Please read the End-User License Agreement and certify that you accept the conditions by selecting the “Agree” checkbox and then the Download button.
SUBSCRIPTION SERVICES AGREEMENT READ THIS AGREEMENT BEFORE INSTALLING THE SOFTWARE. THANK YOU FOR CHOOSING THIS ZAGILE SOFTWARE PRODUCT. BY CLICKING ON THE "I AGREE" BUTTON OR BY DOWNLOADING OR OTHERWISE INSTALLING THE SOFTWARE, YOU ("LICENSEE" OR "YOU") ARE AGREEING TO THIS AGREEMENT. IF OU DO NOT AGREE WITH ALL OF THIS AGREEMENT, PLEASE CONTACT YOUR SALES REPRESENTATIVE. IN THIS AGREEMENT, "ZAGILE" MEANS ZAGILE INCORPORATED. Copyright 2009 ZAGILE INCORPORATED. All Rights Reserved. Warning: This computer program is protected by copyright laws and international treaties. Unauthorized use, duplication or distribution of this program or any portion of it without the express written consent of ZAGILE is strictly prohibited. ALL RIGHTS RESERVED. ZAGILE and Wikidsmart are trademarks of ZAGILE. Any other trademarks are for identification purposes only and are the property of their respective owners. U.S. GOVERNMENT END-USERS: This Software Product and the Related Materials are "commercial items" as that term is defined in 48 C.F.R. 2.101 (October 1995) consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (September 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995), if the licensee hereunder is the U.S. Government or any agency or department thereof, the Software and the Related Materials are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of the Agreement. TERMS AND CONDITIONS 1. Grant of License. Subject to the terms and conditions contained in this Agreement, ZAGILE hereby grants Licensee, beginning on the date Licensee first downloads the ZAGILE Software (the "Effective Date") and during the term specified in Section 9, a non¬-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide license to use, solely for internal business purposes (including use by external users, namely employees, customers, and partners), the object code of the ZAGILE Software. If this is an evaluation-only license, the ZAGILE Software may only be used for evaluation purposes and not in production. The ZAGILE Software may not be distributed to any other person or entity. 2. Proprietary Rights. Licensee acknowledges that ZAGILE controls all right, title and interest in and to the ZAGILE Software and all intellectual property rights relating thereto. The ZAGILE Software is the valuable intellectual property of ZAGILE and constitutes confidential and proprietary information of ZAGILE. ZAGILE does not grant to Licensee any other right or license, either express or implied, in the ZAGILE Software except as specified in this Agreement, and Licensee's use of the ZAGILE Software shall be subject to the restrictions set forth in this Agreement. The Parties expressly acknowledge that "ZAGILE," and "Wikidsmart" are trademarks of ZAGILE. 3. Restrictions on Use. Except as expressly permitted in this Agreement, Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer the ZAGILE Software (except to the extent expressly permitted under applicable law); (ii) provide, lease, lend, use for timesharing or otherwise use or allow others to use the ZAGILE Software to or for the benefit of third parties; (iii) incorporate into or with other hardware or software, or create a derivative work of any part of the ZAGILE Software; (iv) disseminate performance information or analysis from any source relating to the ZAGILE Software; (v) remove any product identification, copyright notice or other proprietary legend from the ZAGILE Software; or (vi) use only the ZAGILE Software product(s) for which a subscription has been purchased and corresponding license key(s) have been issued. 4. Support. "Support" under this Agreement means those services which ZAGILE has agreed to provide under the terms and conditions set forth at http://www.zagile.com/4/buy.html. It is understood and agreed that ZAGILE does not provide support for any modified versions of the ZAGILE Software. 5. Enhancements and Upgrades. During the term of this Agreement, ZAGILE shall provide to Licensee enhancements and upgrades, if any, of the ZAGILE Software it makes generally available, free of additional charge. 6. Export Control. Licensee will comply with all relevant laws and regulations regarding export of ZAGILE Software. Licensee shall indemnify and hold ZAGILE harmless from any claim arising out of a breach of this Section. 7. Payment Terms. Amounts due shall be considered paid when ZAGILE is in receipt of the amount due or upon confirmation of receipt by a bank designated by ZAGILE. All payments hereunder shall be in U.S. dollars. Annual subscription fees are exclusive of, and Customer shall pay for, if applicable: shipping; any sales, use, property, value added or similar taxes; federal, state or local or other charges imposed on or with respect to the ZAGILE Software or its delivery, use or possession; but not including taxes based upon the net income of ZAGILE. For all payments not received within thirty (30) days of the due date, a late payment fee shall accrue daily on such unpaid amounts at the rate of one-and-one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower. ZAGILE shall also be entitled to any reasonable collection costs, including attorneys' fees. 8. Warranty and Liability. ZAGILE expressly warrants that it is the owner or licensee of ZAGILE Software, including any and all copyrights and trade secrets, and has the right and authority to enter into this Agreement and to license ZAGILE Software to Licensee in accordance with the terms herein as of the Effective Date. ZAGILE expressly warrants that it is not aware of any claim that the ZAGILE Software infringes any rights of any third party. ZAGILE expressly warrants that the