End User License Agreement - zMaxOneClick Help

End User License Agreement

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IMPORTANT – READ CAREFULLY: This End-User License Agreement ("AGREEMENT") is a legal contract (AGREEMENT) between either an individual or a single business entity (“You / Your”) and ZOOM Integrated Products, Inc. (“ZOOM”) for the software product identified below. BY ACCEPTING THE LICENSE AGREEMENT AND/OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SOFTWARE LICENSE AGREEMENT, LICENSE AND RESTRICTIONS, OTHER LICENSE RESTRICTIONS AND LIMITATIONS, TERM AND TERMINATION, LIMITED WARRANTY, DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND DAMAGES, U.S. GOVERNMENT, EXPORT RESTRICTIONS AND OTHER PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT “NO” AND/OR “I DO NOT AGREE” WHEN PROMPTED TO INSTALL THE SOFTWARE AND/OR DO NOT INSTALL OR USE THE SOFTWARE.

SOFTWARE LICENSE AGREEMENT
This Agreement covers the zMaxOneClick™ computer software (SOFTWARE) along with all other supplied component programs, data files, updates or maintenance releases, administration program and related programs, printed materials, and "online" or electronic documentation collectively supplied on either the distribution media or obtained via other digital transmission such as Internet download. SOFTWARE includes commercial grade third-party software components. These "Third-Party Software Components" are defined as any software element created and or owned by a third party embedded within the SOFTWARE. Your use of the SOFTWARE may be subject to Your acceptance of these separate third party software license agreements. A "USER" is any person or person who uses the SOFTWARE. Only You, and persons under Your direction or control (employees), are permitted to use the SOFTWARE under this AGREEMENT. You shall use reasonable efforts to ensure that all the USERS shall abide by the terms of this AGREEMENT. If You become aware that the SOFTWARE is not being used in a manner authorized by this AGREEMENT, You shall promptly cure the breach of this AGREEMENT and notify ZOOM in writing. ZOOM Representatives include, but are not limited to employees, Support Services associates, affiliates, licensors, third-party component software provider, supplies, or service providers. SOFTWARE is licensed under a Concurrent Access License (see the license detail below). "Concurrent Access" means simultaneous access to the SOFTWARE by logging into SOFTWARE (via the SOFTWARE database) regardless if the USER is actively using the SOFTWARE or just logged in and not actively using the SOFTWARE. The cost of Concurrent Access License does not include the cost of ZOOM Support Services. ZOOM Support Services are available at an additional cost pursuant to the separate Annual Support Agreement. License Agreement Acceptance. This is a legal contract between You, and users (employees) under Your control, and ZOOM. By opening, installing and/or using the SOFTWARE You, and the users under Your control, agree to be bound by the terms of this AGREEMENT. Do not use the SOFTWARE until You have carefully read this AGREEMENT. If You do not agree to these terms, promptly return all SOFTWARE distributed media (disks, written materials and packaging) or remove SOFTWARE digital transmission from all computers for a full refund. License Agreement Changes. ZOOM reserves the right to change the terms and conditions of this AGREEMENT at any time. If You object to the change, You must submit Your written objection to ZOOM within 30 days of the date of notification. You may not modify this AGREEMENT. This AGREEMENT is not modified except in a writing that specifically references this AGREEMENT and is duly signed by an authorized representative of ZOOM. If You object to the changes made by ZOOM, You must notify ZOOM in writing of Your objection. If You fail to object within 30 days, this will indicate that You accept and agree to the change. ZOOM will work with You to try to reach mutually acceptable AGREEMENT. If this is not possible, either party may immediately terminate this AGREEMENT. Notices. Any notices or changes related to this AGREEMENT will be provided in one of the following manners: by posting on the ZOOM website, within future versions of the SOFTWARE, by facsimile, or by email. You are bound by any changes or revisions, so to ensure You are notified of the latest version You should therefore periodically visit the ZOOM website to review the then current AGREEMENT and/or review the then current AGREEMENT within the latest version of the SOFTWARE. The date of posting on the ZOOM website shall be deemed the date on which such notice is given. Any notices that are sent by facsimile or email will be directed to the contact information listed in the sales order. Correspondence and notices should be sent to (to be determined).

