End User Software License Agreement
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING SOFTWARE (AS HEREINAFTER DEFINED) FROM THIS SITE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (i.e. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS AGREEMENT AND YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT USE THE SOFTWARE AND EITHER DISPOSE OF IT OR RETURN IT TO THE LOCATION FROM WHICH IT WAS OBTAINED.
“Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (i) zūmibox or third party computer information or software; (ii) related explanatory written materials or files (“Documentation”); and (iii) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by zūmibox (collectively, “Updates”).
“Use” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
“Allowable Number” means one (1) unless otherwise indicated under a valid license (e.g. volume license) granted by zūmibox.
“Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“zūmibox” means zūmibox, an operating division of the Argonaut Mining Company, a corporation organized and existing under the laws of the Commonwealth of Kentucky, with administrative offices located at 2698 Dixie Highway, Lakeside Park, Kentucky 41017.
2. Software License.
As long as you comply with the terms of this Agreement, zūmibox grants to you a non-exclusive license to Use the Software for the purposes described in the Documentation.
2.1 General Use. You may install and Use a copy of the Software on your PC compatible Computer, up to the Allowable Number of Computers.
2.1.1 Copies. You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends from the original copy of the Software.
2.2 Indemnity. You agree to hold zūmibox harmless from any and all liabilities, losses, actions, damages, suits, demands, recoveries, costs, judgments or claims (including all reasonable expenses, costs, and attorneys fees) arising out of or relating to your use of the Software.
2.3 Limit of Liability. UNDER NO CIRCUMSTANCES WILL zūmibox BE LIABLE TO YOU, OR ANY OTHER PERSON OR ENTITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO YOUR USE OR RELIANCE UPON THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUE, PROFIT, OR GOODWILL, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY EVEN IF zūmibox HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE AND EVEN IF THERE IS A FUNDAMENTAL OR MATERIAL BREACH OF THIS AGREEMENT BY zūmibox. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT ALLOWABLE BY APPLICABLE LAW IN YOUR JURISDICTION.
2.4 Exclusive Remedy. YOU AGREE THAT zūmibox’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH THEREOF SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE, IF ANY.
3. Intellectual Property Ownership, Copyright Protection.
You acknowledge and agree that zūmibox owns all right, title, and interest, including, but not limited to, copyrights and all other intellectual property rights, in and to the Software (including, but not limited to, any images, photographs, text, and “applets” incorporated into the Software and the structure, organization and code of the Software), the accompanying Documentation and other printed material, and any copies of the Software (the “Intellectual Property”) and that the Intellectual Property is a valuable trade secret and is confidential information of zūmibox. The Intellectual Property is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any rights in the Intellectual Property and all rights not expressly granted are reserved by zūmibox.
4.1 No Modifications. You shall not modify, adapt, translate or create derivative works of the Software. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent: (i) you are expressly permitted to decompile under applicable law, (ii) it is essential to decompile in order to achieve operability of the Software with another software program, (iii) you have first requested zūmibox to provide the information necessary to achieve such operability; and (iv) zūmibox has not made such information available. zūmibox has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by zūmibox and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the Software. Requests for information should be directed to the zūmibox Customer Service Department at EMAIL.
4.2 Transfer. You may not rent, lease, lend, redistribute, sublicense, assign or transfer (“Transfer”) your rights in the Software, or authorize all or any portion of the Software to be copied onto another user’s Computer except as may be expressly permitted herein. You may, however, make a one-time permanent Transfer of all your rights to Use the Software to another person or legal entity (the “Receiving Party”) provided that: (a) you also Transfer (i) this Agreement, and (ii) the Software (including all copyright notices and other proprietary legends) and all other software or hardware bundled or pre-installed with the Software, if applicable, including all copies, Updates and prior versions, to the Receiving Party; (b) you retain no copies, including backups and copies stored on a Computer; and (c) the Receiving Party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Any Transfer not in accordance with the foregoing shall automatically terminate your license to use the Software. Notwithstanding the foregoing, you may not Transfer education, pre-release, or not for resale copies of the Software.
