Revised: March 2015

IMPORTANT, READ CAREFULLY. THIS XARROW END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS A BINDING CONTRACT BETWEEN YOU, THE END-USER (THE “LICENSEE”) AND XI’AN RUI JIAN SOFTWARE LTD. (“XARROW” OR THE “LICENSOR”). EXCEPT TO THE EXTENT YOU ARE BOUND BY A WRITTEN AGREEMENT SIGNED BY BOTH YOU AND XARROW REGARDING THE USE AND LICENSE OF THIS SOFTWARE PRODUCT, BY INSTALLING OR USING THIS SOFTWARE PRODUCT, YOU, THE LICENSEE, ARE AGREEING TO BE BOUND BY THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, WHICH INCLUDES, BUT IS NOT LIMITED TO, THE SOFTWARE USAGE LICENSE, THE DISCLAIMER OF WARRANTY AND LIMITED WARRANTY, AND LIMITATION OF XARROW’S LIABILITY.
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, TERMINATE THE INSTALLATION OF THIS SOFTWARE BY SELECTING "I DO NOT ACCEPT THE LICENSE AGREEMENT" IN THIS WINDOW OR BY CLICKING ON THE "CANCEL" BUTTON. YOU MAY THEN PROMPTLY DELETE THE SOFTWARE FROM YOUR COMPUTER AND RETURN THE ENTIRE DISK PACKAGE, AND ALL OTHER ITEMS (INCLUDING DOCUMENTATION AND PACKAGING) WITHIN 3O DAYS OF PURCHASE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A FULL REFUND.

1.0 Definitions.

1.1 Designated Device. Designated Device means the single Device owned, leased or otherwise controlled by Licensee on which the Software is to be installed or run.

1.2 Device. Device means any computer, or other digital workstation, electronic, cellular, or computing instrument that runs, accesses, or utilizes the services of the Software.

1.3 Documentation. Documentation means the user guides and manuals for the installation and use of the Software, whether provided in CD-ROM, hard copy, or other form.

1.4 License Fee. License Fee means the fee paid to XARROW for each specific license to use the Software granted hereunder as may be identified in an Order Form received and accepted by XARROW.

1.5 Order Form. Order Form means (i) the document in hard or electronic copy by which particular Software or Technical Support Services is ordered by or for Licensee and (ii) any order confirmation that may be issued by XARROW acknowledging receipt of, or accepting, an order by Licensee for particular Software or Technical Support Services.

1.6 Software. Software means the computer software programs for which Licensee is granted a license hereunder, the Documentation therefore and, to the extent Licensee either purchases an Update or is entitled to receive Updates in connection with certain Technical Support Services purchased pursuant to Section 3.2, Updates thereto. All computer programs are licensed hereunder in object code (machine-readable) form only except that certain “Develop Kit” software programs may include limited portions in source code (human-readable) form for which modifications are not supported by XARROW.

1.7 Technical Support Services. Technical Support Services means: (i) services provided to Licensee pursuant to the xArrow’s Technical Support Services Policies in effect on the date the Software is delivered to Licensee, and (ii) Training Services provided pursuant to the xArrow’s Training policies in effect on the date such services are ordered by or for Licensee.

1.8 Develop Kit Software. Develop Kit Software means Software designated by XARROW on the Order Form as a “Develop Kit” software product and which may include compiled computer code and portions of source code which may be used by the Licensee to extend the functionality of the Software.

1.9 Update. Update means: (a) supplemental programs, if and when developed and distributed by XARROW, that may contain bug fixes or improved program functions for the Software; and (b) a subsequent release of the Software, if and when developed by XARROW, which XARROW generally makes available for licensees that is entitled under the Technical Support Services Policy by virtue of having purchased such services pursuant to Section 3.2. An Update does not include any release, new version, option, or future product, which XARROW licenses separately.

2.0 Software License.

2.1 Grant of License and Limitations. In consideration of the License Fee and subject to the terms, conditions and limitations set forth in this Agreement and the limitations set forth in the Order Form, XARROW grants to Licensee a nonexclusive license to use a single instance of the components of the Software specified in the Order Form for which the License Fee has been paid solely for Licensee’s business operations on a single Designated Device at the location specified in the Order Form. The Software is licensed to Licensee, not sold.

  2.1.1 Installation Limitations. The media upon which the Software resides may contain multiple copies of some of the components of the Software, each of which is compatible with different microprocessor architectures or different underlying operating systems. Licensee may install the Software for use only with one architecture and one operating system at any given time, consistent with the restrictions in the Order Form.

