Software License Agreement
Last Updated: May 23, 2012
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS LICENSE BY CLICKING THE "AGREE/ACCEPT" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, RETURN THE ZENGOBI SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND OR, IF THE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK "DISAGREE/DECLINE".
IMPORTANT NOTE: To the extent that this software may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
A. The software, documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the "Zengobi Software") are licensed, not sold, to you by Zengobi, Inc. ("Zengobi") for use only under the terms of this License, and Zengobi reserves all rights not expressly granted to you. The rights granted herein are limited to Zengobi's and its licensors' intellectual property rights in the Zengobi Software and do not include any other patents or intellectual property rights. You own the media on which the Zengobi Software is recorded but Zengobi and/or Zengobi's licensor(s) retain ownership of the Zengobi Software itself. The terms of this License will govern any software upgrades provided by Zengobi that replace and/or supplement the original Zengobi Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
B. Zengobi, at its discretion, may make available future upgrades or updates to the Zengobi Software. Zengobi may provide you any such upgrades and updates that it may release up to, but not including, the next major release of the Zengobi Software, for free. For example, if you originally purchased a license for version 9.0 of the Zengobi Software, Zengobi may provide you for free any software upgrades or updates it might release (e.g. version 9.1 or 9.2) up to, but not including, version 10.0 of the Zengobi Software. After the next major release of the Zengobi Software, Zengobi may also at its discretion continue to provide minor updates and enhancements to the Zengobi Software. Upgrades and updates, if any, may not necessarily include all existing software features and may, at Zengobi’s discretion, be provided with or without charge. The terms of this License will govern any software upgrades or updates provided by Zengobi that replace and/or supplement the original Zengobi Software product, unless such upgrade or update is accompanied by a separate license in which case the terms of that license will govern.
2. Permitted License Uses and Restrictions. Zengobi grants you a non-exclusive license to use the Zengobi Software in the manner set forth below.
A. Trial License. If you are using the trial version of the Zengobi Software, this License allows you to install and use the Zengobi Software for the sole purpose of evaluating the Zengobi Software. The trial version of the Zengobi Software expires twenty-five (25) days after the date you first launch the Zengobi Software.
B. Personal Use. If you are an individual acting in your personal capacity, you may download and use the Zengobi Software for personal, non-commercial use on any Apple-branded products running Mac OS X (“Mac Computer”) that you own or control.
C. Commercial or Educational Use. If you are a commercial enterprise or educational institution, you may download the Zengobi Software for use by either (a) a single individual on each of the Mac Computer(s) used by that individual that you own or control or (b) multiple individuals on a single shared Mac Computer that you own or control. For example, a single employee may use the Zengobi Software on both the employee’s desktop Mac Computer and laptop Mac Computer, or multiple students may serially use the Zengobi Software on a single Mac Computer located at a resource center or library. For the sake of clarity, each Mac Computer used serially by multiple users requires a separate license.
D. Server Use. You may install one copy of the Zengobi Software on one computer file server within your internal network for the purpose of using the Zengobi Software through commands, data or instructions (e.g., scripts) from another computer within the same internal network, provided that the total number of users (not the concurrent number of users) that are permitted to use the Zengobi Software on such computer file server does not exceed either (i) the permitted number indicated under a valid volume license granted by Zengobi; or (ii) the number of purchased licenses.
E. Backup Copy. You may make a reasonable number of backup copies of the Zengobi Software, provided your backup copies are not installed or used for other than archival purposes.
F. Academic Restrictions. If the Zengobi Software package has an academic label or if you acquired the Zengobi Software at an academic discount, you must be an Eligible Educational End User to use the Zengobi Software. "Eligible Educational End Users" means students, faculty, staff and administration attending and/or working at an educational institutional facility (i.e., college campus, public or private K-12 schools).
G. Other Restrictions.
(i) You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License and the "Usage Rules"), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Zengobi Software or any services provided by the Zengobi Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Zengobi Software). Any attempt to do so is a violation of the rights of Zengobi and its licensors of the Zengobi Software.
