JUMBOFEED SOFTWARE LICENSE AGREEMENT
INSTALLING AND USING THE SOFTWARE ACCOMPANYING
THIS LICENSE INDICATES YOUR ACCEPTANCE OF
THESE TERMS AND CONDITIONS. READ ALL OF THE
TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT
PRIOR TO INSTALLING OR USING THE SOFTWARE.
IF YOU DO NOT ACCEPT THESE TERMS, PLEASE
DO NOT INSTALL THE SOFTWARE OR, IF YOU HAVE
ALREADY INSTALLED THE SOFTWARE, YOU MUST
DELETE THE SOFTWARE FROM YOUR HARDWARE.
This is a legal agreement between you and
EvisionDeliver, Inc., its licensors, and
its subsidiaries (collectively "EVD,").
This Agreement states the terms and conditions
on which EVD, offers to license this software
program (the "Program") and the
accompanying on-line, read-me and help files
(the "Documentation") including,
but not limited to, the executable programs,
drivers, libraries and data files associated
with the Program.
PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY
OR TRANSFER THE PROGRAM OR DOCUMENTATION
OR ANY COPY THEREOF, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, NOR MAY YOU SUB-LICENSE
ANY OF YOUR RIGHTS UNDER THIS AGREEMENT.
DEFINITIONS:
Web Server: A computer, or cluster of computers
where the software will be installed for
use in the operation of a single Web Site.
Web Site: A distinct internet address accessible
using the http protocol. For purposes of
this Agreement, a domain is not the same
as a web site. For example, http://www.domain.com
and http://sub.domain.com constitute two
separate web sites under this Agreement.
For purposes of this Agreement, a Web Site
can be located on either a single Web Server
or multiple Web Servers.
LICENSE: This software program (the "Program")
and the accompanying on-line read-me and
help files (the "Documentation")
are licensed, not sold, to you. The term
"Program" shall also include any
updates of the Program licensed to you by
EVD. The license is not transferable to other
Web Site. Subject to the terms of this agreement,
you have a non-exclusive right to use the
Program and Documentation only for educational,
evaluation or personal purposes, or in support
of licensee's business. You do not have a
right to use the Program for purposes of
resale, rental, or the like. This right is
not transferable except as otherwise provided
in this Agreement. You may use this Program
on a single Web Server, for access through
a single Web Site at one time located in
the United States and its territories or
any other country to which this Program is
legally exported. This Program is "in
use" when it is loaded into the temporary
memory (i.e., RAM) or installed into the
permanent memory (e.g., hard drive, CD-ROM
or other storage device) of the computer
or cluster of computers used for operation
of the single Web Site. You agree to use
your best efforts to prevent and protect
the contents of the Program and Documentation
from unauthorized disclosure or use. EVD
reserve all rights not expressly granted
to you. EVD's licensors are the intended
third-party beneficiaries of this agreement
and have the express right to rely upon and
directly enforce the terms set forth herein.
LIMITATION ON USE: You may not rent, lease,
sell or otherwise transfer or distribute
copies of the Program or Documentation to
others, except as otherwise provided in the
"LICENSE TRANSFER" section below.
You may modify the Program with the prior
written consent of EVD as necessary; however,
you expressly agree that any such modification
will immediately and automatically void any
and all warranties and licensor's obligations
under this Agreement, and that licensor shall
not be liable for any claim, damages or action
resulting from said modification. You may
not reverse assemble, reverse compile or
otherwise attempt to create the source code
from the Program. You may not use EVD's name
or other trademarks owned by EVD, to refer
to EVD, or its trademarks directly or indirectly
in any papers, articles, advertisements,
sales presentations, news releases or releases
to any third party without the prior written
approval of EVD for each such use. You may
not release the results of any performance
or functional evaluation of any Program to
any third party without prior written approval
of EVD for each such release.