If the Software is an Update to a previous version of the Software, you must possess a valid license to such previous version in order to Use such Update. All Updates are provided to you on a license exchange basis. You agree that by Using an Update you voluntarily terminate your right to use any previous version of the Software. As an exception, you may continue to Use previous versions of the Software on your Computer after you Use the Update but only to assist you in the transition to the Update, provided that: (a) the Update and the previous versions are installed on the same Computer; (b) the previous versions or copies thereof are not Transferred to a Receiving Party or Computer unless all copies of the Update are also Transferred to the Receiving Party or Computer; and (c) you acknowledge that any obligation zūmibox may have to support the previous versions of the Software may be ended upon availability of the Update.
6. NO WARRANTY.
The Software is being delivered to you “AS IS” and zūmibox makes no representation or warranty as to its use or performance. zūmibox DOES NOT AND CANNOT REPRESENT OR WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE, THAT THE SOFTWARE WILL BE UNINTERRPUTED, SECURE AND FREE FROM ERROR OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, zūmibox AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, WORKMANSHIP, DURABILITY, INTEGRATION, ACCURACY, SATISFACTORY QUALITY, PERFORMANCE, OR FITNESS FOR ANY PARTICULAR PURPOSE. zūmibox SPECIFICALLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM zūmibox SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
7. Export Rules.
You agree that the Software will not be shipped, transferred, exported or re-exported into any country or used in any manner prohibited by the U.S. Export Administration Regulations or any other applicable international or U.S. laws, restrictions or regulations (collectively the “Export Laws”). In addition, you represent and warrant that you are: (i) not a citizen, or otherwise located within, an embargoed nation; (ii) not 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; and (iii) not otherwise prohibited under the Export Laws from receiving the Software.
8. Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of Kentucky. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This Software and the Documentation are provided with “RESTRICTED RIGHTS” applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the US Government is subject to restrictions as set forth in this Agreement and under applicable law.
9. CONTACT PERMISSION.
By downloading our Software, you agree that should you provide zūmibox with your email address, zūmibox may send you notifications via email about topics including but not limited to: changes in the Software, Updates, changes to terms of service, and special promotions.
10. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of zūmibox. Updates may be licensed to you by zūmibox with additional or different terms. This is the entire agreement between zūmibox and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
11. Pre-release Product Additional Terms.
If the Software you have received with this license is pre-commercial release or beta Software (“Pre-release Software”), then the following Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Pre-release Software is a pre-release version, does not represent final product from zūmibox, 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 zūmibox disclaims any warranty or liability obligations to you of any kind. WHERE LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, zūmibox’S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF TEN DOLLARS (U.S. $10) IN TOTAL. You acknowledge that zūmibox has not promised or guaranteed to you that Pre-release Software (or a product similar or compatible to the Pre-release Software) will be announced or made available to anyone in the future and that zūmibox has no express or implied obligation to you to announce or introduce the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. During the term of this Agreement, if requested by zūmibox, you will provide feedback to zūmibox regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, your use of the Software is also governed by such agreement; however, to the extent that any provision in the other agreement is in conflict with any other term or condition in this Agreement, Agreement shall supersede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You agree that you may not and certify that you will not Transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by zūmibox of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from zūmibox and to abide by the terms of this Agreement and any separate written agreement accompanying such later versions of the Pre-release Software. Notwithstanding anything in this Section to the contrary, if you are located outside the United States of America, you agree that you will return or destroy all unreleased versions of the Pre-release Software within thirty (30) days of the completion of your testing of the Software when such date is earlier than the date for zūmibox’s first commercial shipment of the publicly released Software.
This Agreement will be effective for the useful life of the Software; however, zūmibox may immediately terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. Upon termination of the Agreement, you agree to destroy the Software. The provisions of Section 2.2, Section 2.3, Section 2.4, Section 3, and Section 6 shall survive the termination of this Agreement, but this shall not imply or create any continued right to Use the Software after termination of this Agreement.
Where zūmibox has provided you with a translation of the English language version of this Agreement, then you agree that the translation is provided for your convenience only and that the English language versions of the Agreement will govern your relationship with zūmibox. If there is any contradiction between what the English language version of the Agreement says and what a translation says, then the English language version shall take precedence.
If you are interested in additional information on licensing or use of the Software, have any questions concerning this EULA, or desire to contact zūmibox for any reason, please contact Customer Service or write: zūmibox, P.O. Box 176001 Ft. Mitchell, KY 41017-6001 United States, Attn: Customer Service.