  2.1.2 Develop Kit Restrictions and Rights. If the licensed Software includes Develop Kit Software (“xArrowDevelopKit”) then Licensee may use the licensed Develop Kit to prepare one or more communication protocol drivers, extended widgets and extended script commands. Licensee may then use these communication protocol drivers, extended widgets and extended script commands in connection with Licensee’s other applications of software.

2.2 Ownership. Licensee owns the magnetic or other physical media upon which the Software is originally or subsequently recorded or fixed, but XARROW or XARROW’s Licensors retains all title, copyright and other proprietary rights in, and ownership of, the Software regardless of the media upon which the original or any copy may be recorded or fixed. Licensee does not acquire any rights, express or implied, other than those expressly granted in this Agreement.

2.3 Copy Restrictions. Copyright laws and international treaties protect the Software, including the Documentation. Unauthorized copying of the Software, the Documentation or any part thereof, is expressly prohibited. Subject to these restrictions, Licensee may make one (1) copy of the Software solely for backup or archival purposes, and may make a limited number of copies of the Documentation for use by Licensee in connection with its authorized use of the Software. Licensee will number and account for all such copies. All titles, trademarks, and copyright and restricted rights notices will be reproduced in such copies.

2.4 Use Restrictions. Licensee may transfer the Software from one Designated Device to another for application development or for operation of the Software provided that: (i) the Software (including the License Files) is completely removed from the initial Designated Device prior to installing the Software on the second computer, and (ii) the end-user identification information (including the identification of the Designated Computer) contained within the License File remains accurate. The Software may only be used on one Device at a time. The Software is licensed as a single product. Its component parts may not be separated for use on more than one Device. Licensee will not, nor will Licensee suffer or permit others to, modify, adapt, translate, reverse engineer, decompile or disassemble the Software or any component thereof (including the Documentation), or create derivative works based on the Software (including the Documentation), except to the extent such foregoing restriction is agreed to in writing by XARROW or prohibited by applicable law.

2.5 Transfer and Assignment Restrictions. Licensee may not transfer, sublicense, rent, lease, sell, loan or assign the Software or any part thereof, or any of its rights or duties under this Agreement, to any other person or entity without the prior written consent of XARROW.

2.6 Verification. At XARROW’s written request, not more frequently than annually, Licensee will furnish XARROW with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement. XARROW may audit Licensee’s use of the Software. Any such audit will be conducted during regular business hours at Licensee’s facilities and will not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee is using Software contrary to the terms and limitations of this License Agreement then Licensee will be invoiced for additional license fees consistent with Licensee’s actual use of the Software in accordance with XARROW’s then current price list for the Software, which amount will be immediately due and payable. This assessment of additional fees will be without prejudice to any other remedies XARROW may have for breach of this Agreement, including without limitation termination under Section 4.3.

2.7 Version Limitations. The Software, and various components thereof, contain certain version numbers (such as version "5.5"). This Agreement permits Licensee to install one copy of the Software with the same (or a lower) version number as the Software version number listed on the Order Form (or in an Update that is part of the Software hereunder licensed) on the number of computers authorized hereunder (for example, if the version number listed for a particular component of the Software is "5.5", then Licensee may install a copy of that component of the Software having a "5.5" or "5.0" version number, but not a "5.6" version number).


3.0 Technical Support Services.

3.1 Support Services. If Licensee purchases Support Services then such services will be provided to Licensee subject to the provisions and limitations in this Agreement and the Technical Support Services Policy in effect on the date the Software is delivered to Licensee. The price of such services will be based on XARROW’s (or its authorized distributor’s, as the case may be) price list in effect on the date such Technical Support Services are ordered by or for Licensee.

3.2 Training Services. Training Services will be provided to Licensee subject to the provisions and limitations in this Agreement and XARROW’s Training policies in effect on the date such Training Services are ordered by or for Licensee. The price of such services will be based on XARROW’s price list in effect on the date such Training Services are ordered by Licensee.

3.3 Sole Source Support. XARROW and its authorized distributors and resellers (including systems integrators) are the sole support contacts for the Software.

4.0 Term and Termination.

4.1 Term. The license granted hereunder will continue perpetually unless terminated by Licensee or XARROW under this Article 4.0.

4.2 Termination by Licensee. Licensee may terminate the license granted hereunder at any time upon delivery of written notice to XARROW. Termination will not relieve Licensee of its obligations specified in Section 4.4 below.

4.3 Termination by XARROW. This Agreement and the license granted hereunder automatically terminates if Licensee breaches any provision of this Agreement including but not limited to the failure to pay in full the License Fee when due.

