End user agreement for Zend Studio for Mac
ZEND STUDIO LICENSE AGREEMENT ZEND TECHNOLOGIES LTD. SOFTWARE LICENSE AGREEMENT ("AGREEMENT") IMPORTANT! READ THESE TERMS CAREFULLY. By DOWNLOADING / INSTALLING THIS SOFTWARE YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THE SOFTWARE, YOU SHOULD NOT DOWNLOAD / INSTALL THE SOFTWARE, YOU SHOULD NOT USE THE SOFTWARE, AND IF YOU ALREADY DOWNLOADED OR INSTALLED THE SOFTWARE YOU SHOULD REMOVE THE SOFTWARE FROM YOUR SYSTEM AND DESTROY ALL COPIES. Terms and Conditions 1. DEFINITIONS "Authorized User" means, for each Software license, an employee, agent, or consultant of Licensee that is authorized by Licensee to use the Licensed Program on the Designated Computer. "Confidential Information" is defined in Section 6.1. "Designated Site" means the physical facility where Licensee first downloads and installs the Licensed Program. "Designated Computer" shall mean a computer identified during the installation process with respect to a particular Software license and on which the Licensed Program is installed and operating under any number of operating system platforms. "Documentation" is defined in Section 2.1. "Effective Date" means the effective date of the order of the Licensed Program. "License" means the license granted to the Software under the terms and conditions set out in Section 2 below. "License Fee" means the license fee payable for the License, set forth in Zend's then current price list, plus any applicable Taxes. "Licensed Program" means Zend software purchased by Licensee, the current, generally released version as of the Effective Date, as installed by this installation process, and any Upgrades thereto provided by Zend pursuant to Software Support and Upgrades policy, in machine-executable form only. "Software" is defined in Section 2.1. "Software Support and Upgrades Fees" is defined in the Support Terms. "Software Support and Upgrades Services" is defined in the Support Terms. "Support Terms" means Zend's standard Software Support and Upgrades Terms and Conditions, set out in Exhibit A to this Agreement, attached hereto and made a part hereof by reference. "Taxes" is defined in Section 4.2. "Term" is defined in Section 10.1. "Upgrades" is defined in the Support Terms. "Zend" means Zend Technologies Ltd., having its principal offices at P.O. Box 3619, Ramat-Gan 52136, Israel. 2. THE RIGHT TO USE SOFTWARE. 2.1. License. Subject to the terms and conditions set forth below and Licensee's payment of the License Fee, Zend grants to Licensee a limited, non-exclusive and non-transferable License, during the Term (as defined below) to install and operate the Licensed Program, in machine-executable form only on the Designated Computer and solely in accordance with the associated delivered documentation (the "Documentation") (the Documentation together with the Licensed Program collectively, the "Software"). The License is limited to one Authorized User for each Designated Computer. 2.2. Actual Use. In the event that Licensee's actual number of Authorized Users of a particular Licensed Program exceeds the licensed number of Authorized Users on such License, Licensee shall promptly pay Zend the fees required to license such additional Authorized Users based upon Zend's then-current commercial price list. 2.3. Licensee shall implement reasonable controls to ensure that it does not exceed the maximum number of licensed Authorized Users of the Licensed Program. Zend reserves the right to audit Licensee's use of the Licensed Program during normal business hours and with reasonable notice and to include means within the Licensed Program to limit Licensee's use of the Licensed Program to the licensed number of Authorized Users. 2.4. Use. The Software may be used (i) only by Authorized Users, (ii) only at the Designated Site and on the Designated Computer and for which Licensee has paid the applicable License Fee. Licensee may only use the Software for its internal business use and not in the operation of a service bureau, time sharing or outsourcing service or for the benefit of any other person or entity. 2.5. Licensee is authorized to use the Software on a single substitute or backup computer located at the Designated Site on a temporary basis without charge any time a Designated Computer is inoperative due to a malfunction beyond the control of Licensee. Upon Licensee's prior written notice and delivery to Zend of a new host identification and receipt from Zend of a new license key, Licensee may transfer the Software on a permanent basis to a single replacement computer without charge. 