quality, productivity, versatility and affordability.
Terms of Service
By installing, copying, or otherwise using the software, you are entering into a legal agreement and will be bound by its terms. If you do not agree to the terms of this Agreement, do not install or use the software. If you do not install or use the software, you may return it to your place of purchase for a full refund.This Standard Software License ("License Agreement") is entered into between ZBE, Inc., a California corporation, ("ZBE") and you (either an individual or a business entity) ("Customer").
1. LICENSE.
The Programs (as defined herein) are protected by international copyright laws and treaties, as well as other laws regarding proprietary rights. The Programs are licensed, not sold. Customer hereby accepts a non-transferable and non-exclusive license to use the Programs, upon the following terms and conditions:
2. PROGRAMS.
"Programs" means all software and documentation, whether hardcopy or electronic, provided to Customer concurrently with this License Agreement and all subsequent error corrections, updates, enhancements (collectively "Revisions") that are not provided with their own written license agreement. Revisions provided with their own written license agreement shall be governed by that agreement.
3. CONDITIONS.
The Programs are supplied to Customer solely for use on one central processing unit. To the extent the Programs execute on the Customer's personal computer, the license is strictly limited to one seat for use with the central processing unit in the computer onto which The Programs are initially installed. All right, title, and interest in and to the Programs and all related material are and shall at all times remain the sole property of ZBE and its third party licensors (henceforth "Suppliers"). Customer may use the Programs only in connection with the operation and management of Customer's own business. Customer is not authorized to grant sublicenses for use of the Programs or to permit usage of the Programs on an application-service-provider, service-bureau, or other time-sharing system basis for any purpose.
4. FEES.
Customer must make timely and full payment to ZBE for all monies owed ZBE for the Programs, any other ZBE equipment or under any related agreement in consideration of the license granted under this License Agreement. Payments must be in United States currency and, if by check, drawn on a United States bank. Customer agrees to pay all applicable sales, use, value added, import, or other taxes or duties, and any other fees or withholding related to the purchase of Programs or maintenance updates thereof.
5. TERM.
Except for provisions which survive the termination of this License Agreement and unless terminated earlier pursuant to the terms and conditions of this License Agreement, this license shall expire on the date which appears on the screen upon Activation. "Activation" means use by Customer of an authorized encryption key provided to Customer by ZBE for purposes of activating the Programs.
6. PROTECTION OF PROPRIETARY MATERIAL.
"Proprietary Material" shall mean the Programs in any form and the algorithms, technology and know-how embodied therein. "Proprietary Material," however does not include: (i) Information which is or becomes generally available in the public domain (other than through unauthorized disclosure by or caused by Customer); (ii) Information disclosed or made available to Customer by a third party without restriction and without breach of any relationship of confidentiality; (iii) Information independently developed by Customer if Customer establishes by clear and convincing evidence that such development was accomplished without access to the confidential information of ZBE; or (iv) the information displayed on the computer monitor screen when normally operated. Customer expressly acknowledges that the Proprietary Material is confidential and proprietary property of ZBE or Suppliers, or both, which derives independent economic value from its confidentiality, and hereby agrees to receive and maintain it in strict confidence, but in no event less than required by current industry standards, as they exist from time to time, nor less diligently than Customer maintains its own confidential and proprietary material. Without the prior written consent of ZBE, Customer shall not cause or permit disclosure of any Proprietary Material to any person other than Customer's employees and consultants whose responsibilities require access to such material. Customer agrees not to disassemble or reverse compile the Programs. Customer shall include all copyright and proprietary right notices provided by ZBE in or on all Proprietary Material. Customer shall not copy, in whole or in part, any of the Proprietary Material, nor any portion of the Programs in which ZBE has a copyright interest, except that Customer may make a machine-readable copy of the Programs for back-up or archival purposes. In the event of a malfunction, Customer may use this second copy of the Programs only on a temporary, non-concurrent basis for reinstallation. Customer shall take all reasonable steps to safeguard the Proprietary Material, and to ensure that no unauthorized person shall have access to any of it and that no unauthorized copy, in whole or in part, shall be made. Should Customer become aware of any suspected unauthorized use of the Programs, Customer shall immediately notify ZBE in writing specifying all relevant details. Customer's obligations under this paragraph shall survive any termination or expiration of this License Agreement and terminate forty years after the date hereof.
