End user agreement for Ziata!
End-User License Agreement (license.txt 9/1/2001)
Copyright 1998, 2002 Ziata! Solutions, L.L.C.
All rights reserved.
Ziata! Solutions, L.L.C. ("Ziata! Solutions") and you (the
"Licensee"), intending to be legally bound hereby, agree as
1. ENTIRE AGREEMENT. Licensee acknowledges having read this
agreement and understands that this agreement (this "Agreement")
is the final, complete and exclusive statement of the entire
agreement between Ziata! Solutions and Licensee. This Agreement
supersedes any prior and contemporaneous proposals, licenses,
representations, purchase orders, and all other communications
arising from or related to the Software (as hereafter defined),
whether oral or written. Sales agents, distributors and
other representatives of Ziata! Solutions have no authority to
orally modify this Agreement. No terms or conditions, other
than those contained in this Agreement, and no other agreement
or understanding which in any way modifies or changes the terms
or conditions hereof or otherwise relates to the Software, shall
be binding unless made by a written agreement executed by duly authorized representative of each party, or as accepted by
Licensee during installation routine of this or any upgrade/update
of the Software.
2. DEFINITIONS. a) "Software" means the version of the
machine-readable computer software provided on the date hereof
(and as the same may be revised by Ziata! Solutions from time-
to-time, including, but not limited to maintenance releases,
updates and upgrades), in compiled object code binary format
executable by a computer (including any associated dynamic
link libraries, database engines), and the related database
files. b) "Documentation" means any version of the user
manual, any technical and support documentation, and
related distribution documents supplied by Ziata!
Solutions relating to the Software supplied by Ziata!
Solutions. c) "Spamming" means unsolicited mass
electronic mail to addressees with which the Licensee has
no prior relationship, and as more fully defined in the computer
industry among Internet Service Providers. d) "Registered
Version" means a version that is identified in the Software
Help-About box as "Registered" and for which the required
fee has been paid to Ziata! Solutions for the number of
Users licensed and having access to use the Software.
e) "Unregistered Version" means any version of the
Software that is not a Registered Version. f) "Help-About"
means selecting the menu item of Software labeled as
"Help", then selecting "About", and scrolling as may be
necessary to obtain the information begin referenced with
use of such term.
3. LICENSE. Subject always to the limitations set forth in
this Agreement, Ziata! Solutions hereby grants Licensee during
FOR AN UNREGISTERED VERSION:
A royalty-free, personal, non-exclusive and non-transferable
license to use the Software and any Documentation, for the
number of Users identified in the Software as distributed
and installed; and b) the right to transfer the Software in
its original condition in the same form received by Licensee
with all associated files in the original compressed
self-extracting archive file (consistent with the "shareware"
concept of distribution), provided that Licensee reasonably
believes that Licensee received such Software and associated
files in an unadulterated, unpirated condition.
FOR A REGISTERED VERSION:
A royalty-free, personal, non-exclusive and non-transferable
license to use the Software and any Documentation, for the
number of Users and for the modules to the extent identified
in the Software and registered by Licensee.
FOR ALL VERSIONS:
THE SOFTWARE CONTAINS FUNCTIONALITY FOR UNLIMITED MASS
ELECTRONIC MAILINGS; NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, SUCH FUNCTIONALITY SHALL NOT BE USED
FOR SPAMMING, SUBJECT TO IMMEDIATE TERMINATION OF THE
LICENSE, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
AND ANY OTHER RELIEF AFFORDED TO ZIATA! SOLUTIONS IN
THIS AGREEMENT. UPON RECEIPT BY ZIATA! SOLUTIONS OF
TWO (2) SPAMMING COMPLAINTS, SPAMMING SHALL BE DEEMED
TO HAVE OCCURRED IN ZIATA! SOLUTIONS' SOLE DISCRETION.
All right, title and interest to the Software and the
Documentation are, and shall remain at all times, exclusively
in Ziata! Solutions, except that certain database engine files
are the property of Inprise Corporation, and certain images
are the property of WordPerfect Corp., which are distributed
pursuant to a license.
