License Agreement

To complete the download process, please read the following legal agreement. Once you have read the agreement, either Accept or Decline it.

EPHOX SOFTWARE EVALUATION LICENSE AGREEMENT NOTICE TO USER: THIS EPHOX SOFTWARE EVALUATION LICENSE AGREEMENT ("SELA") GOVERNS YOUR USE OF THE EPHOX SOFTWARE ACCOMPANYING IT. BEFORE CLICKING "ACCEPT" PLEASE CAREFULLY READ THIS SELA, WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ("LICENSEE", "YOU" OR "YOUR") ARE ACQUIRING A LICENSE TO USE THE ACCOMPANYING EPHOX SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SELA, PLEASE DO NOT CLICK "ACCEPT". BY CLICKING ON "ACCEPT" YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS SELA AND YOU WILL BE ACQUIRING A LICENSE TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS SELA. NOTWITHSTANDING THE FOREGOING, IF YOU RECEIVED THE SOFTWARE AS PART OF A NEGOTIATED LICENSE AGREEMENT WITH EPHOX, THE TERMS AND CONDITIONS OF SUCH NEGOTIATED LICENSE AGREEMENT SHALL SUPERSEDE THE TERMS AND CONDITIONS OF THIS SELA TO THE EXTENT THEY ARE INCONSISTENT. IN THE EVENT THAT A SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY USES OR INSTALLS THE SOFTWARE ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF AND YOU WILL BE DEEMED TO HAVE ACCEPTED ALL OF THE TERMS AND CONDITIONS OF THIS SELA AS IF YOU HAD USED OR INSTALLED THE SOFTWARE. NOTICE TO SYSTEM INTEGRATORS, CONSULTANTS, CONTRACTORS AND OTHER PARTIES WHO DO NOT INTEND TO BE END USERS OF THE SOFTWARE: IF YOU USE OR INSTALL THE SOFTWARE AS AN AGENT ACTING ON BEHALF OF THE LICENSEE, THEN, UNLESS YOU HAVE ENTERED INTO A SEPARATE AGREEMENT WITH EPHOX, (I) YOU AGREE TO DELIVER THIS SELA TO THE LICENSEE PRIOR TO PROVIDING THE LICENSEE ACCESS TO THE SOFTWARE, AND (II) YOU AGREE THAT YOU WILL NOT RETAIN ANY COPIES OF THE EPHOX SOFTWARE. OTHERWISE, YOU WILL BE DEEMED TO BE THE USER OF THE SOFTWARE AND BOUND BY THE TERMS AND CONDITIONS OF THIS SELA. THIS SELA PERMITS YOU TO USE THE SOFTWARE ONLY FOR EVALUATION PURPOSES AND DOES NOT CONSTITUTE A LICENSE FOR USE BEYOND THE EVALUATION PERIOD. AN EPHOX SOFTWARE END USER LICENSE AGREEMENT MUST BE OBTAINED FROM EPHOX BEFORE USE IS PERMITTED FOR PRODUCTION PURPOSES. SUCH A LICENSE MAY BE OBTAINED BY CONTACTING SALES@EPHOX.COM. 1. Definitions "Effective Date" means the date that you downloaded the Software. "Ephox" means Ephox Corporation, a Delaware Corporation, of Suite 130, 1670 South Amphlett Blvd, San Mateo, CA 94402, United States of America. "Software" means (a) all the contents of the files with which this SELA is provided, including but not limited to (i) Ephox or third party computer information or software and (ii) related explanatory written materials or files ("Documentation"); and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Ephox (collectively, "Updates"). "Technical Support" means reasonable technical support (as more specifically set forth in Section 5) for the Software. "Updates" means major upgrades, minor upgrades, modified versions and additions to the Software. "Use" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation and the terms and conditions of this SELA. "User" means any and all (i.e. non-concurrent) natural persons (i.e., not a corporation or other legal entity) who are authorized by you to access and use the Software for your own internal business processes. 2. Grant of License and Restrictions 2.1 Ephox grants you a limited, non-exclusive and non-transferable license to use the Ephox Software subject to the terms and conditions of this SELA. Ephox shall at all times retain ownership of all Ephox Software including any documentation and any copies thereof. 2.2 You acknowledge that the Evaluation Software functions for a limited period of time (the "Evaluation Period"). Ephox is licensing the software on an "as is" basis, solely as an evaluation model. The Evaluation Software will terminate operations after a designated period of time (e.g. 30 days) following installation (the "Time Out Date"). Upon such Time Out Date, the license hereunder shall be terminated, unless extended by Ephox. 