ZD-CMS SOFTWARE as a SERVICE (SaaS) END USER LICENSE AGREEMENT (EULA) THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND ZEE DESIGNS INC., THE SOFTWARE OWNER. BY USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. BY USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY ZEE DESIGNS INC. HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN. Now, therefore, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows: 1. DEFINITIONS a. "You" or "your" as used herein means the person or company who is being licensed to use the Software, as defined below. "We," "us" and "our" as used herein means Zee Designs Inc. b. "Zee Designs," Zee Designs Inc. and ZDI means Zee Designs Inc. and its licensors, if any. c. "Output File" means an output file generated by you using the Software. d. The "Software" as referred to herein means the Zee Designs Content Management System (ZD- CMS ), a server based, proprietary software product that allows website developers to add/edit/delete module instances to multiple website-related domains for the purpose of managing website content and allows programmers to develop custom web applications within a sophisticated interface. "Software" means only the ZDI software program(s) and third party software programs, in each case, supplied by ZDI herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation. Any updates to such Software which you are entitled to receive and that has been provided to you by ZDI shall also mean Software for purposes of this Agreement. e. The Software End User License as referred to herein means the legal instrument governing the usage or redistribution of copyright protected software. The ZD-CMS Software is proprietary. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 1 of 10
The hallmark of proprietary software licenses is that the software publisher grants a license to use one or more copies of software, but that ownership of those copies remains with the software publisher (hence use of the term "proprietary"). One consequence of this feature of proprietary software licenses is that virtually all rights regarding the software are reserved by the software publisher. Only a very limited set of well-defined rights are conceded to the end-user. Therefore, it is typical of proprietary software license agreements to include many terms which specifically prohibit certain uses of the software, often including uses which would otherwise be allowed under copyright law. The most significant effect of this form of licensing is that, if ownership of the software remains with the software publisher, then the end-user must accept the software license. In other words, without acceptance of the license, the end-user may not use the software at all. f. Installation (or setup) as referred to herein means the installation or setup of a program (Software), including drivers, and is the act and the effect of putting the program in a computer system so that it can be executed. Most programs are supplied in a condensed form intended for sale and distribution. In order to be used, they must be 'unpacked' and the relevant information placed correctly on the computer, taking account of variations between computers, and any customized settings required by the user. During installation, various tests are made of system suitability, and the computer is configured to store the relevant files and any necessary settings required for that program to operate correctly. Because the requisite process varies for each program and each computer, many programs (including operating systems) come with a general-purpose or dedicated installer a specialized program which automates most of the work required for their installation. g. Implementation as referred to herein means a product software implementation method which is a systematically structured approach to effectively integrate a software based service or component into the workflow of an organizational structure or an individual end-user. A product software implementation method is a blueprint to get users and/or organizations running with a specific software product. The method is a set of rules and views to cope with the most common issues that occur when implementing a software product: business alignment from the organizational view and acceptance from the human view. h. Technical and User Support as referred to herein means, including without limitation, to gather the customer s information, determine the customer s issue by analyzing the symptoms, figuring out the ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 2 of 10
underlying problem, provide the necessary guidance to customer for using the software appropriately, provide expert level troubleshooting and analysis, research and development of solutions to new or unknown issues, solve the problem with or without the customer. Technical support may be delivered by different technologies depending on the situation. For example, direct questions can be addressed using email, chat or fax; basic software problems can be addressed over the telephone or by using remote support for the sole purpose of troubleshooting and finding a solution to the problem. ZDI does not support more complicated problems with equipment which may need to be dealt with in person by a qualified hardware specialist educated in and with knowledge of client-specific equipment. 2. LICENSE GRANT a. We hereby grant you a nonexclusive, non-transferable, revocable license to use the Software by issuance of a username and password to be used exclusively by you. License will remain active while invoices are paid in full and are current, and you are in full compliance of all Agreements. b. Each User and associate of User must have unique log in information. User may not share login information with other humans even if they are associated with User s self or entity. Attached hereto and incorporated herein as Exhibits A and B are Terms of Service Overview and Terms of Service. c. Subject to the terms and conditions of this Agreement, in the event the Software is distributed along with other ZDI software products as part of a suite of products (collectively, the "ZD-CMS "), the license of the ZD-CMS is licensed as a single product and none of the products in the ZD-CMS may be separated. d. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that ZDI may use those measures and you agree to follow any requirements regarding such technological measures. Product activation is based on the exchange of information between your computer and ZDI. e. You agree that ZDI may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse ZDI for all reasonable expenses related to such audit. In addition, you are responsible for actual monetary damages, payable to ZDI, ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 3 of 10
