Xibo End User Licence Agreement (EULA)
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Xibo End User Licence Agreement (EULA)
Please read these licence terms carefully
This end user licence agreement (EULA) is a legal agreement between you (you) and Xibo Signage Limited incorporated and registered in England and Wales with company number 07811749 whose registered office is at Curtis House, 34 Third Avenue, Hove, BN3 2PD, United Kingdom; or Xibo Signage Netherlands BV, a wholly owned subsidiary of Xibo Signage Ltd, incorporated and registered in The Netherlands with Kvk 80891101 whose registered office is at Blaak 520, 3011TA, Rotterdam, Netherlands; (Xibo Signage, us or we):
YOU MUST ONLY ACCEPT THESE TERMS IF YOU AGREE TO THEM IN THEIR ENTIRETY.
by accepting these terms you THEREFORE EXPRESSLY agree that:
1. Definitions and interpretation
AGPLv3: means the GNU Affero General Public License 3.0 details of which can be found at https://opensource.org/licenses/AGPL-3.0.
Acceptable use Policy: means the Xibo acceptable use policy as amended from time to time;
Documentation: means any documentation, including online documentation, Specification, Xibo Manual and Knowledge Base, provided by us in the performance of this EULA and as amended from time to time;
End User: means the purchaser or licensee of the Xibo Solution or Xibo Cloud licence under the terms of this EULA;
Force Majeure: means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, strikes, natural disaster or adverse weather conditions;
Intellectual Property Rights (IPRs): means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, mask works, utility models, domain names and all similar rights and, in each case:
a) whether registered or not,
b) including any applications to protect or register such rights,
c) including all renewals and extensions of such rights or applications,
d) whether vested, contingent or future and
e) wherever existing;
Release: means the release version of the Xibo Solution acquired by the End User (for example 1.8.X, or 1.9.x or 2.X.X) for which patches and updates shall be made available to the End User by us under this EULA.
Specification: means the specification for the Xibo Solution or Xibo Cloud as set out in the Documentation or made known to the End User and as amended from time to time.
Xibo Cloud: means the cloud hosted version of the Xibo Solution, comprising proprietary or open source code, components or materials, including:
a) Content Management System (Xibo CMS)
b) Xibo Player(s)
and associated display slots, urls, domains and other elements purchased by the End User as part of the solution, and the Documentation.
Xibo Solution: means the Xibo Digital Signage Solution comprising proprietary or open source code, components or materials, including:
a) Xibo CMS
b) Xibo Message Relay (XMR)
c) Xibo Manual
d) Xibo Player(s)
that, among other features, powers digital signage networks on smart TV and display screens, and the Documentation.
In this EULA, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 references to subclauses, clauses or Schedules are to subclauses, clauses or Schedules of this EULA;
1.2.3 references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
1.2.4 ‘including’ (or similar words) means including without limitation;
1.2.5 clause headings do not affect their interpretation; and
1.2.6 references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.
2 Grant and scope of licence, minor changes and Releases
2.1 Xibo Open Source Components
2.1.1 In consideration of you agreeing to abide by the terms of the AGPL 3.0 the following components of the Xibo Solution shall be licensed to you:
a) Xibo CMS
b) Xibo Message Relay (XMR)
c) Xibo Manual
d) Xibo Windows Player, and
e) Xibo Linux Player
collectively the ‘Xibo Open Source Components’.
2.2 Xibo Solution
2.2.1 In consideration of you agreeing to abide by the terms of this EULA, we hereby grant to you a personal licence to use the Xibo Solution, except the Xibo Open Source Components, subject to the following conditions:
(a) Exclusivity: the licence is non-exclusive;
(b) Transferability: the licence is non-transferable and cannot be sublicensed;
(c) Equipment: the Xibo Solution may only be used on the hardware and applications set out in the Specification;
(d) Purpose: the Xibo Solution may only be used in connection with the Customer’s own purposes subject to other restrictions on use in clause 3 (Use of the Xibo Solution); and
(e) Term: the EULA extends to a single Release of the Xibo Solution which Xibo Signage shall maintain for a reasonable period.