2.3 Licensee is solely responsible for determining the appropriateness of using the Ephox Software and assumes all risks and costs of program errors, compliance with applicable laws, damage to or loss of data, programs or equipment, and unavailability or interruption of operations. 2.4 Ephox disclaims any warranty or liability obligations to you of any kind. Where legal liability cannot be excluded, but it may be limited, Ephox's liability and that of its suppliers shall be limited to the sum of fifty dollars (U.S. $50) in total. 2.5 Restrictions. You agree that you will not yourself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, sublicense, encumber or otherwise transfer any right in any portion of the Ephox Software or documentation; (b) decompile, disassemble, or reverse engineer any portion of the Ephox Software or attempt to discover any source code or underlying ideas or algorithms of any Ephox Software; (c) create any derivative work (as defined in the United States copyright Act of 1976, Title 17 USC Section 101 et. Seq.) based on the Ephox Software; (d) use the Ephox Software to provide direct processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a "service bureau" basis or otherwise use or allow others to use the Ephox Software for the benefit of any third party; (e) provide, disclose, divulge or make available to, or permit use of the Ephox Software by persons other than your employees who are subject to confidentiality obligations; (f) prevent the software licensing information contained in the 'About EditLive!' toolbar item from being displayed to any user of the Ephox software. 2.6 No Other Rights Granted. Except as expressly set forth herein, Ephox grants and you receive no other rights or licenses to the Ephox Software, derivative works (as defined in the United States Copyright Act of 1976, Title 17 USC Section 101 et. Seq.) or any intellectual property rights related thereto, whether by implication, estoppel or otherwise. 3. Pre-release Software Additional Terms 3.1 If the Ephox Software accompanying this SELA is pre-commercial release Software ("Pre-release Software"), then the following Section applies. 3.2 You acknowledge that the Software is a pre-release version, does not represent final product from Ephox, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to you "as is", and Ephox disclaims any warranty or liability obligations to you of any kind. Where legally liability cannot be excluded, but it may be limited, Ephox's liability and that of its suppliers shall be limited to the sum of fifty dollars (U.S. $50) in total. 3.3 You acknowledge that Ephox has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that Ephox has no express or implied obligation to you to announce or introduce the Pre-release Software and that Ephox may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software is done entirely at your own risk. During the term of this SELA, if requested by Ephox, you will provide feedback to Ephox regarding testing and use of the Pre-release Software, including error or bug reports. 3.4 Upon receipt of a later unreleased version of the Pre-release Software or release by Ephox of a publicly released commercial version of the Software, whether as a stand-alone product or as a part of a larger product, you agree to abide by the terms and conditions of the SELA for any such later versions of the Pre-release Software. 4. Term and Termination 4.1 This SELA commences on the Effective Date and will remain in force until it is terminated (as set forth herein). Your rights under this SELA will terminate automatically without notice from Ephox if: (a) you fail to comply with any term(s) of this SELA. Upon termination, you agree to destroy all copies, full or partial, of the Software. 5. Technical Support 5.1 The Licensee will be entitled to receive free technical support for problems in the operation of the Ephox Software during the Evaluation Period. 