LICENSE AND RESTRICTIONS
Concurrent Access License. SOFTWARE is never sold, only a Concurrent Access license to use SOFTWARE is sold. Upon Your acceptance of this AGREEMENT and in return for the payment of the requisite license fee, You, and USERS under Your control, are granted a limited, non exclusive, royalty –free, fully paid-up license to use SOFTWARE up to the number of Concurrent Access licenses purchased and paid for by You. This limited and non-exclusive license gives You the right to: 1) install SOFTWARE on Your computer and on an unlimited number of computers for employees of Your company solely for the purpose of allowing "Concurrent Access" (see definition) to SOFTWARE, 2) install a copy of SOFTWARE database on Server or other centralized computer for network access by USERS, 3) make copies, up to the number of Concurrent Access licenses You have purchased, of the help files and other printed and/or electronic SOFTWARE documentation, 4) make a second copy of the SOFTWARE for archival purposes. You may receive the SOFTWARE on more than one medium (e.g., by electronic distribution or distributed media). You may use only the number of copies of the SOFTWARE for which You have paid the applicable License Fee regardless of the number or type of media You receive containing the SOFTWARE. Concurrent Access Enforcement. By Your acceptance of this AGREEMENT, You are acknowledging that You understand that SOFTWARE enforces concurrent access licensing and will limit the number of simultaneous users to the number of licenses You have purchased. Registration Timeout. You must register the SOFTWARE with ZOOM within fifteen (15) days from the first date you launch the SOFTWARE or the SOFTWARE will timeout and cease to function.

OTHER LICENSE RESTRICTIONS AND LIMITATIONS
You may not use or copy the SOFTWARE or any copy, portion or modification of the SOFTWARE, in whole or in part, except as expressly provided for in this AGREEMENT. The structure, sequence, and organization of the SOFTWARE both the source code and the object code, are valuable trade secrets owned by ZOOM or its licensors. You may not decompile, reverse engineer, disassemble, or change the features or functions of the program which disables any functionality or limits the use of the SOFTWARE. You may use the SOFTWARE only as expressly permitted herein. Assignment and Transfer. You may not assign, give, encumber, or otherwise transfer this AGREEMENT, SOFTWARE, a copy of SOFTWARE (in whole or in part) to any third party without the prior written consent of ZOOM, which consent may be withheld by ZOOM in its sole discretion and may be subject to the payment of a License Fee by the transferee. You may not rent, lease, or lend the SOFTWARE. You may not resell for profit, or distribute the SOFTWARE. You may not sublicense the SOFTWARE or allow any third party to use or access the SOFTWARE including, without limitation, on a time-sharing basis or on an application services provider basis. If You do, (a) this AGREEMENT and the license under this AGREEMENT shall immediately and automatically terminate without notice or refund of any License Fees; and (b) any such assignment, gift, encumbrance, or transfer shall be null and void.

TERM AND TERMINATION
The term of this AGREEMENT shall be perpetual, unless and until the AGREEMENT is terminated in accordance with the terms of this AGREEMENT. License Fee Payment. You shall pay the License Fee prior to using the SOFTWARE, unless ZOOM has agreed to accept delayed payment, payment in installments or has provided SOFTWARE on a trial basis. Non-Payment Timeout. In the case of non-payment or past due payment, as well as in the case of all SOFTWARE on trial, ZOOM may set an expiration date which will cause the SOFTWARE to stop functioning until complete payment of the License Fee is made. ZOOM will disable the expiration date upon complete payment of the License Fee. If You breach this AGREEMENT including failing to make any payment when due, ZOOM may declare all amounts immediately due and payable. Termination - You may terminate this AGREEMENT at any time by providing written notice to ZOOM. If You breach any provision of this AGREEMENT, ZOOM may, at its sole discretion and without notice, immediately terminate this AGREEMENT. ZOOM may give you written notice requiring You to cure the breach of this AGREEMENT. If ZOOM gives you written notice and You fail to cure the breach within days specified days given in the written notice of ZOOM may terminate this AGREEMENT without further notice. The right to terminate this AGREEMENT is in addition to any other rights and remedies provided under this AGREEMENT or otherwise at law or equity.