7. TERMINATION.
ZBE may terminate this License Agreement if Customer fails to comply with any of the terms and conditions of this License Agreement. This License Agreement shall automatically terminate upon filing of any petition under the Bankruptcy Code by or against Customer, upon any assignment for the benefit of creditors of Customer, or upon dissolution of Customer. Within thirty (30) days after the earlier of the date of expiration or termination of the license under this License Agreement, Customer shall furnish a written certificate, satisfactory to ZBE's counsel, that all original(s) and copies of the Programs and other Proprietary Materials, have been destroyed and/or returned to ZBE, and that no portion remains retrievable in any manner from any device within Customer's possession or control.
8. AUTOMATIC DEACTIVATION.
Soon after the expiration of Customer's license to use the Programs, the Programs will automatically deactivate. The Customer grants ZBE the right to also remotely deactivate the Programs if Customer breaches this License Agreement. Customer agrees not to reset the date function on the computer and understands that this may cause the Programs to permanently deactivate and will terminate this License Agreement.
9. EXPORT/GOVERNMENT CONTRACTING.
Customer acknowledges and assumes the risk that shipment of Programs is subject to the export control laws of the United States and the prevailing regulations issued from time to time by the United States Department of Commerce and Department of State (henceforth "U.S. Export Laws"), and that such laws and regulations could delay or preclude delivery of Programs in the future. Customer represents and warrants that it will not transmit, or use the Programs in any country embargoed under the laws of the United States and will not at any time otherwise violate the U.S. Export Laws. Customer hereby agrees and assures ZBE that it will not, directly or indirectly, export or re-export any Programs unless prior written authorization is obtained from ZBE and, if required by applicable law, the United States government. Customer agrees to protect and preserve ZBE proprietary rights to the Programs, including compliance with all laws as may be required to do so. If Customer is a unit or agency of the United States government, Customer agrees to ensure that: (i) the Programs remain subject to the terms and conditions of this License Agreement, which shall be attached in an addendum to the pertinent contract with the government; (ii) that all of the Programs shall be either: (a) classified as "Commercial Computer Software," as used in, and such that the government's rights in the Programs will be no greater than as defined in, one or more of 48 C.F.R. §§ 12.212(b), 227.7202?4, or 1852.227-86(d); or (b) "Restricted Computer Software," as that term is defined in 48 C.F.R. §§ 52.227-19(a), 970.5204-82(a)(5) and 970.5204-83(a)(5), such that the United States government's rights in the Programs will be no greater than those specified in 48 C.F.R. §§ 52.227-19(c)(2), 970.5204-82(f) or 970.5204-83(h), as applicable; and (iii) each copy of the Programs supplied to any unit or agency of United States government will, in addition to the copyright and proprietary notice otherwise required by this License Agreement, have affixed to it a long form restricted rights notice pre-approved in writing by counsel for ZBE, so as to meet requirements of law to protect its status as "Restricted Computer Software," including, if applicable, 48 C.F.R. §§ 52.227-14, 970.5204-82 or 970.5204-83.
