PowerUpdate from Zero G - License Agreement

License Agreement
Zero G Software, Inc. 
License Agreement for PowerUpdate(TM) Software and Service

IMPORTANT - THIS IS A LEGAL AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

By checking the "Accept" radio button, you and your employer and any entity with which you may be affiliated (collectively, "You" or "Your") are consenting to be bound by this license agreement ("Agreement").  If you do not agree to all of the terms of this Agreement, do not accept the Agreement and the installation process will stop. 

This Agreement places certain limitations on Your use of the PowerUpdate Software and Service while you evaluate its capabilities.  If You have any questions or wish to license the PowerUpdate Software and Service without such restrictions, please contact Zero G by telephone at +1-415-512-7771 or email Products@ZeroG.com.


1. DEFINITIONS
The following terms when used in this Agreement shall have the following meanings:

1.1 "Zero G" means Zero G Software, Inc., a California corporation with its principal offices located at 514 Bryant Street, San Francisco, CA  94107.

1.2 "Software" means Zero G's proprietary PowerUpdate(TM) software in Java byte code or object code format only, and all associated files, including, without limitation, any Documentation, in any and all versions which Zero G in its sole option elects to provide to You, unless such subsequent version(s) are governed by a different license agreement.

1.3 "PowerUpdate Service" means a service provided to You by Zero G that uses the Software to facilitate the electronic updating of Your Products to End Users.

1.4 "Your Products" means one or more of Your software products, including source code, object code, documentation, data, and content, which have been or will be developed by You or licensed by You and which You have registered with Zero G to utilize the PowerUpdate Service.

1.5 "Distributor" means a dealer or distributor in the business of reselling or relicensing Your Products to End Users, without modifications or enhancements, directly or through one or more Distributors, by virtue of authority granted by You.  Any third party other than You who has the right to add to or modify any part of Your Products shall have no rights under this Agreement without the written consent of Zero G.

1.6 "Documentation" means the written or on-line instructions, help information, and other reference materials related to the Software and the PowerUpdate Service, provided to You by Zero G.

1.7 "End User" means a person or an entity receiving Your Products from You or a Distributor for such person's or entity's personal or internal use and primarily not for resale, redistribution or other transfer of Your Products to any other person or entity.


2. GRANT OF LICENSE
2.1 License Grant. Upon Your acceptance and subject to all of the terms and conditions of this Agreement, Zero G hereby grants You a nonexclusive, nontransferable license during the term of this Agreement to:

(a) copy and use the Software for the sole purpose of enabling You to use the PowerUpdate Service in accordance with the applicable Documentation with Your Products; 

(b) license and distribute to Distributors and End Users the portions of the Software that are expressly designated by Zero G in its Documentation as distributable to End Users, provided such license and distribution is in accordance with Section 8 and is solely for use with Your Products and the PowerUpdate Service; and

(c) use the PowerUpdate Service for distributing, updating and supporting Your Products;

2.2 Limitations On Licenses. Notwithstanding the foregoing, neither You nor any of Your Distributors shall directly or indirectly sell, lease, rent, license, sublicense, redistribute, lend, give, transfer or otherwise distribute or use the Software except as expressly authorized by Section 2.1.  Nothing in this Agreement grants You or any of Your Distributors any rights, license or interest with respect to source code of the Software.  Neither You nor any of Your Distributors shall modify, translate, or create derivative works from the Software or rent, lease, distribute, sell, resell, assign or otherwise transfer rights to the Software, use the Software for timesharing or service bureau purposes, or remove any proprietary notices or labels on the Software, use or attempt to use the Software in any environment other than as provided by Zero G as part of the PowerUpdate Service.  Except to the extent such a restriction is expressly prohibited by applicable law, neither You nor any of Your Distributors nor any person acting with or for You shall reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the  Software or any subsequent version thereof or any part thereof.  Without limiting the other rights or remedies of Zero G, You shall indemnify, defend, and hold Zero G harmless from any claim, action, damage, or other loss arising from any claim that You or Your Distributors or any person acting with or for You has breached this Section 2.  Nothing in this Agreement grants You or any of Your Distributors or any other person or entity the right to receive any upgrades, modifications or other enhancements to the Software at any time.

