                Licensor warrants that the Software, without Modifications, will substantially conform to the Related Materials for a period of one (1) year from the date of receipt by Licensee. Licensor warrants that the media upon which the Software is provided and the Related Materials will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt by Licensee.

(b)               LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND RELATED MATERIALS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING EXCLUSIONS MAY NOT APPLY TO COMPANY. COMPANY MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

(c)                During the warranty period, Licensor's entire liability and Licensee's exclusive remedy shall, at Licensor's option, be one of the following:

(i)                  Licensor may attempt to correct or work around Errors;

(ii)                Licensor may replace the Software and Related Materials;

(iii)               Licensor may refund to Licensee the license fees paid to Licensor upon return of the Software and Related Materials to Licensor or its authorized distributor.

(d)               Licensor shall not be liable for damages, direct or indirect, special, incidental, consequential, punitive or exemplary, related to Licensee's use of the Software and Related Materials, even if Licensor is advised of the possibility of such damage.

11.              Limited Remedy.  Your exclusive remedy in the event of a breach of the foregoing limited warranty, TO THE EXCLUSION OF ALL OTHER REMEDIES, is set forth in this section.

(a)                In such event, you shall return the Solution to us and pay for shipping; you must include a dated proof of the date on which this copy of the Solution was delivered to you, such as a copy of your dated receipt or invoice for this copy. We will, at our option, either (i) ship you a replacement copy of the Solution at our expense or (ii) refund your license fee in full. To return the Solution, contact us at 3X Systems, 1275 Kinnear Road, Columbus, Ohio 43212 to obtain a return authorization code.

(b)               Without limiting the forgoing, the total aggregate liability of 3X Systems and its Service Providers arising from or related to this agreement shall not exceed the amount, if any, paid by you to 3X Systems for the Solution and all Maintenance and Extended Warrantees.  If the Solution and Services are provided without charge, then 3X Systems and its Service Providers shall have no liability to you whatsoever. 

(c)                The foregoing limitations of liability shall apply whether the damages arise from use or misuse of and reliance on the Solution or Services, from inability to use the Soluiton, Service, or Locator Service, or from the interruption, suspention, or termination of Service or Locator Service (including such damages incurred by third parties).  Such limitations shall apply notwithstanding a failure of

12.              Indemnity by 3X Systems.  … no obligation form modification, failure ot install upgrades, failure ot use latest version, combination with other items and hardware not provided

13.              Indemnity by Licensee.  Licensee agrees to provide for the defense of 3X Systems in any suit or action brought by third parties resulting from (a) a breach of Licensee’s warranties or (b) any claim that material developed by Service Provider or End User and used by Service Provider and End User infringes on any patent, trademark, industrial design, trade-secret or cypright; and will pay all direct damages, awards, and expenses that are finally awarded by a court or arbitral body to such third party (or any settlement amount agreed to by Service Provider and such third party), subject to limitations and disclosures set forth in this Section and provided that (a)3X Systems promptly notifies the Licensee of any action; (b)3X Systems gives Licensee sole control over the defense, settlement or compromise of any such action or suit; and (c) 3X Systems cooperates fully in Service Provider or End User’s defense or settlement of such claim.

14.              Confidentiality. All Confidential Information, including the Intellectual Property, shall be treated as confidential by Licensee and shall be used solely to enable Licensee to use the Software in accordance with this Agreement. Nothing contained herein shall prevent Licensee from making disclosure of any of the Confidential Information to any employee of Licensee for the sole purpose of utilizing the Software and Related Materials in accordance with this Agreement, provided that Licensee shall obtain from each employee to whom such disclosure is made a covenant of non-disclosure. 

15.              No Implied Waiver. No failure or delay by Licensor in enforcing any right or remedy in this Agreement shall be construed as a waiver of any future exercise of such right or remedy by Licensor.