performance of the rights and obligations set forth under this Agreement will not breach any other agreement or arrangement by which ZAGILE is bound. EXCEPT AS PROVIDED IN THIS SECTION, ALL SOFTWARE LICENSED HEREUNDER IS PROVIDED "AS IS." IN ADDITION, THE FOREGOING WARRANTIES SHALL NOT APPLY IN THE EVENT THAT LICENSEE BREACHES ANY OF THE RESTRICTIONS ON USE OF THE ZAGILE SOFTWARE. The foregoing warranties are exclusive of all other warranties, whether written, oral, express or implied, including but not limited to any warranty of non-infringement of third party rights and the implied warranties of merchantability or fitness for a particular purpose. IN NO EVENT SHALL ZAGILE BE LIABLE TO LICENSEE OR ANY THIRD PARTY OR END USER for any special, indirect, consequential or contingent damages including loss of profits, or any amounts in excess of the fees actually paid to ZAGILE by Licensee (the foregoing being collectively called "DAMAGES") incurred by Licensee or any other third party. Such non-liability for damages shall apply whether in an action based on contract, tort or any other such theory, EVEN IF ZAGILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. Term of Agreement. This Agreement and the licenses granted hereunder shall remain in effect for the specific license term purchased by Licensee, which shall begin on the Effective Date. This Agreement and the licenses granted hereunder may be terminated earlier, as set forth herein. In addition, certain evaluation versions of the ZAGILE Software time-out at the end of the evaluation period. 10. Termination of Agreement. ZAGILE may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement that Licensee fails to cure within thirty (30) days following written notice specifying such breach. Licensee may terminate this Agreement and the licenses granted hereunder upon written notice for any material breach of this Agreement that ZAGILE fails to cure within thirty (30) days following the written notice specifying such breach. Licensee may also terminate this Agreement and the licenses granted hereunder for any reason upon thirty (30) days written notice to ZAGILE. Under no circumstances, however, shall Licensee be entitled to a refund of any license fees. In the event of termination of this Agreement for any cause, all rights granted hereunder automatically revert to the granting Party. In addition, Licensee agrees to immediately uninstall the ZAGILE Software from any of its systems and to return or destroy the ZAGILE Software. 11. No Agency. The Parties are independent contractors. Neither Party is an employee, agent, joint venturer or legal representative of the other Party for any purpose. Neither Party shall have the authority to enter into any legal or equitable obligation for the other Party. Under no circumstances may either Party hold itself out to have agency authority for the other Party. The Parties agree not to make false or misleading statements, claims or representations about the other Party, its products or the relationship between the Parties. 12. Governing Law. This Agreement is in accordance with, and shall be governed by and construed under, the laws of the State of California and applicable United States statutes. Such governance and construction explicitly excludes the State of California’s body of laws governing conflict of laws and the 1980 United Nations Convention on Contracts for the International Sale of Goods. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to this Agreement in any competent jurisdiction. 13. Waiver. The Party entitled to the benefit of any provision of this Agreement may waive said provision. Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized officer of such Party. Such a waiver shall be limited specifically to the extent set forth in said writing. Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any subsequent event. 14. Force Majeure. If by reason of Force Majeure including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder and all acts of God, a Party is unable to perform in whole or in part its obligations as set forth in this Agreement, except for payment obligations, such Party shall not be liable to the other for its failure to perform said obligations. 15. Severability. If the application of any provision or provisions of this Agreement to any particular set of facts or circumstances is held to be invalid or unenforceable by a court of competent jurisdiction, the validity of said provision or provisions to any other particular set of facts or circumstances shall not, in any way, be affected. Such provision or provisions shall be reformed without further action by the Parties to the extent necessary to make such provision or provisions enforceable when applied to that set of facts or circumstances. 16. Affirmative Action/Equal Opportunity Employer. ZAGILE is an Affirmative Action/equal employment opportunity employer who will employ qualified individuals with disabilities and qualified protected veterans. 17. Survival. The following sections shall survive the termination of this Agreement for any cause: 2, 3, 6, 8, and 12. 18. Rules of Construction. As used in this Agreement, all terms used in the singular shall be deemed to include the plural, and vice versa, as the context requires. Descriptive headings are inserted for convenience only and shall not be utilized in interpreting this Agreement. 19. Amendment. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. 20. Entire Agreement. The Parties, and each of them, represent and warrant that this Agreement constitutes the complete and exclusive agreement between the Parties. Said Agreement supersedes all previous or contemporaneous agreements, understandings and representations, written or oral, with respect to the subject matter of this Agreement.