2.3 Zero G reserves the right to modify or discontinue the Software or the PowerUpdate Service at any time without prior notice to or consent by You.


3. OWNERSHIP/PROPRIETARY RIGHTS   
3.1  Ownership:  Your rights in and to the PowerUpdate Service and Software are solely as set forth in Article 2.1, and do not include any rights of ownership. You agree that Zero G (or its suppliers) owns all right, title and interest (including, but not limited to, ideas, know-how, copyright, patent, trade secret and other intellectual property rights) to the Software and Service, including any and all modifications, enhancements, derivative works and other alterations by any person or entity.  

3.2 Intellectual Property Rights.  The Software, the structure, organization and code embodied in the Software, and the PowerUpdate Service are the valuable and confidential trade secrets of Zero G and are protected by intellectual property laws and treaties.  You agree to take all reasonable measures to protect Zero G's intellectual property rights and to abide by all applicable laws.

3.3 Copyright Notices. You agree not to remove, alter, or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Software  or any related materials. 


4. TERMS OF SERVICE
4.1 Product Files. You may provide End Users with updates to one or more electronic files for one or more of Your Products. Such files may be stored on server(s) you manage or may be uploaded to Zero G's server(s). At Your option, the PowerUpdate Service can deliver files from Your server(s) or from Zero G's server(s).

4.2 Limitations on Files. All files You upload to Zero G's server(s) must be associated with one of Your Products. Any files that You upload that are not associated with one of Your Products may be deleted from Zero G's server(s) by Zero G. If You or one of Your End Users has not accessed the PowerUpdate Service for more than one hundred and twenty (120) days, then You agree that Your PowerUpdate Service account is inactive and all files, including but not limited to product definitions stored in the PowerUpdate Service, may be deleted by Zero G.

4.3 Limitations on End Users. Unless otherwise agreed to in writing by Zero G, this Agreement permits you to manage a maximum of twenty (20) End Users for all of Your Products. The number of End Users are cumulative for all of Your Products and a single End User that updates two of Your Products will count as two End Users for purposes of this limitation. End Users over the maximum number will be unable to receive updates for Your Product from the PowerUpdate Service.

4.4 Limitations on Data Transferred. If You choose to upload Your files to Zero G's server(s), then Zero G will be delivering files for Your Product over Zero G's Internet connection. You will be allowed a cumulative maximum of six hundred (600) megabytes of data transferred from Zero G's servers to Your End Users. After reaching that cumulative maximum, your End Users will be unable to receive updates for Your Product from the Zero G server(s). There is no limitation on the cumulative data size delivered from Your server(s) by the PowerUpdate Service.


5. PAYMENT
There is no charge to You for Your use of the Software and Power Update Service as long as you comply with the terms of this Agreement.


6. REPRESENTATIONS AND WARRANTY
You represent and warrant that (i) You have the right to enter into this Agreement, (ii) that Your services and products, and the services, products, materials, data, information and equipment used by You in connection with this Agreement will not (a) be used to transmit any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, obscene, libelous or invasive of another's privacy or right of publicity; (b) infringe on the intellectual property rights of any party; (iii) it will not interfere with or disrupt the PowerUpdate Service or servers, other equipment or networks connected to the PowerUpdate Service, or disobey any requirements, procedures, policies or regulations of networks connected to the PowerUpdate Services;  (iv)it will not violate any applicable local, state, national or international law and (v) You shall only represent to Distributors and End Users such information and material about the Software and PowerUpdate Service as Zero G states in its published product descriptions, advertising and promotional materials or as may be stated in other nonconfidential written material furnished by Zero G, as modified from time to time.


