END USER LICENSE AGREEMENT
XM Developments International Limited (XM Developments) licenses you to access and use its XM Oxygen software (the Software) on the following Terms. You must read these Terms carefully before indicating acceptance at the end by clicking on the "I Accept" button. If you do not agree to any of these Terms, click on the "I Do Not Accept" button at the end of these Terms, in which case you will not be permitted to access or use the software.
1. Interpretation
1.1 In this Agreement:
  Connector means the object code version of the XM SSL software that is installed on the Licensee’s local server, which allows the Licensee to synchronise data between the Licensee’s local Sage ERP Accpac database and XM Oxygen;
  Intellectual Property means any patent, trade mark, service mark, trade name, invention, trade secret, copyright, moral right, right in a design, look and feel, know-how, confidential information and any other intellectual property right whether or not registered;
  Licensee Data means the data inputted by the Licensee, or XM Developments on the Licensee's behalf, for the purpose of using the Software or facilitating the Licensee’s use of the Software.
  Set-up Fee means the amount payable by the Licensee for the initial set-up of the Software as specified in Item 2 of the Schedule;
  Software means: (a) the Connector; (b) XM Oxygen; and, (c) any Upgrades;
  Special Conditions means the special conditions (if any) set out in Item 4 of the Schedule;
  Subscription Fee means the monthly fee for access and use of the Software, as specified in Item 3 of the Schedule;
  Upgrade means any modification or enhancement to the Connector or XM Oxygen;
  Username and password means a unique code and login password that allows the Licensee to access XM Oxygen; and
  XM Oxygen means the on-line ordering, inventory management and fulfilment software system that integrates with Sage ERP Accpac.
1.2 In this Agreement:
(a) clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
(b) person includes a corporation; and
(c) words importing the singular include the plural and vice versa.
2. Software Access
2.1 Subject to payment of the Set-up Fee and Subscription Fee, XM Developments grants to the Licensee a non-exclusive, non-transferable license to access and use the Software for the Licensee's own internal business purposes and in accordance with the Special Conditions and the terms and conditions of this Agreement.
2.2 XM Developments will invoice:
(a) the Set-up Fee on or about the date of this Agreement; and
(b) the Subscription Fee monthly in advance,
  and the Licensee will pay each invoice within [7] days of the date of the invoice.
2.3 Once XM Developments has received the Set-up Fee XM Developments will issue a Username and password to the Licensee. XM will permit the Licensee to install one copy of the Connector on the Licensee’s server on which the Sage ERP Accpac database is located.
2.4 If required by XM Developments in order for the Licensee to use the Software, the Licensee must register with XM Developments either directly or indirectly or through the XM Developments’ website and supply an email address.
2.5 All Upgrades will form part of the Software and must only be used in on the terms and conditions of this Agreement.
2.6 Non-payment of the Set-up Fee or Subscription Fee may result in restricted access or disabling access to the Software at XM’s discretion.
2.7 The Licensee acknowledges that XM Oxygen is a hosted cloud based solution and any Service Level Agreement specifics (such as uptime, speed or maintenance) entered into between XM Developments and the Licensee will not exceed the corresponding service levels provided by collocation partners.
3. Licensee Data
3.1 The Licensee will own all rights, title and interest in and to all of the Licensee Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data.
3.2 XM Developments will not be responsible for any loss, destruction, alteration or disclosure of Licensee Data.
4. Hardware requirements and performance
4.1 The Licensee acknowledges that:
(a) XM Developments will not provide any interfaces, software or customisations for the Licensee to access the Software, except the Connector and otherwise as expressly set out in Item 5 of the Schedule;
(b) the Licensee is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, and communication services (including suitably fast internet access) that allow its users to access and use the Software;
(c) the operation and availability of the systems used by the Licensee for accessing and using the Software, including public communications services, computer networks and the internet (together referred to as Networks), can be unpredictable and may from time to time interfere with or prevent access to the Software. XM Developments will not be liable to the Licensee for any failure of the Licensee to access or use the Software where such failure is caused by inoperable or unavailable Networks.
(d) the Licensee is required to ensure their Servers with which are integrated with have at least an additional 20% system resources and/or 2GB's reserve RAM for use of the Software. Failure to do so may incur additional charges and/or performance issues.
(e) the Licensee will whenever possible inform XM Developments no less than 36 hours before moving the physical location and/or IP Address registered for the installation of the Software. Failure to do so will incur additional charges of $1000 USD.
4.2 XM Developments is not in any way liable for any interference with or prevention of the Licensee’s access and/or use of the Software.
5. Protection of Intellectual Property
5.1 The Licensee acknowledges that the Intellectual Property in the Software belongs to XM Developments and the Licensee will not dispute such ownership.
5.2 All information contained in or relating to the Software will be treated by the Licensee as confidential unless it is published by XM Developments or is contained in a published patent specification or is in the public domain or generally known in the industry otherwise than by a breach of this Agreement.
