End User License Agreement
THIS IS A LEGAL AGREEMENT BETWEEN “YOU” OR “THE CUSTOMER” (REFERRED TO AS “LICENSEE”) AND MARKZWARE (REFERRED TO AS “LICENSOR”).
Please read the terms and conditions of this Markzware License Agreement carefully before completing the installation process and using the Software. THE PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU BY MARKZWARE, FOR USE ONLY UNDER THE TERMS OF THIS LICENSE, AND MARKZWARE RESERVES ANY RIGHTS NOT EXPRESSLY GRANTED TO YOU. BY INSTALLING THE SOFTWARE PROGRAM OR OPENING THE PACKAGE CONTAINING THE PROGRAM, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. If you are not willing to be bound by the Markzware terms and conditions of this license agreement, you should promptly return the Software Program un-installed or the package in un-opened form
, and you will receive a full refund of your money. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU, THE LICENSEE AND MARKZWARE, THE LICENSOR, AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
1. License. ?This License allows one user to use one copy of the Software on a single computer, under a single operating system, at a time. To “use” the Software means that the Software is either loaded in the temporary memory (i.e., RAM) of a computer or installed on the permanent memory of a computer. (i.e., hard disk, CD ROM, etc.) You may install the Software on a common storage device shared by multiple computers, provided that you have no more users and computers having access to the common storage device than the number of licensed copies of the Software. Additional Licenses are needed for one copy of the Software stored on the common storage device accessed by multiple users of computers. Markzware Software applications employ the use of Internet based activation and registration. Such Software requires the user to have an internet connection and to allow the Software to communicate with the License server through standard internet ports in order to activate the Software; otherwise, the User must have some mechanism that locks-out any concurrent users or computers in excess of the number of licensed copies of the Software. The Licensee shall not have the right: (i) to deploy the Licensed Software in any manner that serves to support or enhance a service based business model including, but not limited to electronic commerce services, web hosting, digital asset management, collaboration of multiple third parties, auctions, file conversion, workflow and contact management; (ii) to offer the Software’s function as a service in any manner; or (iii) to deploy the Licensed Software in the manner of an application service provider, or Software as a Service (SaaS) provider or otherwise provide access to or use of the Software on a private or public network.
Installation. The User installs the Software for the first time which prompts the “Activation Process”. “Activation Process” means the installed Software will contact the License server to validate and return an activation token (downloaded file placed on the user’s computer) with a screen to inform the user that the product is activated.
Registration. The Registration screen will appear after the Activation Process. Registration is not required to activate the software, but is required to qualify for upgrade eligibility and to obtain technical support.
Enterprise License. The Software requires an Enterprise License activation token (not downloaded from the License server). The Licensee is required to report to the Licensor the number of users who have activated the Software on their computers. The Enterprise License has a duration period that requires the Licensee to renew prior to the expiration date. The Enterprise License is otherwise subject to all of the other terms and conditions of this Agreement.
Subscription Software. For Software available on a subscription-basis, the Customer may install and use the Subscription Software only on the permitted number of compatible computers during the license term. If the Subscription Software has not been activated within 90 days of purchase, the Software will become disabled. Upon subscription period expiration, the license will become inactive. A renewal payment must be made by the Customer prior to expiration in order to extend the existing license for an additional subscription time period. Contact Markzware Technical Support for license activation issues.
Dual Platform Software. The Software is licensed for use on a specific operating system platform. The Customer must purchase a separate license for use of the software on each operating system platform. For example, if the Customer desires to install the Software on both the Mac OS and Windows operating system platforms on a device that runs both of those platforms, the Customer must first purchase two separate licenses for the Software. This is true even if two versions of the Software, each designed for a different operating system platform, are delivered to the Customer on the same media.
Monitor. You agree that Markzware may monitor your use of the Software for compliance with these terms at any time. In the event that such monitoring reveals any use of the Software not in full compliance with the terms of this Agreement, Markzware will Blacklist this License. “Blacklist” means this Licensee will be denied updates, upgrades and technical support.