4.4 Effect of Termination. Immediately upon termination of this Agreement or the license granted hereunder, Licensee will cease using the Software, will delete the Software, including the License File(s), from its computer and will either return to XARROW or destroy the Software, including the License File(s), Documentation, packaging and all copies thereof. If Licensee elects to destroy the Software then Licensee will certify in writing to XARROW the destruction of the Software. Termination of this Agreement and return or destruction of the Software will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees and expenses that have accrued or are otherwise owed by Licensee under this Agreement or any Order Form received and accepted by XARROW. The parties’ rights and obligations under the following sections of this Agreement will survive termination of this Agreement: Article 1.0, Section 2.2, Section 2.3, the last sentence of Section 2.4, Section 2.5, Section 2.6, this Article 4.0, Article 5.0 and Article 6.0.

5.0 Indemnity, Warranties and Remedies

5.1 Infringement Indemnity. Subject to the limitations in Article 6 of this Agreement, XARROW will defend and indemnify Licensee against a third party claim (an "Indemnified Claim") that the Software infringes any copyright enforceable in any Included Jurisdiction or misappropriates any trade secret protected under the laws of any of the People's Republic of China, provided that: (i) Licensee notifies XARROW in writing within 30 days of the claim; (ii) XARROW has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides XARROW with the assistance, information and authority necessary to perform XARROW’s obligations under this Section. For any intellectual property claim for which a defense is not provided in this Section 5.1, XARROW, in its sole discretion, may elect to treat such intellectual property claim as an Indemnified Claim as defined in this Section 5.1. XARROW will have no liability for any claim of infringement based on use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current unaltered release of the Software which was obtainable by Licensee from XARROW.

XARROW will have no obligation to any Licensee for any Indemnified Claims relating to allegations of copyright infringement which arise outside the geographical boundaries of the People's Republic of China.

If the Software is held, or is believed by XARROW, to infringe, then XARROW will have the option, at its expense, to: (i) modify the Software to be noninfringing; or (ii) obtain for Licensee a license to continue using the Software. If, in XARROW’s sole discretion, it is not economically or commercially reasonable to perform either of the above options then XARROW may terminate the license for the infringing Software and refund to Licensee the License Fee paid to XARROW for the infringing Software. This Section 5.1 states XARROW’s entire liability and Licensee’s sole and exclusive remedy for infringement.

5.2 Limited Warranties and Disclaimers.

  5.2.1 Limited Software Warranty. XARROW warrants for a period of ninety (90) days following delivery of the Software that the Software will perform substantially in accordance with the Documentation.

  5.2.2 Limited Media Warranty. XARROW warrants for a period of ninety (90) days following delivery of the Software that the CD-ROMs, diskettes, or other media upon which the Software is delivered are free from defects in materials and workmanship under normal use.

  5.2.3 Limited Technical Support Services Warranty. XARROW warrants for a period of ninety (90) days following performance of the service that its Technical Support Services will be performed consistent with generally accepted industry standards.

  5.2.4 Disclaimer of All Other Warranties. THE WARRANTIES ABOVE IN THIS SECTION 5.2 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY XARROW, ITS DEALERS, DISTRIBUTORS OR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES GIVEN IN THIS SECTION, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

XARROW does not warrant that the Software will meet Licensee’s requirements, that the Software will operate in combinations other than as specified in the Documentation, that the operation of the Software will be uninterrupted or error-free or that Software errors will be corrected. Preproduction releases (including Alpha and Beta site releases) of Software and Technical Support Services related thereto are distributed “AS IS”.

5.3 Exclusive Remedies. For any breach of the warranties contained in Section 5.2, Licensee’s exclusive remedy, and XARROW’s entire liability, will be:

  5.3.1 For Software. During the Warranty period, XARROW will use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any such material defect (i.e. any defect covered by subsection 5.2.1) in a reasonably timely manner. If XARROW is unable to make the Software operate as warranted, then Licensee may, within thirty (30) days after XARROW’s failure to cure or fix the defect, elect to terminate the license granted hereunder and recover the License Fee paid to XARROW with respect to the defective Software.

  5.3.2 For Media. The replacement of the defective media returned within ninety (90) days of delivery of the Software.

  5.3.3 For Technical Support Services. The reperformance of the services, or if XARROW is unable to perform the services as warranted, Licensee will be entitled to recover the fees paid to XARROW for the unsatisfactory service.
6.0 General Provisions.

6.1 Update Policy. XARROW may from time to time, but has no obligation to, create Updates of the Software or components thereof. Subject to the Technical Support Services Policy in effect at the time Licensee orders Technical Support Services, XARROW will make such Updates available to Licensee provided Licensee has entered into a Annual Support Agreement, and not in breach of this Agreement at the time of the release of the Update.