Licensee is not entitled to maintenance fixes, updates or
upgrades of this product, unless Licensee is the user of a
Registered Version and has paid for the support program
specifically entitling Licensee to the same. Licensee shall
not alter (except to modify, add and delete data in the data
base files exclusively through use of the Software), assign,
create derivative works, copy or transfer (except transfers
to the limited extent expressly provided in this Section 3),
decompile, disclose, lease, market, publish, reverse
engineer or sublicense in any way the Software or
Documentation. Any attempt to break, or breaking of the
password codes for the Software (including the data
base files) or otherwise remove or alter the encryption
shall be a violation of this license. Licensee has no
right of access to the humanly-readable source code of
IN ORDER TO PROTECT YOU AND ZIATA! SOLUTIONS, YOU AGREE TO
BACKUP ALL SOFTWARE DATA AND ANY OTHER POTENTIALLY AFFECTED
DATA IN SUCH A MANNER TO PREVENT DATA LOSS. IN ALL CASES
OF USE, LICENSEE ASSUMES ALL RISKS OF USE. WITHOUT LIMITING
THE FOREGOING, ANY PRE-RELEASE OR BETA VERSION IS, BY
DEFINITION, NOT A COMPLETELY TESTED VERSION AND CONTAINS
Ziata! Solutions here grants Licensee a limited license, during the
term of the license granted to the Software, to use the term
"mindsaver" solely as an incident to use of the Software mindsaver
functionality; Licensee agrees the Ziata! Solutions is exclusive
owner of such term as a trademark and/or service mark.
Certain versions, releases, updates and/or upgrades of Ziata! may
be unlimited, limited, free and/or special editions. Use of any
of the same is permitted based upon the terms and conditions of
the appurtenant license agreed to during installation thereof,
and does not create an entitlement to future versions, releases,
fixes, upgrades, updates or upon the same or similar terms and
conditions. Licensee acknowledges that Ziata! Solutions has the
right to have the Software send automated e-mail notices to
Ziata! Solutions regarding the facts and circumstances of
Licensee's use of the Software, with such information as
determined by Ziata! Solutions.
4. TERM. The term of this Agreement shall be from the date of
Licensee's receipt of the Software and shall remain in force until
the earlier of: a) for any version that is identified to expire,
the date that the Software expires, is intended to expire
(as may be indicated in the Help-About dialog box) or is supposed to
expire based upon normal operating conditions; or b) Licensee is
in any breach of this Agreement. Upon the termination of the
License for any reason, Licensee shall thereafter make no
further use of the Software or Documentation.
5. DISCLAIMER OF WARRANTIES OR REMEDIES.
a) LICENSEE SPECIFICALLY ACKNOWLEDGES THAT THE SOFTWARE AND
DOCUMENTATION ARE PROVIDED TO LICENSEE SOLELY ON AN "AS IS"
BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED
OR STATUTORY, OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. ZIATA! SOLUTIONS DOES NOT
REPRESENT OR WARRANT THAT ANY ENCRYPTION ROUTINES USED TO
REGISTER THE SOFTWARE ARE UNBREAKABLE OR COMPLY WITH ANY
INDUSTRY STANDARDS FOR ENCRYPTION.