7. DISCLAIMER OF WARRANTIES
NO REPRESENTATIONS OR WARRANTIES (WRITTEN OR ORAL) HAVE BEEN MADE BY ZERO G.  THE SOFTWARE AND POWERUPDATE SERVICE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER.  ZERO G DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED AS TO ANY MATTER WHATSOEVER AND TO ANY PERSON OR ENTITY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.  NO WARRANTY IS MADE THAT THE SOFTWARE OR SERVICE WILL BE ERROR-FREE OR VIRUS-FREE, UNINTERRUPTED OR SECURE.  NO WARRANTY IS MADE THAT ANY ERRORS OR DEFECTS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED, OR THAT THE SOFTWARE OR SERVICE WILL MEET YOUR REQUIREMENTS. You acknowledge and agree that transmitting or receiving data and information over the Internet may result in real or intellectual property damage, and Zero G exercises no control and has no responsibility whatsoever over the content of information transmitted by use of Zero G's PowerUpdate Service or Software, and transmission or use of such information is at Your own risk. You acknowledge and agree that Zero G has no responsibility for keeping any archival record of files that You may upload to the Zero G PowerUpdate server(s), and that You are solely responsible for maintaining archival copies of files you upload to Zero G's PowerUpdate server(s). You acknowledge and agree that Zero G makes no representations or warranties to any third parties, including, but not limited to, End Users and Distributors.  Any representations or warranties of any kind made to any third party are made solely by You, not Zero G.  


8. SUPPORT
Zero G may, but is not obligated to, provide You with technical support for the Software and/or the PowerUpdate Service.  Zero G shall not provide any support to Distributors and End Users and You agree that all support, if any, provided to Distributors and End Users of the Software, the PowerUpdate Service or Your Products shall be by You at Your expense.


9. YOUR ADDITIONAL OBLIGATIONS
9.1  General.  (i)  You agree to enter into a written, enforceable agreement with each Distributor and End User which shall contain, at a minimum, substantially all of the limitations on Your rights and substantially all of the protections for Zero G regarding the Software and PowerUpdate Service that are contained in this Agreement.  (ii) You agree not to remove or modify the Zero G trademark and copyright notice from the Zero G Software or PowerUpdate Service. (iii) You agree that Zero G may list You on Zero G's marketing materials, including the Zero G website, as a Zero G customer.

9.2 Privacy.  The Software contains features which may allow Zero G and You to collect data (such as the version of Your software) from computers running the Software or components thereof deployed by You without notice or knowledge by End Users.  You are wholly responsible for, and assume all liability with respect to, all such activity, including, without limitation, notifying such users and complying with all data collection, privacy and other regulations, laws, industry standards and rights of others applicable to any such activity.  You will indemnify and hold Zero G harmless from and against any damages, claims, losses, settlements, attorneys' fees and other expenses related to any such activities or any claims in connection therewith.


10. LIMITATION OF LIABILITY
IN NO EVENT SHALL ZERO G OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS OR RESELLERS BE LIABLE FOR DAMAGES TO OR THROUGH YOU, ANY END USER, OR ANY OTHER PERSON OR ENTITY FOR BREACH OF, ARISING UNDER, OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SERVICE PROVIDED HEREUNDER, UNDER ANY THEORY INCLUDING, BUT NOT LIMITED TO, DIRECT, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR ANY OTHER LOSS) WHETHER FORESEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLEGENCE) STRICT LIABILITY OR OTHERWISE. 