Copy for Backup. You may make one copy of the Software in machine-readable form, solely for backup purposes. The Software is protected by copyright law. As an express condition of this License, you must reproduce on each copy the Markzware copyright notice and any other proprietary legends that were on the original copy supplied by Markzware.
Rental/Lease Prohibition. You may not rent, lease, or lend the Software.
Transfer. You may permanently transfer all your rights under this License to another party by providing all copies of the Software licensed under this License together with a copy of this License and all written materials accompanying the Software, provided that you and the other party both re-register the Software by signing a Transfer of Software License Request and mailing it to Markzware.
Upgrades and Updates. If the Software is described as an “upgrade” or “update” you must be properly licensed to use a product identified by Markzware as being eligible for the upgrade in order to use the Software. Software labeled as an “upgrade” or “update” replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this License. If the Software is an upgrade or update of a component of a bundle of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer. If an “upgrade” or “update” completely replaces (a full installation) an existing licensed version of the Software, you may not use both versions of the Software, nor may you transfer them separately.
External Features. Certain Markzware Software applications may provide access to Markzware or 3rd party web sites, web logs (blogs) networks or other external services (collectively “Networks”). The use of any such services and the posting of content thereon, are provided as a convenience by Markzware and are at Your sole discretion and risk. Markzware assumes no liability whatsoever for interruption or removal or suspension of service or loss of user posted data or User Content on any Networks. “User Content” means user-posted content or information of any type or medium, including but not limited to: letters, emails or other messages; other forms of communication through a Markzware or 3rd party Network; personal user information; board posts; reader reviews; blogs, content ratings, data, notes and testimonials; poll votes; images; audio or video files; and software; whether or not derived through the use of the Software or other services of any Markzware or 3rd party Network. It is the User’s sole responsibility to independently back up their User Content to insure against any such loss.
No Endorsement of User Content. You are solely responsible for all User Content that you upload, post, email, transmit or otherwise make available on or through the use of the Software, a Markzware Network or any 3rd party Network (collectively, “Post”). You acknowledge and agree that Markzware does not endorse any User Content and is not responsible or liable for any User Content, even though it may be unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, or may infringe upon Markzware intellectual property or the intellectual property or other rights of another. You acknowledge that Markzware does not pre-screen User Content, and has no obligation to do so, but that Markzware and its designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move or remove any User Content that is Posted on or through any Markzware Network. Owners of 3rd party Networks may assert similar rights with respect to online properties under their aegis.
User Created Content. The Software may allow you to create content. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant Licensor an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services, including the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Licensor’s use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. This license grant to Licensor, and the above waiver of any applicable moral rights, survives any termination of this License.
Not for Resale (NFR) and Evaluation Copies. Software provided to you on an evaluation, promotional or “not for resale basis”, may only be used for testing, evaluation or demonstration purposes and may not be used in commerce, resold or transferred to any other party.
Demo Software. Demos will have a specific duration period that begins at the point of purchase, not activation. The Activation Process is required to start up the Demo Software.
2. Restrictions.? The Software contains trade secrets in its human perceivable form and, to protect them, YOU MAY NOT REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR OTHERWISE REDUCE THE SOFTWARE TO ANY HUMAN PERCEIVABLE FORM. YOU MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF. YOU MAY NOT PROVIDE ACCESS TO THE SOFTWARE BY ANY EXTERNAL OR OTHER MEANS INCLUDING, BUT NOT LIMITED TO INTERNET PROTOCOL, AND VIRTUAL PRIVATE NETWORK NOR AUTOMATE THE USE OF THE SOFTWARE BY THE USE OF THIRD PARTY MEANS OR IN ANY OTHER WAY EXCEPT AS PROVIDED HEREIN OR PROVIDED FOR BY OTHER LICENSOR PRODUCTS OR BY PRIOR, WRITTEN AGREEMENT WITH LICENSOR. YOU MAY NOT USE THE SOFTWARE TO AUTOMATE THIRD PARTY OR OTHER PRODUCTS IN A MANNER WHICH WOULD VIOLATE THE LICENSE AGREEMENT(S) OF THOSE PRODUCTS.