16.              Conflict of Documents. Any conflict between the terms of this Agreement and any purchase order or other document in relation to the license granted hereby shall be resolved in favor of the terms of this Agreement.

17.              Equitable Relief. Licensee acknowledges that any breach by it of any of the terms of this Agreement is likely to result in irreparable harm or damage to Licensor and that, in the event of such breach, in addition to any and all remedies at law, Licensor shall have the right to obtain an injunction, specific performance or other equitable relief to prevent the continuous violation of the terms of this Agreement.

18.              Governing Law. This Agreement shall be construed in accordance with the laws of the State of  FORMTEXT Ohio.

19.              Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties, and supersedes any previous agreements, understandings and arrangements between the parties relating to the Software and Related Materials. Any amendments hereto are enforceable only if in writing and signed by each of the parties.

20.              Force Majeure.  Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, war, fire, natural disaster, accident, act of government, strikes, unavailability of material, Telco capacity or supplies, any failure of a third party provider to supply goods or services associated with or comprising an 3X SYSTEMS Product or Service, shortages of or failure to deliver hardware and/or software not attributable to an act or failure to act of the Party seeking the protection of the force majeure or any other cause beyond the reasonable control of such Party ("Force Majeure"), provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure.

21.              Termination.  This agreement will take effect on the Activation Date and will continue unless terminated as described below.

(a)                3X Systems may immediately terminate the Agreement in relation to any or all Products and Services provided by us to you if in each Party's sole discretion if it deems that the other Party is in breach of this Agreement and has not remedied such breach within thirty (30) days of being notified of such breach by the non-breaching Party; and immediately if a receiver, provisional liquidator, administrator or other like person is appointed over any of either Party's undertakings or assets or if either Party enters into arrangement with any of its creditors or any class of its creditors or either Party becomes insolvent or otherwise is unable to pay its debts when they fall due or if a proceeding by or against either Party under any law providing relief to the Party as debtor is commenced and is not dismissed within sixty (60) days of commencement.

(b)               3X Systems may terminate this agreement, effectively immediately upon written notice, if all or a substantial portion of the assets of Licensee are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy; a proceeding is commenced by or against Licensee for relief under bankruptcy, insolvency or similar laws and such proceeding is not dismissed within (60) sixty days; or Licensee is adjudged bankrupt or insolvent.

(c)                At our election after a 12 month period with 3 months warning

22.              Duties Upon Termination.  If this agreement terminates for any reason whatsoever, all of Licensee’s right hereunder will terminate immediately, except as otherwise provided herein.

(a)                Licensee will immediately cease: (i) use of the Solution, except solely as required by existing End-Users; (ii)selling or promoting the Solution to prospective End Users; and (iii) providing, except to existing End Users, backup services.

(b)               Licensee will, within thirty (30) days, destroy all promotional and advertising materials related to the Solution, regardless of the format or medium.

(c)                License agrees to remove all Confidential Information and Intellectual Property from its own computer system or storage medium in its control or possession, except as required to fulfill the surviving obligations of this agreement.

(d)               Notwithstanding any termination of this Agreement, the parties agree that the terms will continue to govern the conduct of Service Providers so long as they continue to provide services to End Customers pursuant to this Section. 

23.              Severability.  If any portion of this Agreement is deemed by any court of competent jurisdiction to be illegal or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect notwithstanding.

(a)                If any term of this agreement will be held by any court of competent jurisdiction to be invalid, illegal, or unenforceable due to a conflict between this Licensing Agreement and a Third Party Licensing Agreement, the term will be interpreted to include all remaining rights or restrictions that are not apart to this conflict.

Notices.  All written communication and notices with respect to this agreement will be sent via facsimile or first class mail, return receipt requested, to 3X Systems at the following address: 1275 Kinnear Rd, Columbus, OH 43212, or such other address as such 3X Systems may from time to time notify in writing.  If mailed, notices will be deemed effective three (3) businesss days after mailing.