2.6. Restrictions. Licensee may only make one copy of the Software as necessary for bona fide backup or archival purposes. No identifying marks, copyright or proprietary rights notices may be deleted from any copies of the Software made by Licensee. Except as otherwise expressly permitted hereunder, Licensee shall not rent, transfer, distribute, modify or translate the Software or decompile, create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software, or adapt the Software, or any portion thereof, in any way or use it to create a derivative work. 3. SOFTWARE SUPPORT AND UPGRADES SERVICES Licensee may elect to purchase Software Support and Upgrades Services by so ordering from Zend and paying Zend the applicable Software Support and Upgrades Services Fees in accordance with the Support Terms. 4. PAYMENT 4.1. Payment of Fees. Licensee shall pay the non-refundable License Fee prior to downloading the Software. At Licensee's option during the online registration process, Zend will either charge the License Fee to the credit or debit card account provided by Licensee, or provide Licensee with a purchase order to print out, duly execute and fax or mail to Zend followed by a wire transfer of the License Fee. Licensee will only gain access to the Licensed Program once the License Fee has been transferred and accepted by Zend. 4.2. Taxes. Licensee shall, in addition to all other payments required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, income taxes on profits which may be levied against Zend ("Taxes"). Licensee shall reimburse Zend for the amount of any such Taxes or duties paid or accrued directly by Zend as a result of this transaction. 4.3. Late Payment. If payment is not received by Zend from Licensee's credit or debit card issuer or its agents, Licensee agrees to pay all amounts due upon demand by Zend. If Licensee fails to pay License Fees or Software Support and Upgrades Fees by their due date, without limitation of other rights and remedies, at Zend's request, Licensee shall pay late charges of one and one half percent (1.5%) per month, together with all of Zend's expenses and collection costs, including reasonable attorneys' fees, incurred in enforcing the Agreement. Payments shall be paid in U.S. currency. Any rate of exchange which may be applicable to payments due or other monetary calculations for purposes of this Agreement shall be the rate set forth in the Wall Street Journal on the day that the payment is due. 5. PROPRIETARY RIGHTS 5.1. Title to Software. Licensee acknowledges that the Software (and any copies thereof) are the sole and exclusive property of Zend or Zend's licensors, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein or appurtenant thereto, in all media now known or hereinafter developed. 5.2. Licensee's Rights. Licensee is not purchasing title to the Software or copies thereof, but rather is being granted only a license to use the Software. 5.3. Rights Reserved by Zend. All rights not granted to Licensee herein are reserved to Zend. 6. CONFIDENTIALITY 6.1. Restrictions on Use. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available to others any portion of the Software, the financial terms of this Agreement, or any other information identified in writing by Zend as confidential or proprietary or which, at law or equity, ought to remain confidential (collectively, the "Confidential Information") without Zend's prior, written consent in each instance. 6.2. Disclosure to Employees. Licensee agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Zend's right therein and to take appropriate action by instruction or agreement with its employees who are permitted access to the Confidential Information to satisfy Licensee's obligations hereunder. 6.3. Identifying Unauthorized Use. Licensee shall use its best efforts to assist Zend in identifying and preventing any unauthorized use, copying or disclosure of the Confidential Information, or any portion thereof, or any of the algorithms or logic contained therein. Licensee shall advise Zend immediately in the event Licensee learns or has reason to believe that any person to whom Licensee has given access to the Confidential Information, or any portion thereof, has violated or intends to violate the confidentiality of the Confidential Information or the proprietary rights of Zend, and Licensee will, at Licensee's expense, cooperate with Zend in seeking injunctive or other equitable relief in the name of Licensee or Zend against any such person. 6.4. Degree of care. Licensee agrees to maintain the confidentiality of the Confidential Information using at least as great a degree of care as Licensee uses to maintain the confidentiality of Licensee's own most confidential information. 6.5. Remedies on Breach. Licensee acknowledges that the disclosure of any aspect of the Confidential Information will immediately give rise to continuing irreparable injury to Zend inadequately compensable in damages at law, and Zend is entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Zend may immediately terminate this Agreement, including all license rights granted herein, in the event Licensee breaches any of its confidentiality obligations herein. 