LIMITED WARRANTY
The “usual and customary” method the SOFTWARE – new installation and upgrades – is delivered is via digital transmission (download) from the ZOOM website. If the download - and therefore the SOFTWARE delivery fails - You may be instructed to download SOFTWARE again or may sent the SOFTWARE on the distributed media (CD and/or other media). In some cases, upon Your request or at ZOOM’s sole discretion (e.g. when high internet connection is not available), ZOOM may deliver the SOFTWARE via distributed media (CD or other media). If SOFTWARE is delivered via distributed media ZOOM warrants the media on which the SOFTWARE is delivered to be free from defects in materials and workmanship under normal use for ninety (90) days from the date You receive them. ZOOM's liability and Your sole remedy under this AGREEMENT shall be limited to either, at ZOOM option, (a) return of the price paid (if any) for the SOFTWARE, or (b) repair or replacement of the SOFTWARE via either digital transmission or distributed media, that does not meet this Limited Warranty and that is returned to ZOOM. You will receive the remedy elected by ZOOM without charge, except that You may be responsible for any expenses You may incur (e.g. cost of shipping the SOFTWARE to ZOOM).

DISCLAIMER OF WARRANTIES
Except for the limited warranty, listed above, and to the maximum extent permitted by applicable law, ZOOM and its suppliers provide the SOFTWARE and Support Services (if any) “as-is” and with all faults. Due to the continual development of new techniques for intruding upon and attacking networks, ZOOM does not warrant that SOFTWARE or any equipment, system or network on which the SOFTWARE is used will be free of vulnerability to intrusion or attack. in addition, The SOFTWARE is inherently complex, so ZOOM does not warrant that the operation of the SOFTWARE will be completely free of errors, bugs, or viruses or that You will have uninterrupted use, quite enjoyment or quite possession. ZOOM does not warrant the conditions of merchantability, of fitness for a particular purpose, of accuracy, of completeness, of responses of results, of workmanlike effort, that the features and functions will meet Your requirements or that the SOFTWARE will operate in the combinations that You may select for use. ZOOM does not warrant that the data provided in the SOFTWARE’s estimating data files bear any relation to actual material or labor costs incurred by You. The supplied material and labor costs are merely for Your guidance. You are required to verify the accuracy and suitability of the estimating data and to update the data as your cost and/or prices change. It is your responsibility to test, verify and compare the data produced by the SOFTWARE estimate to Your existing estimating system to ensure accuracy and translation of data from your existing estimating system into SOFTWARE before using the software to provide estimates that you provide to your clients. ZOOM does not warrant that the ZOOM Support Services will solve Your problems or be accurate, or that ZOOM Support Services provided via remote control session will not cause other problems. No oral or written information, advice, or assistance given by ZOOM or a ZOOM representative as part of the ZOOM Support Services shall create a warranty, additional liability, or in any way increase the scope of this Agreement. Some States do not allow the exclusion of implied warranties, so the above exclusion may not apply to You. This warranty gives You specific legal rights, and you may have other rights as well which vary from State to State.

LIMITATION OF LIABILITY AND DAMAGES
The entire liability of ZOOM and its representatives is limited to the amount paid by You for the SOFTWARE and any related services. In no event shall ZOOM or it’s representatives liability to You, whether in contract, tort (including negligence), exceed the price paid by You for the SOFTWARE and related services. In no event are ZOOM or its representatives liable for any special, indirect, consequential, incidental, or punitive damages (including, but not limited to: damages for loss of business, loss of business information, business interruption, profits, data or any other pecuniary loss) however caused, regardless of the theory of liability – whether based on breach of warranty, breach of contract, product liability, tort (including negligence) or otherwise arising out of the use or inability to use SOFTWARE even if ZOOM or its representatives have been advised of the possibility or probability of such damages and/or even if proposed remedy has failed. These limitations of damages are an essential element of the basis of this AGREEMENT between ZOOM and YOU and ZOOM would not provide the SOFTWARE to You without your agreement to these limitations. These limitations shall apply even if the above-stated warranty fails of its essential purpose. ZOOM is not responsible or liable for any errors in the data used in the SOFTWARE, for any errors in the transfer of the data to computer file form, for not keeping the data file up to date, or for any corruption of any databases with which You use the SOFTWARE. ZOOM strongly advises that You verify and backup Your work. You assume the entire risk as to the results and performance of the SOFTWARE, backing up Your data (database) and the loss of Your data. Because some States or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not apply to You.

