ZOMOS SERVER CONTROL LICENSE AGREEMENT

 

ACCEPTANCE OF TERMS:

This Agreement is between Zomos Corporation ("Zomos") and you, your principals, officers, directors, employees, agents and/or successors ("You"), and sets forth the terms and conditions governing Your access to and use of the Zomos Server Control computer programs including, without limitation, the Server Control license key(s), software documentation, information, services, products, features, and materials included therewith (collectively, "Server Control Software"), which You obtained directly from Zomos or from an Zomos-authorized reseller ("Reseller").  Among other things, this Agreement describes your responsibilities and limits Zomos's liabilities.  Please read it carefully before accepting.  BY PRESSING THE "I ACCEPT" BUTTON AND/OR DOWNLOADING, COPYING OR USING SERVER CONTROL SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, WITHOUT LIMITATION OR QUALIFICATION, ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT.  If you have any questions about these terms and conditions, please contact Zomos at licensing@zomos.com, P.O. Box 1681, Lake Oswego, OR 97035, or, if you received the Server Control Software from Reseller, please contact the Reseller.

As a convenience to You, Zomos or Reseller also makes available with the Server Control Software distribution, certain third-party software products ("Third Party Software"). Zomos is not responsible for and does not endorse or accept any responsibility for Third Party Software.  Your use of each included Third Party Software is subject to separate licensing agreements that are either included with such Software or the Server Control Software documentation, or otherwise made available by Zomos or Reseller.  Such Third Party Software includes certain open source packages such as Apache, mySQL, Qmail and Bind, which are subject to the terms of the GNU General Public License and are more specifically identified in the documentation for the Server Control Software.  For more on the GNU General Public License see http://www.gnu.org/copyleft/gpl.txt.  By acknowledging your acceptance of the terms of this Agreement, You agree that You have had the opportunity to review these third party licenses and agree to comply with them.  In the event of a conflict between a term of this Agreement and a term of a third party license, the terms of the third party license controls with respect to the applicable Third Party Software only.

 

SERVER CONTROL SOFTWARE LICENSE:

Subject to all the terms and conditions of this Agreement, Zomos grants to You a personal, royalty-free, non-sub-licensable, non-transferable, non-exclusive limited license to create and use a single instance of the Server Control Software during the term of this Agreement.  You may make one archival copy of Server Control Software, and You agree that it is prohibited to otherwise loan, lease, transfer, copy, reproduce, distribute, modify, create or use more than one instance of the Server Control Software or any portion thereof for any purpose whatsoever.    Except to the extent that the following restriction is prohibited by applicable law, if any, despite this restriction, You shall not disassemble, reverse compile, reverse engineer or otherwise attempt to reconstruct any software source code or other components of the Server Control Software, or otherwise attempt to discover any underlying Proprietary Information (as that term is defined below).

 

OWNERSHIP:

Except as expressly licensed in the above Section “Server Control Software License”, as between the parties, Zomos owns all right, title and interest in and to the Server Control Software and Proprietary Information.  Ownership of included third-party products remains with their respective holders.

 

INTELLECTUAL PROPERTY CONFIDENTIALITY:

You acknowledge that, in the course of using Zomos Server Control, you may obtain or develop information relating to Server Control and/or to Zomos ("Proprietary Information"), including, but not limited to, technology, software code, know-how, ideas, testing procedures, structure, interfaces, documentation, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data.  During and after the term of this Agreement, you shall hold in confidence, protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, nor can You use any of the aforementioned for your own benefit, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by You.  You acknowledge and agree that due to the unique nature of Zomos's Proprietary Information, there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow You or third parties to unfairly compete with Zomos resulting in irreparable harm to Zomos, and therefore, that upon any such breach or threat thereof, Zomos shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.

 

TRAINING AND SUPPORT:

If You purchased the Server Control Software directly from Zomos, You will be eligible for the applicable training and support options associated with the specific Server Control products You purchased. Zomos shall have no other obligation under this Agreement to provide any training or support or to correct any bugs, defects or errors or to otherwise support, develop or maintain the Server Control Software or any included third-party products, and Zomos will have no obligation to provide support directly to You if You obtained the Server Control Software from a Reseller.  You must contact the Reseller for any support.  Zomos will not provide technical support for any unauthorized software installations, client enhancements, server-side upgrades, or third-party software installations or upgrades not included with this distribution.  You acknowledge and agree that any modifications of or upgrades to the software included with this distribution may jeopardize the performance and reliability of the Server Control Software.