BACKUP AND PHYSICAL TRANSFER: You may make
one archival copy of the Program for backup
purposes provided EVD's copyright notice
is included. You may also install the Program
on one additional development server for
testing and setup purposes provided the additional
server is not an active or live website or
otherwise publicly available. Use on additional
development servers is permitted only with
prior written consent from EVD. You may also
physically transfer the Program from one
Web Server to another provided that the Program
(including any portion or copy thereof) is
erased from the first Web Server and there
is no possibility that the Program will be
used on more than one Web Server at a time.
LICENSE TRANSFER: The license right granted
in this Agreement is non-transferable unless
licensee submits a written request in advance
identifying the transferee and receives written
consent to the transfer from licensor. Said
consent shall be expressly conditioned upon:
(1) licensee's providing the written request;
(2) a signed agreement between licensor,
licensee and the proposed transferee wherein
transferee agrees to be bound by all of the
terms and conditions of this Agreement and
licensee agrees to terminating all of its
rights under the Agreement; and (3) transferee's
advanced payment of a re-licensing fee to
be determined by licensor. Licensor is under
no obligation to consent to any requested
transfer and can refuse consent for any reason,
however, said consent will not be unreasonably
withheld and Licensor agrees to provide a
written statement providing the reasons for
any refusal. In the event of such a refusal
the parties agree to conduct good faith negotiations
in an effort to resolve the issue. If, after
conducting said negotiations, the parties
are unable to resolve the issue, licensee
may request, at its sole cost, that the matter
be submitted to an independent arbitrator
selected by agreement between the parties
and under procedures to be mutually agreed
upon by the parties. Any attempt by licensee
to sublicense, assign, delegate, rent, lease,
time-share or otherwise transfer this license
or any of the related rights or obligations
except as otherwise provide by this Agreement
shall be void. Upon granting consent to a
transfer, licensor will issue a new license
number to the transferee and disable the
original license number provided to the licensee.
COPYRIGHT: The Program and related Documentation
are copyrighted by EVD, and its licensors.
By acceptance of this Agreement you specifically
acknowledge that the Program is protected
by copyright and that you have received notice
of said copyright protection. You may not
copy the Program (or this license) except
to provide a backup copy and development
server copy as specifically provided in the
Agreement, and to load the Program into the
computer as part of executing the Program.
You may make one copy of the Documentation
and print one copy of any on-line documentation
or other materials provided to you in electronic
form. Any and all other copies of the Program
and any copy of the Documentation made by
you are in violation of this license.
OWNERSHIP: You agree that the Program and
Documentation belong to EVD, and its licensors.
You agree that you neither own nor hereby
acquire any claim or right of ownership to
the Program and Documentation or to any related
patents, copyrights, trademarks or other
intellectual property. EVD, and its licensors
retain all right, title and interest in and
to the Documentation and all copies and the
Program at all times, regardless of the form
or media in or on which the original or other
copies may subsequently exist, and reserves
all rights not expressly granted to you.
This license is not a sale of the original
or any subsequent copy. All content accessed
through the Program is the property of the
applicable content owner and may be protected
by applicable copyright law. This license
gives you no rights to such content.
TERM AND TERMINATION: This license is effective
until terminated. You may terminate this
license at any time by destroying the Program
and Documentation and the permitted backup
copy and the development server copy. This
license automatically terminates if you fail
to comply with its terms and conditions.
You agree that, upon such termination, you
will either destroy (or permanently erase)
all copies of the Program and Documentation,
or return the original Program and Documentation
to EVD, or EVD will terminate the license
number issued to you to deactivate the program,
together with any other material you have
received from EVD, in connection with the
Program.