who experiences loss from your misuses of the Software. 3. TITLE The Documentation as referred to herein shall mean the written or online materials that you may receive in connection with the Software. We will remain the sole and exclusive owners of all right, title and interest in and to the Software and the Documentation. 4. ARCHIVAL OR BACKUP COPIES a. You may utilize the Module Backup feature in the CMS Manager to backup your data. Copies of the Software are not included in these backups. 5. THINGS YOU MAY NOT DO - License Restrictions You agree and acknowledge that the Software and Documentation are proprietary works that may be protected by the copyright laws of various nations. You may only use the Software and Documentation for the purposes and in accordance with the terms of this Agreement. Without limitation: a. You may not copy the Documentation. b. You may not copy the Software, only your data as provided above. c. You may not sublicense, rent, lease, lend, distribute or electronically transfer any portion of the Software as a Service or Documentation. d. You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. e. Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software. f. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations there-under. g. You shall not use the Software to develop any product having the same primary function as the Software. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 4 of 10
h. You shall not demonstrate or allow anyone without a EULA to view the Software or Documentation. 6. FAILURE TO COMPLY In the event that you fail to comply with this Agreement, ZDI may terminate the license and you must destroy all copies of documentation related to the Software (with all other rights of both parties and all other provisions of this Agreement surviving any such termination). You acknowledge that any violation of this paragraph will cause us immediate and irreparable harm and that the damages which we will suffer may be difficult or impossible to measure. Therefore, upon any actual or impending violation of this paragraph, we shall be entitled to the issuance of a restraining order, preliminary and permanent injunction without bond, restraining or enjoining such violation by you, your successors or assigns or any entity or person acting in concert with you. Such remedy shall be additional to and not in limitation of any other remedy which may otherwise be available to us by law. In the event that you fail to comply with this Agreement, you are responsible for actual monetary damages, payable to ZDI, for the loss experienced through your misuses of the Software and its documentation. 7. TRANSFERS You may permanently transfer all of your rights under this Agreement only as part of a sale or transfer, provided you retain no login access, and the recipient agrees in writing to the terms of this Agreement and all other ZDI Agreements related to the Software, and the Agreements must by signed by original signatures of the transferee before login access is granted. 8. OWNERSHIP The foregoing license gives you limited license to use the Software. ZDI and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application that was developed on your behalf), and all copies thereof. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by ZDI and its suppliers. 9. DISCLAIMER OF WARRANTY a. ZDI warrants that the Software is in good working condition and will continuously be supported so that it remains so. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 5 of 10
b. ZDI does not warrant that the software is error-free, timely, reliable, secure, or will operate without interruption and expressly disclaim any warranties as to the materials contained therein, the servers used or the goods or services offered by us. c. The Software is not designed, intended or licensed for use in hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. ZDI specifically disclaims any express or implied warranty of fitness for such purposes. d. If applicable law requires any warranties with respect to the software, all such warranties are limited in duration to Ninety (90) days from the date of delivery. e. No oral or written information or advice given by ZDI, its dealers, distributors, agents or employees shall create a warranty or in ay way increase the scope of any warranty provided herein. f. In the USA, 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 legal rights that vary from state to state. 10. LIMITATION OF LIABILITY a. Neither ZDI nor its suppliers shall be liable to you or any third party for any indirect, special, incidental, punitive, cover or consequential damages (including, but not limited to, damages for the inability to use equipment or access data, loss of business, loss of profits, business interruption or the like), arising out of the user of, or inability to use, the Software and based on any theory of Liability including breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if ZDI or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. b. In the USA, some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from state to state. c. The foregoing limitations on liability are intended to apply to the warranties and disclaimers above and all other aspects of this agreement. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 6 of 10