5.3 The Licensee undertakes to maintain the confidentiality of the Licensee’s Username and password and not to allow any unauthorised person to use the Username and password.
5.4 The Licensee may not copy the Software or any related documentation in whole or in part in any visual or machine-readable form, except to the extent that such copying is necessary for the Licensee's own back-up purposes.
5.5 The Licensee undertakes that it will:
(a) not reproduce, translate, reverse-engineer, adapt, vary or modify the Software nor communicate the same to any person except as expressly permitted by this Agreement;
(b) take all reasonable steps to ensure the non-disclosure and confidentiality of the Software and all matters relating to the Software at all times;
(c) not export or make available (whether by download, email exchange or otherwise) the Software to or from any country to or from which it is prohibited by law to export or make available the Software;
(d) use its best endeavours to bind its employees and agents not to disclose, communicate or copy for any purpose whatsoever the Software or any part thereof except as permitted by clause 5;
(e) not transfer, assign or otherwise deal in or grant a security interest in the Software or the Licensee's rights under this Agreement;
(f) maintain all copyright notices on the Software and manuals relating to the Software and not remove the same; and
(g) notify XM Developments in writing immediately it has knowledge of the existence of any circumstances which may suggest that any person may have unauthorised knowledge, possession or use of, or access to, the Software.
5.6 The Licensee's obligations under this clause 5 will survive termination of this Agreement.
6. Warranty
6.1 XM Developments warrants that it has full power and authority to license the Software to the Licensee.
6.2 XM Developments warrants that to the best of its knowledge and belief the Software does not infringe any New Zealand patent, copyright, trade secret or other proprietary right of any third party.
6.3 The Licensee acknowledges that the Software is of a complicated and technical nature and may have minor or inherent defects. Provided that the Licensee is not in default in payment of the Set-up Fee and Subscription Fee, XM Developments will repair or replace the Software, where appropriate and at its sole option, to correct documented code errors in the Software.
7. Limitation of liability
7.1 Except as expressly provided in this Agreement, all representations or warranties (statutory, express or implied), except any which may not lawfully be excluded, are expressly excluded, including without prejudice to the generality of the foregoing, the implied warranties of merchantability and fitness for a particular purpose.
7.2 The Licensee acknowledges that the Software is not fault-tolerant and is not designed, manufactured or intended for the use or resale in environments requiring fail-safe performance, in which the failure of the Software could lead directly to death, personal injury or physical or environmental damage (High Risk Activities) (such as the operation of aircraft navigation or communication systems, life support machines, or weapons systems). Accordingly, XM Developments, disclaims any warranty (whether implied or otherwise) for High Risk Activities.
7.3 Notwithstanding anything in this Agreement to the contrary, XM Developments will not be liable under the law of tort, contract or otherwise for any loss of profits or any indirect or consequential loss or damage, however caused, arising out of or in connection with the use of the Software.
7.4 XM Developments' liability to the Licensee arising out of all claims for damages under this Agreement will not exceed in aggregate the total amount of the Set-up Fee actually paid by the Licensee.
8. Default and termination
8.1 XM Developments may terminate this Agreement immediately by notice in writing to the Licensee if the Licensee:
(a) fails to pay the Set-up Fee or Subscription Fee on the due date; or
(b) breaches any of its other obligations under this Agreement and fails to remedy the breach within 14 days after notice from XM Developments requiring the breach to be remedied; or
(c) becomes bankrupt, goes or is put into liquidation, has a receiver or statutory manager appointed of any of its assets, becomes insolvent, ceases to carry on its business or makes any composition or arrangement with its creditors.
9. General
9.1 Any notice to be given in terms of this Agreement must be made in writing, by email or by fax sent to the registered office or principal place of business of the other party or to such other address as may be notified by either party to the other from time to time. Any communication by email or fax will be deemed to be received when transmitted to the correct email or fax address of the recipient. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third day following the date of posting.
9.2 No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of any party to enforce any provision of this Agreement will not be interpreted as a waiver of the provision.
9.3 This Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings, provided that, where a confidentiality agreement has previously been signed by the parties, that confidentiality agreement will continue in full force and effect, except to the extent of any inconsistency with this Agreement.
9.4 No alteration of this Agreement will be binding unless it is in writing and executed by both parties.
9.5 The Licensee may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of XM Developments which will not be unreasonably withheld. A change of 50% or more in the ownership of the Licensee is deemed to be an assignment or transfer of the Agreement.
9.6 If any provision of this Agreement is invalid or unenforceable, the remaining provisions of this Agreement will not be affected and will continue in full force.
9.7 This Agreement may be executed by the parties in counterparts, each of which will be deemed to be an original and all of which will constitute one and the same agreement.
9.8 This Agreement is subject to the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts. In addition to any other rights and remedies available to XM Developments for breach of this Agreement, XM Developments will be entitled to enforcement by court injunction or restraining order.