b) LICENSEE AGREES TO TAKE ALL NECESSARY PRECAUTIONS TO PREVENT
ANY LOSS OF DATA, INCLUDING, BUT NOT LIMITED TO, BACKING-UP OF
ALL DATA. LICENSEE SHALL VERIFY INFORMATION PRODUCED FROM THE
SOFTWARE AND DOCUMENTATION WITH ANY AND ALL SOURCES NECESSARY
FOR SUCH VERIFICATION, AND IF ANY SUCH INFORMATION IS DEFECTIVE,
THEN LICENSEE ASSUMES THE ENTIRE RESPONSIBILITY FOR ITS USE AND
CORRECTION. LICENSEE ASSUMES THE RISK OF ALL LOSS ARISING FROM
OR RELATED TO THIS AGREEMENT AND SHALL HOLD ZIATA! SOLUTIONS
HARMLESS FOR THE SAME. IN NO EVENT SHALL ZIATA! SOLUTIONS BE
LIABLE FOR ANY OBLIGATIONS OR LIABILITIES INCLUDING WITHOUT
LIMITATION LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, EXEMPLARY DAMAGE, OR FOR ANY CLAIM FOR THE LOSS OF
PROFITS, BUSINESS OR INFORMATION, OR DAMAGE TO GOOD WILL, EVEN
IF ZIATA! SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
THE BASIS OF THE BARGAIN FOR LICENSEE TO OBTAIN THE
LICENSE, AND A CONDITION PRECEDENT TO OBTAINING THE SOFTWARE
AND DOCUMENTATION IS FOR LICENSEE TO HEREBY SPECIFICALLY
ACKNOWLEDGE AND ADMIT THAT THE DISCLAIMERS OF REMEDIES AND
WARRANTIES AS STATED ABOVE, BY THE VERY NATURE OF THIS AGREEMENT
ARE APPROPRIATE AND ARE NOT UNCONSCIONABLE. IN NO EVENT SHALL
ZIATA! SOLUTIONS BE LIABLE FOR GREATER THAN ANY FEE PAID BY
LICENSEE TO ZIATA! SOLUTIONS.
c) LICENSEE SHALL INDEMNIFY AND HOLD ZIATA! SOLUTIONS HARMLESS
FOR ANY BREACH BY LICENSEE OF THIS AGREEMENT, INCLUDING
ZIATA! SOLUTIONS IS ENTITLED TO A PRELIMINARY OR PERMANENT
INJUNCTION OR A DECREE OF SPECIFIC PERFORMANCE IN ADDITION
TO ANY OTHER REMEDY ZIATA! SOLUTIONS MAY HAVE AT LAW OR EQUITY.
LICENSEE HEREBY WAIVES THE RIGHT TO ASSERT THE DEFENSE THAT
AN ADEQUATE REMEDY AT LAW EXISTS TO COMPENSATE ZIATA! SOLUTIONS.
ALL REMEDIES ARE CUMULATIVE.
NO REPRESENTATION IS MADE THAT THE SOFTWARE AND/OR
DOCUMENTATION IS ERROR-FREE, SUPPORT IS OR WILL BE AVAILABLE,
OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR-FREE. LICENSEE AGREES TO USE TEST DATA UNTIL SUCH TIME
AS LICENSEE REGISTERS THE SOFTWARE.
d) Nothing in this Agreement shall be deemed to create an
offer by Ziata! Solutions to register all or any portion of the
Software or to otherwise limit Ziata! Solutions' ability to have
different purchase terms and conditions for different potential licensees or licensees of the Software. Licensee agrees that
there is no offer to register the Software by anyone. Ziata!
Solutions reserves the right to reject any registration even
if such registration is submitted by automated Ziata! "wizards"
or forms. Ziata! Solutions reserves the right to evaluate the potential registrant and the intended use of the Software in
Ziata! Solutions' sole discretion.
e) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
IMPLIED WARRANTIES, AND INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and Documentation have been developed exclusively
at private expense, and are provided with RESTRICTED RIGHTS.
Use, duplication or disclosure by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the
Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52.227-19, as
applicable. Ziata! Solutions is the Contractor/Manufacturer, 429
Forbes Avenue, Pittsburgh, PA 15219-1616.
7. MISCELLANEOUS PROVISIONS. "Licensee" means you, the user,
personally, as well as your principal if you are acting in any
agency capacity. If you change your legal name, you must
notify Ziata! Solutions of the same so that the license code can
be updated. Terms and conditions of this Agreement shall be
severable, and if for any reason any term or condition is
determined to be invalid, illegal or unenforceable under
current or future law, such invalidity shall not impair the
operation of, or otherwise effect, the valid terms and
conditions of this Agreement, so long as the intent of this
Agreement is maintained. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania (without regard to its conflict
of law principles). Licensee consents to the personal
jurisdiction of the Commonwealth of Pennsylvania and agrees that
any legal proceedings arising out of, or relating
to, this Agreement shall be conducted solely in such
Commonwealth. A waiver by Ziata! Solutions of any breach of this
Agreement by Licensee shall not operate or be construed as a
waiver of any subsequent breach by Licensee.