d. Exclusive Remedy: i. Your exclusive remedy under the preceding is to notify ZDI with a detailed description of the problem. Provided that any non-compliance with the above warranty is reported in writing to ZDI no more than thirty (30) days following delivery to you, ZDI will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you 70% of your purchase price for the Software, at its option. ii. ZDI shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware and/or supporting software configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION. e. Basis of Bargain: The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between ZDI and you. ZDI would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of ZDI' licensors. 11. FORCE MAJEURE Client agrees that it shall not hold Developer or their agents or employees liable for any failure to perform its obligation under this agreement because of Acts of God, nature, or federal, state, or local government agency, war, civil disturbance, labor disputes or shortages, electrical or mechanical breakdowns, technical difficulties, and any other cause beyond Developer's or their agents' or employees' control. 12. THIRD PARTY SOFTWARE The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions will be located in the ZD-CMS Help Documentation and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 7 of 10
13. UPGRADES Upgrades of differing statuses including but not limited to critical, urgent, important and optional will be offered throughout the lifetime of the Software. Installation of these upgrades may be offered from time to time to be installed at your discretion. 14. TERM AND TERMINATION This Agreement takes effect upon your acceptance of the terms of this Agreement and remains effective until terminated by either party in accordance with this Agreement. You may terminate this Agreement at any time by destroying all copies of the Software and Documentation in your possession and giving us prompt notice of same. This Agreement will automatically terminate if you fail to comply with any term or condition of this Agreement. Upon termination of this Agreement, you warrant and represent that you will immediately destroy all copies of the Software and Documentation or other materials provided to you hereunder, if any, that are still in your possession and provide us prompt written assurance of same. 15. CONFIDENTIALITY a. Non Disclosure: You agree and acknowledge that the Software, its algorithms, protocols or interfaces, and the Documentation constitute proprietary and confidential information that belong to us (the "Confidential Information"). You also understand and agree that misuse and/or unauthorized disclosure of our Confidential Information could adversely affect our business. Accordingly, you agree that at all times you will: i. Use and reproduce the Confidential Information only for the purposes of this Agreement and only to the extent necessary for such purpose; ii. Restrict disclosure of the Confidential Information to your employees, consultants or independent contractors with a need to know and iii. Not disclose the Confidential Information to any third party without our prior written approval. Notwithstanding the foregoing, it shall not be a breach of this Agreement for You to disclose Confidential Information if required to do so under law or in a judicial or other governmental investigation or proceeding, provided however, that You give us prior notice of the disclosure sought and You seek all reasonably available safeguards against widespread dissemination prior to such disclosure. b. Remedies: You acknowledge that any violation of this paragraph will cause us immediate and irreparable harm and that the damages which we will suffer may be difficult or impossible to measure. Therefore, upon any actual or impending violation of this paragraph, we shall be entitled to the issuance ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 8 of 10
of a restraining order, preliminary and permanent injunction without bond, restraining or enjoining such violation by you, your successors or assigns or any entity or person acting in concert with you. Such remedy shall be additional to and not in limitation of any other remedy which may otherwise be available to us by law. 16. GENERAL PROVISIONS a. This Agreement contains the complete agreement between you and us with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of ZDI to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. b. This Agreement may be modified only by an Amendment signed by you and us. c. No ZDI dealer, agent or employee is authorized to make any amendment to this AGREEMENT unless such amendment is in writing and signed by a duly authorized representative of ZDI. d. ZDI and other trademarks contained in the Software are trademarks or registered trademarks of ZDI in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize you to use ZDI' or its licensors' names or any of their respective trademarks. e. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. f. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. g. In the event of litigation between you and us concerning the Software or Documentation, the prevailing party in the litigation will be entitled to recover attorneys' fees and expenses from the other party. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 9 of 10
h. This Agreement shall be governed by the internal laws of the State of Nevada, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Clark County, Nevada or the federal courts in the State of Nevada to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. i. All disputes arising out of or in connection with this Agreement shall be submitted to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (the "ICC"). The arbitrator or arbitrators shall be chosen in accordance with the ICC rules. The arbitration proceedings shall take place in Las Vegas, Nevada, Borough of Clark. Unless otherwise agreed between the parties, the language of all arbitration proceedings shall be English. Judgment on the award of the arbitrator (s) may be entered in any court of competent jurisdiction. All questions concerning this Agreement shall be directed to: Zee Designs Inc., P.O. Box 30661, Las Vegas, NV 89173-0661 or zdi@zd-support.com. ZDI Solutions ZD-CMS Software End User License Agreement (EULA) Page 10 of 10