2.3 Xibo Cloud
2.3.1 In consideration of you agreeing to abide by the terms of this EULA, we hereby grant to you a personal licence to use the Xibo Cloud, and a single version of the Xibo Player (the cost of which is separate to a display slot licence), and associated elements as required by the End User, except the Xibo Open Source Components, subject to the following conditions:
(a) Exclusivity: the licence is non-exclusive and extends to the hosting of a single display slot for use with a single Xibo Player;
(b) Transferability: the licence is non-transferable and cannot be sublicensed;
(c) Equipment: Xibo Signage shall host the Cloud Xibo Solution while the Xibo Player may only be used on the hardware and applications set out in the Specification;
(d) Purpose: the Software may only be used in connection with the Customer’s own purposes subject to other restrictions on use in clause 3 (Use of the Solution) below; and
(e) Term: on a monthly or annual licence, as agreed by Xibo Signage or its authorised Distributor or Reseller.
(2.2 and 2.3 shall be collectively referred to as a “Licence”).
3 Use of the solution
3.1 You shall not use the Xibo Solution or Xibo Cloud contrary to any restriction stated in this EULA.
3.2 Except as permitted by AGPL 3.0 you are not permitted to:
3.2.1 distribute, license, sell or otherwise deal in or encumber the Xibo Solution or Xibo Cloud;
3.2.2 translate, adapt, disassemble, reverse engineer or decompile the Xibo Solution (or any part of it), nor make any modifications, additions or enhancements to it;
3.2.3 combine, merge or otherwise permit the Xibo Solution (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;
3.2.4 copy the Documentation, Xibo Solution (or any part of it), except for such back-ups as are reasonably necessary, provided that you keep accurate and up-to-date records of such copying;
3.2.5 use the Xibo Solution or Xibo Cloud on behalf of or make it available to any third party or allow or permit a third party to do so, unless expressly authorised by Xibo Signage or its authorised Distributor or Reseller.
3.3 We may update or require you to update the Xibo Player or Xibo Solution to a new Release, for example in the case of a technical, operational or security risk, provided that the same shall always match the Specification – the Xibo Player or Xibo Solution will work with the current or previous Release of the operating systems as set out in the Specification (as it may be amended from time to time).
4 Limits on liability
4.1 Subject to the following, in no event shall the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this EULA exceed:
4.1.1 the value of any Licence fee paid by you for the Xibo Solution or Xibo Cloud in respect of any one claim or series of related claims; and
4.1.2 provided that this shall be subject to an overall limit of two times any monthly or annual Licence fee paid under this EULA in respect of any and all claims, losses and damages arising under or in connection with this EULA.
4.2 One party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this EULA shall not extend to any loss of profits, business opportunity, reputation or goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever.
4.3 The parties agree that the limitations on liability in this EULA are reasonable given their respective commercial positions and likely ability to purchase relevant insurance in respect of risks under this EULA.
4.4 Notwithstanding the above neither party excludes or limits any liability for:
4.4.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
4.4.2 fraud or fraudulent misrepresentation; or
4.4.3 any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 or comparable consumer regulation; or
4.4.4 any other liability to the extent the same cannot be excluded or limited by law.
5.1 Xibo Signage warrants and represents that:
5.1.1 it has the right, power and authority to enter into this EULA and grant to you the rights (if any) contemplated herein and supply the Solution;
5.1.2 if the End User has purchased a Licence the Xibo Solution or Xibo Cloud will:
(a) conform and perform according to the Specification in all material respects, when used in the manner and equipment directed or recommended in the Documentation;
(b) be free from defects in workmanship and materials, and free from viruses and other malicious code when supplied, and
(c) the Xibo Solution or Xibo Cloud does not infringe the Intellectual Property Rights of any third party;
5.1.3 the Documentation will provide users with adequate instructions to enable them to effectively use the Xibo Solution or Xibo Cloud;
5.2 The warranties (and representations) specified above are subject to you giving notice to Xibo Signage as soon as reasonably possible upon becoming aware of the breach of warranty (or representation) but in the case of a warranty (or representation) as to conformance and performance according to the Specification, such notice must be given within 30 days (Warranties).
5.3 We do not warrant or represent that the Xibo Solution or Xibo Cloud shall be:
5.3.1 uninterrupted or error free;
5.3.2 compatible with third party software or equipment, proprietary platform or open source code or solution, other than that described in the Specification.
5.4 If the End User has acquired one or some of the Xibo Open Source Components it shall be provided to the End User ‘as is’ and with no warranties whatsoever.