3. Termination.? This License Agreement is effective upon installing the Software obtained by electronic means or opening the package and shall continue until terminated. You may terminate this License Agreement at any time by deleting the activation URL and informing the Licensor of such. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to delete the activation URL and all copies associated with the Software program.
4. Export Law Assurances.?You agree that neither the Software nor any direct product thereof is being or will be shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the United States Export Administration Act and the regulations thereunder or will be used for any purpose prohibited by the Act.
5. Limited Warranty and Disclaimer, Limitation of Remedies and Damages.? YOU ACKNOWLEDGE THAT THE SOFTWARE MAY NOT SATISFY ALL YOUR REQUIREMENTS OR BE FREE FROM DEFECTS. MARKZWARE WARRANTS THE MEDIA ON WHICH THE SOFTWARE IS RECORDED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR 90 DAYS FROM PURCHASE, BUT THE SOFTWARE AND ACCOMPANYING MATERIALS ARE LICENSED “AS IS.” ALL IMPLIED WARRANTIES AND CONDITIONS (INCLUDING ANY IMPLIED MARKZWARE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE DISCLAIMED AS TO THE SOFTWARE AND ACCOMPANYING MATERIALS AND LIMITED TO 90 DAYS AS TO THE MEDIA. YOUR EXCLUSIVE REMEDY FOR BREACH OF WARRANTY WILL BE THE REPLACEMENT OF THE MEDIA . IN NO EVENT WILL MARKZWARE OR ITS DEVELOPERS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR USER CONTENT AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR NETWORK OR ACCOMPANYING MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF MARKZWARE OR AN AUTHORIZED MARKZWARE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Markzware liability to you for actual damages for any cause whatsoever, and regardless of the form of the action, will be limited to the greater of $5 or the money paid for the Software that caused the damages.
THE ABOVE LIMITATIONS WILL NOT APPLY IN CASE OF PERSONAL INJURY ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. Consent to Collect and Use Data. ?You agree and consent that Licensor and it subsidiaries may collect and use technical and related information, including but not limited to technical and configuration information about your computer, system and application software and hardware elements, that is gathered for the purposes of facilitating installation, activation and updates of the Software, for product support and other services, if any, relating to the Software, your use of Software features, and to verify compliance with the Terms of this License Agreement. If you include personal information, then such personal information will automatically be transmitted to Licensor and used as described herein. All information collected by Licensor is intended to be anonymous information that does not disclose your identity or constitute personal information, and will not be sold to third parties.
7. General.? This License will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law. If any provision of this License shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this License will remain in full force and effect. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement or to any dispute or transaction arising out of this Agreement. This Agreement shall be construed (without regard to conflicts or choice of law principles) under the laws of the State of California, as such law is applied to agreements between California residents entered into and to be performed within California, except as governed by federal law. Unless expressly waived by Licensor in writing for the particular instance or contrary to local law, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof should be the state and federal courts located in Licensor’s principal corporate place of business (Orange County, California, U.S.A.). Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California state or federal law.
U.S. Government Restricted Rights. If you are a U.S. Government end-user, this License of the Software conveys only “RESTRICTED RIGHTS,” and its use, disclosure and duplication are subject to Federal Acquisition Regulations, 52.227-7013 (c) (1) (ii). The Software and documentation have been developed entirely at private expense and are provided as “Commercial Computer Software” or “restricted computer software.” Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Date and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at FAR 52.227-19, as applicable. The Contractor/ Manufacturer is the Licensor at the location listed below.
8. Trademark. ?The Software may be governed by a trademark or copyright registered by Licensor with the U.S. Federal Government. No right, license, or interest to such trademark or copyright, including any Markzware trademark or copyright, is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademark or copyright.
9. Costs of Litigation.? If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
10. Severability.? Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
11. No Waiver. ?The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.