PRODUCT UPGRADES: You agree that EVD is under
no obligation to release product upgrades
or maintenance releases, such as minor improvements,
bug fixes, or patches. Any such releases
will be at the sole discretion of EVD. In
the event a product upgrade or maintenance
release is released, you will be entitled
to an upgrade or maintenance release within
the current version number licensed by you
free of charge, provided you perform the
necessary application of said upgrade or
release. For purposes of this Agreement,
"within the current version number"
refers to any sub-numbering within a primary
numbered version (e.g., Primary version 2.3,
upgrade version 3.5). "Application"
means downloading or uploading of the distribution
file containing said upgrade or maintenance
release, and performing the necessary activities
to incorporate said upgrade or maintenance
release including, but not limited to, backing
up the older version of the Program, running
any necessary conversion programs, and performing
any necessary reconfiguration. In the event
you decide to have EVD perform any application
for you or on your behalf, EVD reserves the
right to charge a fee, to be determined at
EVD's discretion, for any such application.
EVD further reserves the right to require
an application fee in the event the nature
of the upgrade or maintenance release is
such that EVD determines that any application
should be performed solely by EVD. In the
event such an application by EVD is required,
EVD agrees to insure the quality of said
upgrade or maintenance release by performing
a backup of your current system prior to
any application of said upgrade or maintenance
release by EVD.
NEW VERSIONS OF THE PROGRAM: You agree that
EVD is under no obligation to release any
new version of the Program and/or Documentation.
In the event a new primary version of the
Program and/or Documentation (e.g., Version
2.3) is released by EVD, you agree to pay
for a new license, at a price to be determined
by EVD at its discretion, should you wish
to use said new version.
SUPPORT: EVD agrees to provide reasonable
technical support through a public medium
free of charge. For purposes of this Agreement,
"public medium" refers to a suitable
online forum or news group to be monitored
by EVD and other licensed users of the Program
and/or Documentation. EVD may, at its sole
discretion, provide personal technical support
free of charge, but specifically reserves
the right to charge for such personal technical
support. For purposes of this Agreement,
"personal technical support" refers
to telephone support, electronic mail, or
other online methods. You agree that any
offer or actual provision of technical support
by EVD does not constitute any warranty regarding
the Program and/or Documentation except as
otherwise provided in this Agreement. You
agree that EVD may refuse to provide technical
support when your program is not the latest
version publicly issued by EVD. You understand
that (i) mysql database maintenance, (ii)
Fixing error caused by your modification,
are not included in the free technical support.
DISCLAIMER OF WARRANTY: EVD does not warrant
that the functions contained in the Program
will meet your requirements or that the operation
of the Program will be uninterrupted or error
free. EVD provides the program and the documentation
gas ish without warranty of any kind either
express, implied or statutory, including
but not limited to the implied warranties
of merchantability and fitness for a particular
purpose. You assume full responsibility for
the selection of the Program to achieve your
intended results, and for the installation,
use and results obtained from the Program.
You also assume the entire risk as it applies
to the quality and performance of the Program.
Should the Program prove defective, you and
not EVD assume the entire cost of any service
and repair. This disclaimer of warranty constitutes
an essential part 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 also
have other rights which vary from state to
state.
LIMITATION OR REMEDIES:
In no event will EVD be liable for any indirect
damages or other relief arising out of your
use or inability to use the program including,
by way of illustration and not limitation,
lost profit, lost savings, lost business,
lost opportunity, lost revenue, lost data,
or any special, incidental or consequential
or exemplary damages, including legal fees,
arising out of such use or inability to use
the program, even if EVD, or an authorized
EVD, dealer. Distributor or supplier has
been advised of the possibility of such damages,
or for any claim by other party.
Some states do not allow the exclusion or
limitation of incidental or consequential
damages so the above limitation or exclusion
may not apply to you.
GENERAL: This Agreement is binding on you
as well as your employees, employers, contractors,
agents, and any successors or assignees.
Except as otherwise provided by applicable
state law or federal law governing copyrights,
this Agreement is governed by the laws of
the State of California. This Agreement represents
the entire agreement between EVD and you
and supercedes any other understandings or
agreements including, but not limited to,
advertising statements, with respect to the
Program.