U.S. GOVERNMENT
SOFTWARE and SOFTWARE documentation are commercial in nature. The SOFTWARE and associated SOFTWARE documentation qualify as "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. Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to Government end user, or, if this AGREEMENT is direct Government end user will acquire, the SOFTWARE and SOFTWARE documentation with only those rights set forth herein that apply to non-governmental customers. Use of this SOFTWARE and SOFTWARE documentation constitutes agreement by the government entity that the computer SOFTWARE and computer SOFTWARE documentation is commercial, and constitutes acceptance of the rights and restrictions herein.

EXPORT RESTRICTIONS
You acknowledge that the SOFTWARE is of U.S. origin. You acknowledge and agree to comply with all applicable international and national laws that apply to the SOFTWARE, including the restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations ("the Acts"), as well as end-user, end-use and destination restrictions issued by U.S. and other governments.

OTHER PROVISIONS
Entire Agreement. This AGREEMENT constitutes the entire AGREEMENT and understanding between You and ZOOM relating to Your use of the SOFTWARE. Any representation, statement, or warranty not expressly contained in this AGREEMENT shall not be enforceable by the parties. ZOOM representatives, including Support Services Affiliates, are not authorized to make verbal or written modifications or additions to this AGREEMENT so You should not rely on any such representations.

Provisions Severable. The provisions of this AGREEMENT are severable. If any provision is held to be invalid, unenforceable, or void, the remaining provisions shall not as a result be invalidated.

Rights Reserved - All rights not expressly granted to You in this AGREEMENT are expressly reserved to ZOOM.

Intellectual Property Rights. ZOOM represents and warrants that ZOOM has the right to grant the licenses set forth in this AGREEMENT, and has all Intellectual Property Rights in the SOFTWARE and documentation.

Submissions. Should You decide to transmit to ZOOM, by any means or by any media, any materials or other information (including, without limitation, ideas, concepts, or techniques for new or improved services and products), as information, feedback, data, questions, comments, suggestions, or the like, You agree such submissions are unrestricted and non-confidential and You automatically grant ZOOM and its assigns a nonexclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.

Governing Law and Jurisdiction. The laws of the State of California govern this AGREEMENT. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the State of California, County of Orange.

Audit. You agree to permit ZOOM representatives access to Your premises to audit Your compliance with this AGREEMENT, if ZOOM deems it reasonably necessary. Any information exchanged will be subject to provisions of Proprietary Information section below.

Proprietary Information. Each party will regard any information provided to it by the other party as proprietary or confidential (“Proprietary Information”) and each party will protect the confidentiality of the other party’s Proprietary Information in the same manner as it protects its own valuable proprietary or confidential information. You expressly agree that the SOFTWARE and documentation are the Proprietary Information of ZOOM. Each party agrees, for itself and its agents and employees, to protect the confidentiality of any proprietary information of third parties in its possession and accepts responsibility for any breach of this AGREEMENT by its agents or employees. Information will not be deemed Proprietary Information hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly, other than from a source having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise publicly available, except through a breach of this AGREEMENT by the receiving party; or (d) is independently developed by the receiving party. The receiving party may disclose Proprietary Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

Logos and Trademarks – ZOOM, zMaxOneClick and the respective logos are trademarks of ZOOM Integrated Products, Inc. in the United States. Other parties' trademarks or service marks are the property of their respective owners and should be treated as such.

ZOOM Integrated Products, Inc.