5.2 Ephox will provide you with access to the Ephox Online Support Center ("Support Center") located at www.ephox.com. The Support Center will provide access to downloads, documentation, community forums and a Web-based support form to submit a support case. 5.3 Ephox's obligation to provide technical support is conditioned upon the following: (a) you make reasonable efforts to solve the problem after consulting with Ephox; (b) you provide Ephox with sufficient information and resources to correct the problem either at Ephox's offices or via remote access to your site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; (c) you promptly install all Updates; and (d) you procure, install and maintain all equipment necessary to operate the Ephox Software. 5.4 This SELA does not extend to the operation of third party software and Ephox will not provide you with generic consultation, assistance, or advice. 6. Evaluation Feedback 6.1 Licensee agrees to provide reasonable feedback related to the performance and usability of the Ephox Software. Such feedback shall include the usability of the Ephox Software, bug reports, test results, problems or deficiencies encountered by the Licensee while using the Ephox Software, suggested solutions to such problems or deficiencies, and recommended actions for modification of the Ephox Software. The feedback shall be provided to Ephox by email to support@ephox.com. 6.2 Licensee agrees that any information, feedback and/or materials Licensee provides to Ephox may be used by Ephox for any purpose and in any manner during the term of, or after termination or expiration of, this SELA. 7. Audit 7.1 Upon Ephox's reasonable belief that any term of this SELA has been violated, Licensee agrees to allow an independent third party to inspect Licensee's site, books and records to determine whether Licensee has complied with the terms of this SELA. The third party will be chosen by Ephox and approved by Licensee, whose approval must not be unreasonably withheld. The reviews will occur at mutually agreeable times during normal business hours. The third party will be instructed to keep all information learned strictly confidential except as it relates to breaches of this SELA. If such an audit discloses a violation of this SELA Licensee agrees to pay the cost of the audit plus interest on the deficiency from the time due until paid at the lesser of eighteen percent per annum or the maximum allowed by law. 8. Disclaimer XECEPT AS EXPRESSLY SET FORTH IN SECTION 9 NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE SOFTWARE OR SERVICES PROVIDED HEREIN. EPHOX SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. EPHOX SPECIFICALLY DISCLAIMS ANY REPRESENTATION AND WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR WILL FUNCTION UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SOFTWARE CAN OR WILL BE CORRECTED, THAT ANY SUCH CORRECTION CAN OR WILL BE MADE IN A TIMELY MANNER, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH YOU MAY SELECT FOR YOUR USE, WILL PRODUCE THE RESULTS YOU DESIRE, OR THAT THE SOFTWARE FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. 9. Limitation of Liability EPHOX'S TOTAL LIABILITY UNDER THIS SELA OR FOR BREACH OF THIS SELA SHALL BE LIMITED TO FIFTY DOLLARS (US $50). IN NO EVENT SHALL EPHOX BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, EVEN IF EPHOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EPHOX BE LIABLE FOR FINES OR PENALTIES IMPOSED ON YOU. FURTHERMORE, EPHOX DISCLAIMS ANY LIABILITY FOR LOSS OF OR INACCURACY OF YOUR DATA OR THE DATA MAINTAINED BY YOU ON BEHALF OF OTHERS. EPHOX ALSO DISCLAIMS LIABILITY OR RESPONSIBILITY FOR VIOLATIONS OF APPLICABLE PRIVACY LAWS AND REGULATIONS, OR FOR BREACHES OF SECURITY OF HARDWARE, SOFTWARE OR SYSTEMS FOR WHICH IT IS HEREBY AGREED THAT YOU SHALL HAVE SOLE AND EXCLUSIVE RESPONSIBILITY. YOU AGREE THAT EPHOX WILL NOT BE LIABLE FOR LOSS OF OR DAMAGE TO GOODWILL OR "COSTS OF COVER" (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES) WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE OF SOFTWARE PROVIDED IN CONNECTION WITH THIS SELA WHETHER SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, INTENTIONAL CONDUCT, EQUITY OR PURSUANT TO SOME OTHER THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY, WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN TO OR WAS FORESEEABLE BY EPHOX AND WHETHER SUCH DAMAGES ARE ASSERTED BY YOU OR SOME OTHER PARTY. YOU AGREE TO ASSUME THE RESPONSIBILITY FOR INSURING AGAINST OR OTHERWISE BEARING THE RISK OF DAMAGES IN EXCESS OF THE LIABILITY OF EPHOX. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE INTENDED TO LIMIT EPHOX'S LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THESE TERMS AND CONDITIONS, AND THE SOFTWARE PROVIDED IN CONNECTION WITH THE SELA OR THE TRANSACTIONS CONTEMPLATED BY THE TERMS AND CONDITIONS OF SAID SELA, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING. YOU AGREE TO USE REASONABLE EFFORTS TO MITIGATE ANY DAMAGES SUSTAINED BY YOU PURSUANT TO OR IN CONNECTION WITH THE USE OF OR YOUR INABILITY TO USE THE SOFTWARE PROVIDED IN CONNECTION WITH THIS SELA. NOTWITHSTANDING THE FOREGOING, THE DISCLAIMER OF WARRANTIES AND/OR THE DISCLAIMER AND/OR LIMITATION OF DAMAGES WILL NOT BE DEEMED TO DISCLAIM LIABILITY SPECIFICALLY IMPOSED ON EPHOX BY STATUTE OR REGULATION, TO THE EXTENT SUCH LIABILITY CANNOT BE WAIVED OR DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE DISCLAIMERS OR LIMITATIONS SET FORTH HEREIN MAY NOT FULLY APPLY TO YOU. TO THE EXTENT THAT THE DISCLAIMERS AND/OR LIMITATIONS SET FORTH HEREIN ARE NOT FULLY ENFORCEABLE UNDER APPLICABLE LAW, YOU MAY HAVE OTHER LEGAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. 10. Remedies for Infringement In the event that Ephox reasonably believes that the use of the Software is likely to be enjoined, or in the event Ephox reasonably believes that the Software may be subject to an infringement claim, Ephox may, at its opinion, either: (1) substitute substantially equivalent non-infringing Software; (2) modify the infringing item so that it no longer infringes but remains substantially equivalent; (3) if none of the foregoing is commercially feasible, Ephox may terminate the license granted hereunder. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND. 11. General 11.1 Assignment Neither this SELA nor any rights under this SELA may be assigned or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Ephox, which shall not be unreasonably withheld. Subject to the foregoing, this SELA will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Notwithstanding the foregoing, no transfer or assignment of your rights hereunder shall be effective unless and until the purported assignee agrees in writing to be bound by all of your obligations hereunder. 11.2 Waiver A party's failure to act under this SELA shall not indicate a waiver of the party's rights under this SELA. No waiver of any provision of this SELA shall be valid unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this SELA or the waiver by either party of any breach of this SELA shall not prevent any subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach. 11.3 U.S. Government End Users The Software is a "Commercial Item," as that term is defined at 48 C.F.R. S2.101, consisting of "Commercial Computer Software" as such term is used in 48 C.F.R. S12.212 . Consistent with 48 C.F.R. S12.212, the Commercial Computer Software is 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. 11.4 US Export Controls Licensee agrees and certifies that neither the Software nor any technical data received from Ephox will be exported outside of the United States except as authorized and permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by Licensee outside of the United States, Licensee agrees not to re-export the Software nor any other technical data received from Ephox except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Licensee obtained the Software. 11.5 Governing Law This SELA is governed by and construed and enforced in accordance with the substantive laws in force in the State of California, USA, and in no event shall the United Nations Convention on Contracts for the International Sale of Goods govern this SELA. Copyright 2008 Ephox Corporation. Ephox and EditLive! are registered trademarks of Ephox Corporation. Last updated: August 28, 2008 (Version 1.0)