10. WARRANTY.
ZBE warrants operation of the Programs in substantial conformity with the documentation provided from time to time for the lesser period of: (i) sixty (60) days for Revisions; and (ii) ninety (90) days for Programs other than Revisions. Such warranty shall be extended to include all contiguously renewed terms of a standard ZBE Service Agreement. During such time as this warranty is in force, ZBE shall use reasonable efforts to correct errors in the Programs that cause deviations from the documentation that substantially impair the operations of the Programs. Should ZBE be unable or unwilling to correct an error that causes such deviations that substantially impair the operation of the Programs, ZBE may, in its sole discretion: (i) replace the Programs with a comparable product, or (ii) upon return, at Customer's expense, of the Programs to ZBE's location in California reimburse the Customer a pro rata amount of the fees paid specifically for the licensing of the Programs, pro rated over the term of the license, up to a maximum of five years, plus a pro rata amount of the most recent service fee paid. ZBE may provide Customer with the same or an updated version of the Programs on new media to substitute for any Programs that have been adversely affected by harmful code, virus or other software defect. In order to make a claim under this warranty, the Customer must return the defective item within ten (10) days following the end of the Warranty Period. Such replacement or reimbursement constitutes complete satisfaction of ZBE'S obligations hereunder and Customer's sole and exclusive remedy. Programs that execute on a central processing unit that is part of a machine or hardware purchased from ZBE shall be conclusively deemed to be licensed for fifty (50%) of the cost of the machine or hardware. The warranty described herein shall not apply if the Programs are damaged or non-conforming due to accident, neglect, misuse, abuse, failure of electrical power or air conditioning, use in incompatible environments, or operation in conjunction or concurrently with products or software other than those recommended from time to time by ZBE. THE WARRANTIES SET FORTH IN THIS SECTIONS DO NOT EXTEND TO THIRD PARTIES OR APPLY TO THE PORTIONS OF THE PROGRAMS, IF ANY, WHICH ARE LICENSED BY ZBE FROM THIRD PARTIES. SUCH PORTIONS ARE PROVIDED "AS IS." SUBJECT TO ANY APPLICABLE LAW THAT PROHIBITS THE FOLLOWING EXCLUSIONS, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE. SOME LOCALITIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR HAVE LEGISLATION THAT IMPOSES CERTAIN STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, SO THE ABOVE EXCLUSION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM LOCALITY TO LOCALITY. IN NO EVENT SHALL ZBE BE LIABLE TO CUSTOMER FOR ANY LOSSES OR DAMAGES, INCLUDING DIRECT DAMAGES, WHETHER BASED ON THEORIES OF TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, IN EXCESS OF THE AMOUNT PAID TO ZBE BY CUSTOMER. ZBE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR TORT DAMAGES (INCLUDING LOST PROFIT, INSTALLATION, OR OTHER EXPENSES) IN ANY EVENT, INCLUDING FOR: (A) ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH ZBE'S PERFORMANCE HEREUNDER, OR THE DELIVERY, SALE, USE OR INABILITY TO USE, OR PERFORMANCE OF THE PROGRAMS PROVIDED HEREUNDER OR ANY OTHER ZBE PRODUCT; (B) ANY CLAIM OR DEMAND ARISING FROM PROGRAMS' DOWN-TIME OR LOSS OF DATA; (C) ANY CLAIM OR DEMAND ARISING FROM ANY BREACH IN THE SECURITY OF THE PROGRAMS, PROTECTION OF DATA OR UNAUTHORIZED ACCESS TO THE PROGRAMS OR DATA; (D) ANY CLAIM OR DEMAND ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE PROGRAMS OR ANY OTHER ZBE PRODUCT BY CUSTOMER OR ITS CUSTOMERS, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM OR DEMAND RELATING TO THE OWNERSHIP OF THE DATA, THE RELEASE OR LOSS OF DATA, AND THE CONTENT OF SUCH DATA; (E) ANY CLAIM OR DEMAND ARISING OUT OF OR IN CONNECTION WITH THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND INFRINGEMENT OF SUCH RIGHTS THROUGH THE USE OF THE PROGRAMS PROVIDED HEREUNDER OR ANY OTHER ZBE PRODUCT; AND (F) ANY CLAIM OR DEMAND ARISING OUT OF OR IN CONNECTION WITH LOSS OF USE OF THE PROGRAMS OR ANY OTHER ZBE PRODUCT, LOSS OF DATA, LOSS OF PROFITS, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE PROGRAMS OR ANY OTHER ZBE PRODUCT, OR ZBE'S PROVISION OF SERVICES OR GOODS, OR OTHER EVENTS RELATING TO THE PROGRAMS, EVEN IF ZBE HAS BEEN SPECIFICALLY ADVISED OF SUCH POSSIBILITY.