5.5 All other warranties and representations as to the Xibo Solution or Xibo Cloud, or any part of it, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
5.6 Any warranties given by us shall be subject to you using the Xibo Solution or Xibo Cloud, or any part of it, in compliance with this EULA and the Documentation, and we shall not be liable under this clause for, or required to remedy, any problem arising from:
5.6.1 a failure to install any update, patch, fix or improvement previously made available or provided by us;
5.6.2 any modification made to any part of the Xibo Solution or Xibo Cloud by anyone other than us without our express prior written consent; or
5.6.3 any defect or error wholly caused by any equipment or third-party software used in connection with the Xibo Solution or Xibo Cloud, or any part of it, other than that described in the Specification.
6 Intellectual Property Rights and Faults
6.1 Except for a Licence as expressly granted above, you shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Xibo Solution or Xibo Cloud or in any part of it, or in any copies of it and no Intellectual Property Rights of either party are transferred or licensed as a result of this EULA.
6.2 Xibo Signage in no way sells or grants to you ownership or a licence, where none is available for Xibo Signage to give, in any open source or non-proprietary code, components or materials, including the Xibo Open Source Components, comprising or incorporated into the Xibo Solution or Xibo Cloud.
6.3 You acknowledge and understand that the Xibo Solution or Xibo Cloud contains confidential and proprietary information and you shall not conceal, modify, remove, destroy or alter in any way any proprietary Intellectual Property Rights or trade marks of Xibo Signage, or our licensors, on or in the Xibo Solution or Xibo Cloud or any related materials or documentation except as permitted by this EULA.
6.4 If you notify us in writing of any defect or fault in the Xibo Solution or Xibo Cloud as a result of which it fails to perform substantially, including in accordance with clause 5.1, or for any infringement of a third party’s Intellectual Property Rights, we will, at our sole option, either:
6.4.1 procure for you the right to continue using and possessing the Xibo Solution or Xibo Cloud; or
6.4.2 modify or replace the defective, faulty or infringing part of the Xibo Solution or Xibo Cloud and without adversely affecting the functionality of the Xibo Solution or Xibo Cloud as set out in this EULA so as to avoid the defect, fault, infringement or alleged infringement, provided that if, we having used reasonable endeavours, neither of the above can be accomplished on reasonable terms, we shall refund any Licence fees paid by you in respect of the Xibo Solution or Xibo Cloud.
This shall be your sole remedy in respect of the Xibo Solution or Xibo Cloud being defective, faulty or infringing Intellectual Property Rights, and in respect of which you shall make available all the information that may be necessary to help us to identify and remedy the defect or fault, or infringement.
7.1 In respect of any loss or damage suffered or incurred by either party under this EULA, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss or damage incurred.
8 Entire agreement
8.1 This EULA contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this EULA. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this EULA. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
9 Force Majeure
9.1 A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration, and uses reasonable endeavours to minimise the effects of that event.
9.2 If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 60 days, the other party may, within a further 14 days terminate this EULA on notice, otherwise this EULA shall continue in full force and effect.
10.1 We may terminate this EULA or applicable Licence immediately by written notice to you if you commit a material or persistent breach which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
10.2 Upon termination for any reason:
10.2.1 all rights granted to you under this EULA or applicable Licence shall cease;
10.2.2 you must cease all activities authorised by this EULA or applicable Licence; and
10.2.3 you must immediately delete or remove the Xibo Solution or relevant component of the Xibo Cloud from all equipment in your possession and immediately destroy or return to us (at our option) all copies then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
11 Communication and Notices
11.1 If you wish to contact us in writing, or if any condition in this Licence requires you to give us notice in writing, you can contact us via email at email@example.com.
11.2 If we have to contact you we will do so by email or other form of electronic communication.
11.3 You should ensure that any xibosignage.com or xibo.org.uk email addresses are white listed in any email spam filtering.
12.1 Each party is responsible for its legal and other costs in relation to the preparation and performance of this EULA.
12.2 Provisions which by their terms or intent are to survive termination of this EULA will do so.
12.3 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
12.4 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this EULA is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
12.5 We may assign, subcontract or encumber any right or obligation under this EULA, in whole or in part. You may not assign, subcontract or encumber any right or obligation under this EULA, in whole or in part, without the prior written consent of Xibo Signage or except as expressly permitted in this EULA.
12.6 No amendment or variation of this EULA will be valid unless agreed in writing by an authorised signatory.
12.7 If any clause in this EULA (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this EULA as soon as possible.
12.8 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
12.9 Any payments due by the End User under this EULA shall be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.
12.10 Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this EULA.
13 Governing law and jurisdiction
13.1 This EULA is governed by the law of England and Wales. All disputes under this EULA shall be subject to the exclusive jurisdiction of the courts of England and Wales.