3. Transfer. You may not rent, lease, lend or sublicense the Zengobi Software. You may, however, make a one-time permanent transfer of all of your license rights to the Zengobi Software to another party, provided that: (a) the transfer must include all of the Zengobi Software, including all its component parts, original media, printed materials, license keys, and this License; (b) you do not retain any copies of the Zengobi Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Zengobi Software reads and agrees to accept the terms and conditions of this License.
NFR (Not for Resale) Copies: Notwithstanding other sections of this License, Zengobi Software labeled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
Academic Copies: Notwithstanding other sections of this License, if the Zengobi Software package has an academic label or if you acquired the Zengobi Software at an academic discount, then it may not be resold or transferred.
4. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from Zengobi if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Zengobi Software and destroy all copies, full or partial, of the Zengobi Software.
5. Services and Third Party Materials.
(a) The Zengobi Software enables access to other Zengobi and third party services and web sites (collectively and individually, "Services"). Such services may not be available in all languages or in all countries. Use of the Services requires Internet access and use of certain Services requires you to accept additional terms.
(b) You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Zengobi shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
(c) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Zengobi is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Zengobi, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
(d) You agree that the Services contain proprietary content, information and material that is owned by Zengobi and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Zengobi. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Zengobi is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
(e) In addition, Services and Third Party Materials that may be accessed from, displayed on or linked to from the Zengobi Software are not available in all languages or in all countries. Zengobi makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Zengobi and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Zengobi be liable for the removal of or disabling of access to any such Services. Zengobi may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
6. Limited Warranty on Media. Zengobi warrants the media on which the Zengobi Software is recorded and delivered by Zengobi to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at Zengobi’s option, a refund of the purchase price of the product containing the Zengobi Software or replacement of the Zengobi Software which is returned to Zengobi or a Zengobi authorized representative with a copy of the receipt. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
7. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE ZENGOBI SOFTWARE AND ANY RELATED SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ZENGOBI SOFTWARE AND RELATED SERVICES ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ZENGOBI AND ZENGOBI'S LICENSORS (COLLECTIVELY REFERRED TO AS "ZENGOBI" FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE ZENGOBI SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/ OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ZENGOBI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE ZENGOBI SOFTWARE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN THE ZENGOBI SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE ZENGOBI SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, THAT THE ZENGOBI SOFTWARE WILL BE COMPATIBLE WITH THIRD PARTY SOFTWARE OR SERVICES, OR THAT DEFECTS IN THE ZENGOBI SOFTWARE OR SERVICES WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT THE ZENGOBI SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE ZENGOBI SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZENGOBI OR AN ZENGOBI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE ZENGOBI SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ZENGOBI BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE ZENGOBI SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF ZENGOBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Zengobi's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Pre-release Software: If the Zengobi Software is pre-commercial release or beta software ("Pre-release Software"), then this Section applies. The Pre-release Software is a pre-release version, does not represent final product from Zengobi, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Zengobi may never commercially release the Pre-release Software. If you received the Pre-release Software pursuant to a separate agreement, such as the Zengobi Mutual Nondisclosure Agreement, your use of the Pre-release Software is also governed by such agreement. You will return or destroy all copies of Pre-release Software upon request by Zengobi or upon Zengobi's commercial release of such Software. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK.
9. Export Control. You may not use or otherwise export or reexport the Zengobi Software except as authorized by United States law and the laws of the jurisdiction in which the Zengobi Software was obtained. In particular, but without limitation, the Zengobi Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Zengobi Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
10. Government End Users. The Zengobi Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
11. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of North Carolina, as applied to agreements entered into and to be performed entirely within North Carolina between North Carolina residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
12. Complete Agreement; Governing Language. This License constitutes the entire agreement between the parties with respect to the use of the Zengobi Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Zengobi. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.
13. Third Party Acknowledgements. Portions of the Zengobi Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the "About Box" for the Zengobi Software, and your use of such material is governed by their respective terms.