6.2 Liability Limitation. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR LICENSEE'S VIOLATION OF ARTICLE 2 OR SECTION 6.12 HEREOF, IN NO EVENT WILL EITHER PARTY, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE, INCLUDING XARROW LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XARROW’S LIABILITY FOR DAMAGES AND EXPENSES HEREUNDER OR RELATING HERETO (WHETHER IN AN ACTION IN CONTRACT OR TORT) WILL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES PAID TO XARROW WITH RESPECT TO THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM LICENSEE’S USE OF PARTICULAR LICENSE FILES OR TECHNICAL SUPPORT SERVICES THEN SUCH LIABILITY WILL BE LIMITED TO LICENSE FEES PAID TO XARROW FOR THE RELEVANT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, PORTIONS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN XARROW AND LICENSEE. XARROW’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

6.3 Governing Law. This Agreement will be interpreted and enforced in accordance with the laws of the People's Republic of China, without regard to choice of law principles.

6.4 Jurisdiction and Arbitration. All disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by the parties’ good faith attempt to negotiate a resolution will be submitted to final and binding arbitration in Xi’an, Shaanxi Province, People's Republic of China. The costs of arbitration will be shared equally by the parties. The provisions of this Section may be enforced by any court of competent jurisdiction. The arbitrator will not be empowered to award damages in excess of, or inconsistent with, the liability limitations contained in this Agreement; however, the prevailing party will be entitled to an award of all costs, fees and expenses, including expert witness fees and attorneys fees, to be paid by the party against whom enforcement is ordered.

6.5 Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail to the address shown on the relevant Order Form (if to Licensee) or to the XARROW address shown on the relevant Order Form (if to XARROW).

6.6 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

6.7 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of XARROW’s proprietary rights in the Software, no action, regardless of form, arising from or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.

6.8 Entire Agreement. This Agreement (together with any information from the Order Forms and License Files necessary to identify the Software that is the subject of this Agreement or further specific restrictions applicable to such Software) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. No other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement and any Order Form issued by XARROW will supersede the terms in any Order Form or other purchasing document submitted by Licensee; and the terms of any Licensee Order Form or other purchasing document are expressly rejected to the extent inconsistent with the terms of this Agreement. Certain components of the Software may also be subject to a paper or electronic license agreement delivered by or on behalf of XARROW concurrently herewith, the terms of which will be supplemental hereto to the extent not inconsistent herewith.

6.9 Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained will be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.

6.10 Export Restrictions. Licensee agrees to comply fully with all relevant export laws and regulations of People's Republic of China to assure that neither the Software nor any direct product thereof are (I) exported, directly or indirectly, in violation of Export Laws; or (ii) are intended to be used for any purposes prohibited by the Export Laws. Without limiting the foregoing Licensee will not export or re-export the Software: (i) to any country to which the People's Republic of China has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country; (ii) to any end user who Licensee knows or has reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in People's Republic of China export transactions by any agency of the People's Republic of China government.

6.11 Third Party Intellectual Property Right Notices. The Software may contain components that are owned by third parties (“XARROW Licensors”) and are incorporated into, or embedded in, the Software pursuant to license arrangements between XARROW and such third parties. Use of the XARROW Licensor components embedded in the Software is subject to: (i) this Agreement or (ii) the XARROW Licensors end user license agreement (EULA) if provided with the installation of the Software. In addition, License agrees that the embedded components may not be used in any other fashion or for any other purpose other than as provided under this Agreement or the EULA. Copyright and other proprietary rights notices of XARROW and XARROW Licensors are contained in the Software, and Licensee will not modify, delete, or obfuscate any such notices.

6.12 Confidentiality. The Software, including the Documentation, the terms and pricing under this Agreement, and any other information that may be marked as confidential is confidential and proprietary information of XARROW (“Confidential Information”). Results of any benchmark tests on the Software run by Licensee may not be disclosed outside of Licensee’s organization without the prior written consent of XARROW. Licensee will hold the Confidential Information in strict confidence during the term of this Agreement and for a period of five (5) years thereafter. Licensee will take reasonable steps to ensure that its employees and agents also comply with the strict confidentiality obligations of this Section. Licensee acknowledges that confidential aspects of the Software (including any source code) is a trade secret of XARROW, the disclosure of which would cause substantial harm to XARROW that could not be remedied by the payment of damages alone. Accordingly, XARROW will be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this Section 6.12.

6.13 Note on JAVA Support. The Software may contain support for programs written in JAVA. JAVA technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapons systems, in which the failure of JAVA technology could lead directly to death, personal injury, or severe physical or environmental damage.