 

LOCAL LAWS; EXPORT CONTROL; ENCYRYPTION SOFTWARE:

Zomos makes no representation that the Server Control Software and Documentation (“Materials”)  are appropriate or available for use in other locations.  You are responsible for compliance with applicable local laws including but not limited to the export and import regulations of other countries.  Unless otherwise explicitly stated, all Materials are solely directed to individuals, companies or other entities located in the United States of America.  Server Control and certain included third-party applications contain certain encryption software which is a U.S. product with cryptographic functionalities which are subject to U.S. export controls under the Export Administration Regulations.  You acknowledge and agree that such Materials are subject to the U.S. Export Administration Laws and Regulations.  Diversion of such Materials contrary to U.S. law is prohibited.  You agree that none of the Materials, nor any direct product there from, is being or will be acquired for, shipped, transferred or re-exported, directly or indirectly, to proscribed or embargoed countries or their nations, nor be used for weapons of mass destruction including but not limited to: nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government.  Proscribed countries are set forth in the U.S. Export Administration Regulations.  Countries are subject to U.S. embargo are:  Cuba, Iran, Iraq, Libya, North Korea, Syria, and the Sudan.  This list is subject to change without further notice from Zomos, and you must comply with the list as it exists in fact.  You certify that you are not on the U.S. Department of Commerce’s Denied Persons List or affiliated lists or on the U.S. Department of Treasury’s Specially Designated Nationals List.

 

UNITED STATES GOVERNMENT RIGHTS:

All Zomos products and documents are commercial in nature. If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are licensing the Server Control Software for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge, that by accepting delivery of the Server Control Software, the Government  agrees that the Server Control Software qualifies as "Commercial Items", as that term is defined in 48 C.F.R.§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R.?12.212 and 48 C.F.R. 227.7202, as applicable. Pursuant to 48 C.F.R. §12.212, 48 C.F.R.§252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable.  The terms and conditions of this Agreement are fully applicable to the Government's use and disclosure of the Server Control Software, and shall supersede any conflicting terms or conditions.   No license of any kind is granted in the case of acquisitions which contain or are subject to the clauses FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the Government rights greater than, or additional to those, set forth in this Agreement, or which purports to impose additional requirements upon Zomos to make this Agreement effective, unless Zomos specifically so consents by separate written agreement.  Commercial computer software, and commercial computer software documentation are distributed and licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in the license agreements that accompany the products and software documentation, and the terms and conditions herein Failing such agreement, and if this Agreement fails to meet the Government's stated needs or is inconsistent in any respect with federal law, the Government agrees to return the Software and Documentation, unused, to Zomos or, if applicable, Reseller.  The Licensor/Manufacturer is Zomos Corporation at P.O. Box 1681 , Lake Oswego, Oregon 97035.

 

LIMITED WARRANTY TO DIRECT ZOMOS CUSTOMERS ONLY:

If You purchased a new or upgraded (subsequent) version of the Server Control Software directly from Zomos.  Zomos warrants and represents that the Server Control Software as delivered by Zomos to You will substantially perform in accordance with its applicable documentation for the period specified at the time of your purchase of the Server Control Software from Zomos.  If no warranty period is specified at the time of your purchase of the Server Control Software, then no warranty is available to you. Notwithstanding the foregoing, Zomos makes no warranties with respect to any GPL Software or other Third Party Software embedded in the Program and/or furnished to You.

 

LIMITED REMEDIES:

 In the event of a breach of Zomos's warranty under the preceding paragraph, Zomos will, at its discretion, repair and/or make available replacement Server Control Software.  The foregoing remedies are Your exclusive remedies for a breach of warranty hereunder.  Zomos will not have any liability under this warranty if the alleged defect is due to causes not within Zomos's reasonable control, including but not limited to any defect caused by any negligent act or omission by anyone other than Zomos, any defect caused by use of the Server Control Software in an operating environment not specified by the applicable documentation or otherwise not in accordance with this Agreement, or any defect caused by alteration or abuse of media or which the Server Control Software is stored, failure to follow Zomos's instructions for installation, operation or maintenance, power failure or surges, fire, flood or the like.