7. INDEMNITY Licensee will, at its own expense, defend any action brought by a third party against Zend to the extent that such action is based on a claim arising from or relating to Licensee's use of the Software, provided Zend promptly notifies Licensee in writing of any such claim and, provided further, that Licensee shall have the exclusive right to control such defense. Licensee's obligation in this Section 7 shall be relieved by Zend's failure to promptly notify Licensee of a claim only to the extent that Licensee is materially prejudiced by such failure. In no event shall Licensee settle any such claim, lawsuit or proceeding in any manner that materially prejudices Zend's rights without Zend's prior written approval. 8. WARRANTY ALL SOFTWARE AND SERVICES OF ZEND ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). ZEND DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT LICENSEE'S OWN RISK. 9. LIMITATION OF LIABILITY ZEND AND ZEND'S LICENSORS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ZEND OR ZEND'S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZEND OR ZEND'S LICENSORS BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL ZEND'S AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY LICENSEE TO ZEND UNDER THIS AGREEMENT. 10. TERM OF TERMINATION 10.1. Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue perpetually, or as specified in the purchase order, unless terminated earlier pursuant to this Agreement. 10.2. Termination. In addition to its rights as set forth elsewhere in this Agreement, at law or in equity: (i) Zend shall have the right to terminate this Agreement upon thirty (30) days written notice to Licensee upon material violation or breach by Licensee, its officers or employees of any provision of this Agreement, in the event that such breach has not been cured within such period, and (ii) this Agreement shall automatically terminate in the event that Licensee fails to meet its payment obligations hereunder. 10.3. Effect of Termination. The termination of this Agreement shall automatically, and without further action by Zend, terminate and extinguish the License. In the event of termination of this Agreement by Zend, Zend shall have the right, at any time, to take immediate possession of the Software, and all copies thereof, wherever located. Within five (5) days after the termination of the License granted hereunder, Licensee shall return the Software, including all copies thereof, to Zend, or upon request of Zend, destroy the Software and all copies thereof and certify in writing that the same have been destroyed. 10.4. Survival. Notwithstanding the foregoing, Sections 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the expiration or termination hereof for any reason. 11. OPERATING ENVIRONMENT Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Licensed Program. 12. EXPORT RESTRICTIONS THIS LICENSE AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. LICENSEE SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF ZEND AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. 13. U.S. Government Restricted Rights. The Software (including the Documentation) is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19 as amended, or any successor regulations thereto. 14. GENERAL 14.1. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes and merges all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof. This Agreement may not be modified or altered except by written instrument duly executed by both parties. 14.2. Waiver. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, with the exception of violation of Zend's proprietary rights in the Software or the confidentiality obligations set forth herein. 14.3. Assignment. Licensee may not assign or sublicense, without the prior written consent of Zend, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity. 14.4. Governing Law. This Agreement and any action related hereto shall be governed by the laws of the State of California without reference to the conflict of laws provisions thereof. Zend and Licensee hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate court located in the State of Israel. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. 14.5. Relationship of Parties. It is expressly agreed that Zend and Licensee are acting hereunder as independent contractors. 14.6. Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to Zend at Zend Technologies Ltd. at P.O. Box 3619, Ramat-Gan 52136, Israel, and to Licensee at the address provided by Licensee upon downloading the Licensed Program. Either party may change its address by giving written notice to the other party. Notwithstanding the foregoing, notice by Zend to Licensee may be effected by electronic mail sent to the electronic mail address indicated to Zend upon downloading the Licensed Program or to a different electronic mail address of which Licensee has notified Zend.