11.  INDEMNIFICATION 
You agree that You shall, at Your own expense, defend, or at Your option settle, any action instituted against Zero G or its officers, directors, employees, representatives, agents, suppliers or resellers, and pay any award or damages finally assessed against Zero G or its officers, directors, employees, representatives, agents, suppliers or resellers or agreed to be paid by You in settlement resulting from such action, insofar as the same is based upon a claim that (i) any of Your Products or the use of any of Your Products either alone or in combination with any part of the Software or the PowerUpdate Service infringe or misappropriate any copyright, trade secret, or patent or any other proprietary right; (ii) that Your use of the Software or PowerUpdate Service violates any applicable law, statute or regulation; (iii) that Your use of the Software or PowerUpdate Service violates any applicable third party privacy, publicity, intellectual property or other proprietary right provided that Zero G gives You: (a) prompt notice in writing of such action, (b) the right to solely control and direct the investigation, preparation, defense and settlement of the action (provided that any settlement must be approved by Zero G); and (c) reasonable assistance and information.


12. TERM AND TERMINATION
12.1 Term. This Agreement is effective on the date You download the Software, and shall continue in force until terminated by either party. Either Zero G or You may terminate this Agreement at any time without notice. In addition, Zero G may terminate this Agreement, without notice, if Your account shows no activity for a period of one hundred and twenty (120) days or longer, unless otherwise agreed to in writing by Zero G.
 
12.2 Immediate Termination for Cause. This Agreement (and any licenses granted herein to You or Your Distributors or End Users) will terminate immediately if You provide any false information to Zero G or if You fail to comply with any material term of this Agreement.  

12.3 Destruction of Software. Upon the termination of this Agreement for any reason, You will destroy all copies of the Software in Your possession.

12.4 Survival of Certain Terms.  The following shall survive any expiration or termination: Sections 1, 2.2, 3, 10, 11, and 13, and any claims or causes of action then in existence, and any payment obligations hereunder.


13. MISCELLANEOUS PROVISIONS
13.1 Representations Regarding Software. You are authorized to represent to Distributors and End Users only such information and material about the Software and PowerUpdate Service as Zero G states in its published product descriptions, advertising and promotional materials or as may be stated in other nonconfidential written material furnished by Zero G, as modified from time to time.

13.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, irrespective of its choice of law principles. All disputes arising out of this Agreement shall exclusively be brought in the California state courts in and for the County of San Francisco or the United States District Court for the Northern District of California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.3 Assignability. This Agreement is personal to You and shall not be assignable by You, by operation of law or otherwise, without the prior written consent of Zero G (in Zero G's sole discretion).  Zero G may assign or transfer this Agreement or any of its rights or obligations hereunder at any time.  Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their respective successors and permitted assigns.

13.4 Confidential Information. You agree that the Software and any information concerning the PowerUpdate Service and Software, including its nature and existence, and any other information disclosed by Zero G to You, will be considered and referred to collectively in this Agreement as "Confidential Information." 

Confidential Information, however, does not include information that: (i) is now or subsequently becomes generally available to the public through no action of Yours; (ii) You can demonstrate to have had rightfully in Your possession prior to disclosure to You by Zero G Software; (iii) is independently developed by You without the use of any Confidential Information; or (iv) You rightfully obtain from a third party who has the right to transfer or disclose it.

You agree not to disclose, publish, or disseminate Confidential Information to anyone other than Your employees and contractors who agree to be bound by the terms of this Agreement. All Confidential Information remains the sole property of Zero G Software. You agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. You agree to use Confidential Information solely for the purpose of testing the Pre-Release Software in conjunction with Your products and not for any third party's benefit without the prior written approval of Zero G Software in each instance. You have no implied licenses or other rights in the Confidential Information not specifically granted in this Agreement.

When requesting and receiving technical support, You will not provide Zero G Software with any information that is confidential to You or any third party. Any notice, legend, or label to the contrary contained in any materials provided by You to Zero G Software shall be without effect.

13.5 Entire Agreement/Amendment/Severability/Headings/Independent Contractors/Waiver. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings between the parties regarding the subject matter hereof. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties hereto.  All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement.  Zero G and You are independent contractors.  Failure of either Zero G or You to insist on performance of any term or condition of this Agreement or to exercise any right or privilege thereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege.  

13.6  Export Controls:  You agree to comply with all applicable U.S. export control laws and regulations, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.

rev. 2001-11-14