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The xTuple End-User License Agreement
The full text of the xTuple License is found below. Please note that this is the license which governs the use of the commercial xTuple software by an end-user (typically a manufacturing or distribution company). xTuple's partner programs offer generous incentives for VARs, consultants, systems integrators, and other technology solution providers to resell and modify xTuple products. Those programs are covered under a separate agreement.
This license is between you and xTuple and applies to the Software (as defined below). This license explains your rights to use and modify the Software. By signing - either electronically or manually - you accept this license and agree to comply with its terms and conditions.
1. Definitions. The following definitions apply to this license:
1.1. "Contribution" means any work derived from the Software by a Contributor, including, without limitation, any modification, addition, or deletion made to the Software by xTuple, another Contributor, or you.
1.2. "Contributor" means any party that develops a Contribution to the Software and includes, but is not limited to, xTuple and you.
1.3. "xTuple" means OpenMFG, LLC, d/b/a "xTuple," a Virginia limited liability company and owner of the Software.
1.4. "Software" means the xTuple ERP Suite, _________________ Edition, and/or xTuple Packages (specify: ______________) which are loaded into the xTuple ERP Suite, including all accompanying tools and documentation, and any Contributions added to the xTuple Software, tools, or documentation.
2. Rights Granted. xTuple licenses you to do the following with the Software:
2.1. Copy, install, and modify the source code version of the Software;
2.2. Use the Software for your own internal business purposes as an end-user of the Software.
This license is world-wide, non-exclusive, perpetual or annual, depending on the license fee paid, (unless terminated for breach), and non-transferable.
3. License and Maintenance Fees.
3.1. Number of Users. This license is for ______ concurrent users of the Software, and is licensed under either an Annual License or a Perpetual License (as defined below). xTuple reserves the right to audit your usage of the Software, and if you exceed this specified number of concurrent users on more than three occasions, you agree that this license will be amended to add such additional users as xTuple deems required by the audit. Such additional users will be added via Attachment A to this license, and will be billed to you at xTuple's then-current published rates. If you determine independent of any xTuple audit that you require additional user licenses, you may notify xTuple via electronic mail, and such additional users will be billed to you at xTuple's then-current published rates, less a courtesy discount of 10%.
3.2 Annual License. In exchange for the license granted in Section 2, you agree to pay to xTuple an initial annual license fee in the amount specified in your xTuple invoice. You must pay the annual license fee upon execution of this license and each subsequent anniversary thereof (provided that you are not in breach). Software Maintenance (as defined in section 3.4 below) is included in the Annual License. Renewal pricing of the Annual License shall be at xTuple’s then-current published rates; xTuple will invoice you for the amount due. If you do not wish to renew your Annual License, you must notify xTuple in writing at least thirty days prior to the anniversary date of this Agreement.
3.2.1. Monthly Billing Option (US Customers only). If you elect the Annual License, you may optionally choose to pay to xTuple a monthly Fee in the amount specified in your xTuple invoice. Payment for monthly billing is only by pre-authorized ACH bank account draft; you hereby authorize xTuple to debit your account the monthly Fee, with the first three months' payment due on the Effective Date, and monthly payments on the same day of the month as the Effective Date, starting three months following the Effective Date. You acknowledge that this does not constitute a month-to-month contract, and represents a commitment for a full Annual License for the twelve months following the Effective Date, subject to all the other terms contained in this license. In the event that your account debit is declined, a $50 fee will be assessed, and you must provide alternate billing information within 72 hours of being notified by xTuple, or be subject to the Termination clause in section 11 below.
3.3. Perpetual License. In exchange for the license granted in Section 2, you agree to pay to xTuple a Perpetual License Fee, plus the first year’s Software Maintenance Fee, in the amount specified in your xTuple invoice. You must pay both fees upon execution of this license.
3.4. Software Maintenance. Customers who are current on their Annual License payments or current in the first year of their Perpetual License payment as defined above shall be entitled to receive all updates and enhancements to the Software released by xTuple. Updates and enhancements will be provided electronically. Software Maintenance payments are due and payable each year on the anniversary date of the Perpetual License Fee, at xTuple’s then-current published rates. If you do not wish to renew your Software Maintenance, you must notify xTuple in writing at least thirty days prior to the anniversary date of this Agreement. If more than twelve months have passed since a customer’s most recent Software Maintenance Fee payment, the customer will be deemed to be “Out of Maintenance,” and xTuple reserves the right to treat any further updates to the Software as entirely new license sales. Installation of updates and enhancements is not covered under this License Agreement (see section 6, below).
4. Licensee Obligations. You are required to do the following when using or modifying the Software:
4.1. Include all original copyright and trademark notices and disclaimers;
4.2. Include the text of this license; and
4.3. Deliver to xTuple or its authorized reseller in digital or electronic format all Contributions that you make to the Software.
5. Prohibitions. You are not permitted to do any of the following with the Software:
5.1. Distribute a source code version of the Software containing your Contributions;
5.2. Distribute your Contributions to any party other than xTuple or its authorized reseller;
5.3. Distribute or redistribute a compiled binary version of the Software in its original or modified form;
5.4. Process or permit to be processed any other partyís data for a fee or other consideration;
5.5. Use the Software in the operation of a service bureau;
5.6. Provide consulting services related to developing, installing, implementing, or training for the use, modification, or distribution of the Software to any party outside of your business for a fee;
5.7. Develop or contribute to the development of a software application that competes with the Software.
Parties interested in reselling the Software, or providing services related to the Software, are encouraged to contact xTuple about a reseller or consultant arrangement, which would include a separate agreement and license.
6. No Additional Services. Under the terms of this license, xTuple is not responsible for installing, supporting, maintaining, or updating the Software, for training you to install, use, support, maintain, update, or modify the Software, or for converting, entering, or verifying any data. xTuple and its authorized resellers provide maintenance, support, training, and consulting services for a fee under separate written agreements.
7. Ownership. xTuple owns all right, title, interest, copyright, and patent rights in and to the original and all modified versions of the Software, including, without limitation, all Contributions made by you or any other party. To the extent that xTuple does not own your Contributions, you hereby transfer to xTuple all right, title, interest, copyright, and patent rights in and to your Contributions. xTuple reserves the right to sell or license for a fee the Software and any Contributions in connection with a license to use the Software and the Contributions in connection with support, maintenance, or consulting services.
8. Limitations on Liability. In no event will xTuple or any other Contributor be liable for any damages whatsoever, including, but not limited to, lost revenue or profits or other direct, indirect, special, incidental, or consequential damages, even if they have been advised of the possibility of such damages, except to the extent any applicable law prohibits this disclaimer.
9. NO WARRANTIES. The Software and this license document are provided AS IS with NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING THE WARRANTY OF DESIGN, TITLE, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
10. Choice of Law. This license is governed by the laws of Virginia, including the Virginia Uniform Computer Information Transactions Act. Disputes must be settled in the state or federal courts located in Norfolk, Virginia.
11. Termination. If you breach any term or condition of this license or fail to perform any of your obligations under this license, then this license will automatically terminate, unless you have cured your breach or failure to xTuple's satisfaction within 30 days after xTuple or its authorized reseller has notified you of it. Upon termination, you must immediately stop using, modifying, and distributing the Software, deliver to xTuple or its authorized reseller all of your Contributions (whether or not completed), and delete all versions of the Software and Contributions from your systems. xTuple may seek injunctive relief and money damages against you if you breach this license or fail to perform your obligations.
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