 

DISCLAIMER OF WARRANTIES:

OTHER THAN THE LIMITED WARRANTY TO DIRECT ZOMOS CUSTOMERS SET FORTH ABOVE, THE SERVER CONTROL SOFTWARE AND ANY SERVICES PROVIDED BY ZOMOS UNDER THIS AGREEMENT ARE PROVIDED "AS IS", "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY LAW.  YOU BEAR ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THIS SOFTWARE.  No oral or written information or advice given by Zomos, its licensors or suppliers, resellers, agents or employees will create a warranty.  ZOMOS AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS IN THE SERVER CONTROL SOFTWARE PROVIDED BY ZOMOS MEET THE REQUIREMENTS OF RESELLER OR ANY RESELLER OR THAT OPERATION OF SUCH SOFTWARE WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED AND HEREBY DISCLAIM ALL LIABILITY ON ACCOUNT THEREOF.  If You obtained the Server Control Software from Reseller, You may have certain warranties provided by the Reseller, and You agree to look solely to Reseller with respect to any such warranties.

 

LIMITATION OF REMEDIES AND DAMAGES:

TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ZOMOS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) LOSS OR INACCURACY OF DATA, (B) DAMAGE TO SOFTWARE OR EQUIPMENT, (C) INABILITY TO DELIVER GOODS, SERVICES OR TECHNOLOGY, (D) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (E) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, DATA OR PROFITS, OR (F) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.  IN NO EVENT WILL ZOMOS'S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT, IN THE AGGREGATE, EXCEED THE LICENSE FEE YOU PAID TO ZOMOS PURSUANT TO THIS AGREEMENT.  If you obtained the Server Control Software from Reseller, YOU AGREE THAT YOU SHALL LOOK SOLELY TO RESELLER FOR RECOURSE, AND ZOMOS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.  YOU HAVE THE SOLE RESPONSOBILTITY FOR THE ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE ZOMOS SERVER CONTROL PANEL SOFTWARE.

 

TERMS AND TERMINATION:

If You have received an Evaluation version of the Server Control Software, this Agreement will remain in effect for a period of 15 days and will then automatically terminate as provided herein.  If you have purchased Server Control Software there is no refund of your purchase price. You can try Zomos Server Controls for 15 days for free, but once you purchase Zomos Server Controls, we have a no refund policy. If You have received or subsequently acquire a standard version of Server Control Software, this Agreement shall remain in effect until either of the parties terminates the Agreement as provided herein.  This Agreement may be terminated by You for any reason or no reason upon written notice to Zomos.  This Agreement may be terminated by Zomos, with or without notice, immediately upon Your breach of any provision of this Agreement.  Notice can be delivered by any means, including electronic mail.  Upon termination or expiration, the terms of this Agreement will remain in full force and effect, except the license granted in Section 1 shall terminate and You will immediately cease all use of Server Control Software and destroy all copies or portions of Server Control Software and Proprietary Information in your possession or control.

 

NO ASSIGNMENT:

Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You without Zomos's express written consent, and any such attempted assignment or transfer shall be void and without effect.

 

ARBITRATION OF DISPUTES AND ENFORCEMENT:

Any dispute or claim arising out of or related to the Agreement shall be settled by arbitration in accordance with the rules of the American Arbitration Association and judgment awarded by the arbitrator(s) may be entered in any court having jurisdiction.  In the event that any action is brought to enforce any provision of this Agreement, the losing party shall pay to the prevailing party all costs and expenses including reasonable attorney’s fees, which may arise or accrue from enforcing said provisions of this Agreement, whether pursued by filing suit or otherwise, or whether such costs and expenses are incurred with or without suit, or before or after judgment, including any appeal thereof.   

 

CONTROLLING LAW; SEVERABILITY:

This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, U.S.A., You agree to submit to the exclusive jurisdiction and venue of the federal and state courts located in the State of Oregon and County of Multnomah, including arbitration.  If any provision of this agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.  If a court or other tribunal or competent jurisdiction finds that any provision of this agreement in invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.  

 

ENTIRE AGREEMENT; AMENDMENT; WAIVER:

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supercedes any prior conditions, promises, and written or oral agreements existing between the parties.  No waiver or modification of this Agreement will be binding upon either party unless made in a writing and signed by both parties.  The failure of either party to enforce any provision of this agreement will not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement.

 

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT IN ITS ENTIRETY, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.