11. ERROR CORRECTION.
Software errors ("Bugs") which are discovered during the Warranty Period are subject to the warranty provisions above. After the Warranty Period has expired, Bug fixes may be provided from time to time in periodic maintenance releases, but ZBE is under no obligation to do so. ZBE further reserves the right to schedule the frequency of the maintenance releases and to control which Bugs are fixed during those releases. Customer may request that ZBE give special attention to a particular Bug affecting Customer but, in such cases, it shall be at ZBE's discretion as to whether to fix such Bug, and all work involved must be paid by Customer at ZBE's then current rates for such services.
12. ENTIRETY OF AGREEMENT.
This License Agreement is the entire Agreement as to its subject matter and supersedes all prior Agreements and representations. The English language version of this License Agreement shall be the official text. Any rights and remedies secured by ZBE under the Copyright Laws of the United States, international conventions and treaties, or under the laws of any state or locality, shall be deemed cumulative, and in addition to any rights and remedies arising under this License Agreement. Any provision of Customer's order inconsistent with, or in addition to, the terms and conditions of this License Agreement shall not be binding on ZBE, and ZBE'S failure to object to such provision shall not be construed as acceptance. No modification, waiver, cancellation of any provision of this License Agreement shall be binding unless made in writing and signed by the parties. This License Agreement shall be binding upon and inure to the benefit of the parties, Suppliers, if any, and the parties' respective, permitted successors, assigns, and legal representatives, provided however, that the rights and duties of Customer hereunder with respect to the Programs may not be sold, assigned, sublicensed, or otherwise transferred by it, in whole or in part, without the prior written consent of ZBE. If any provision of this License Agreement is found by a court of competent jurisdiction to be in violation of or unenforceable under any applicable law, such provision shall to such extent be deemed null and void, and the parties shall modify the remainder of this License Agreement so as to carry out the intent of this License Agreement to the extent possible, unless the invalid provision supplied an essential term of this License Agreement that cannot be validly carried out. Each individual executing this License Agreement on behalf of Customer certifies and warrants that s/he has been duly authorized, and indemnifies ZBE, and holds it harmless, from any and all damages, costs, attorneys' fees, and other expenses, if not so authorized.
13. APPLICABLE LAW AND CONSENT TO JURISDICTION.
This Agreement is deemed to have been executed in Santa Barbara County, State of California, and shall be interpreted and governed by the laws of the State of California, without regard to conflicts of law rules, and without regard to the United Nations Convention on the International Sale of Goods. Venue for all purposes on all matters between the parties shall be proper only in the courts located in Santa Barbara, California exclusively. To expedite proceedings, the parties waive any right to trial by jury in any action or proceeding of any kind arising out of or relating to this License Agreement, the Programs, other ZBE products, services or any other matter between them. The parties hereby consent to the exclusive jurisdiction of the above-mentioned courts and further agree to waive any right it may have to assert the doctrine of forum non conveniens or any challenge based on lack of personal jurisdiction. Customer further agrees that the above provisions in this paragraph are mandatory and not permissive in nature.
14. INDEMNIFICATION.
Customer shall indemnify, defend and hold ZBE, its directors, officers, employees, agents, and distributors harmless from any and all claims, actions, suits, procedures, costs, expenses, damages and liabilities, including attorney's fees arising out of, connected with, or resulting from the Programs, including, without limitation, the delivery, possession, use, service and operation of the Programs, the US Export Laws, and claims of copyright holders, Customer's third parties, employees, and independent contractors.
15. ENTIRE AGREEMENT.
In conjunction with the matters considered herein, this Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by any of the parties, either oral or written, of any character or nature binding, except as stated in the original sales agreement, any current service agreement, and this License Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by Customer and the President of ZBE and by no other means. Each party waives their right to claim, contest or assert that this Agreement was modified, canceled, superseded or changed by any oral agreement, course of conduct, waiver or estoppel. No waiver shall be binding on ZBE unless executed in writing by the President of ZBE. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.Once you install, copy, or otherwise use the software, you enter into a legal agreement and will be bound by its terms. If you do not agree to the terms of this Agreement, do not install or use the software. If you have not installed, used or copied the software, you may return it to your place of purchase for a full refund.