ZNODE SOFTWARE AGREEMENT READ CAREFULLY: ZNODE, INC ("ZNODE") LICENSES THE SOFTWARE (DEFINED HEREIN) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT"). BY SELECTING THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT OR BY COPYING, INSTALLING, UPLOADING, ACCESSING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU AGREE TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN ZNODE AND EITHER YOU PERSONALLY, OR THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACQUIRING THE SOFTWARE. IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT TO THE TERMS OF THIS AGREEMENT: (A) DO NOT COPY, INSTALL, DOWNLOAD, ACCESS OR USE THE SOFTWARE; AND (B) SELECT "I REJECT" AT THE END OF THIS AGREEMENT (WHICH WILL CANCEL THE LOADING OF THE SOFTWARE). COPYING OR USE OF THE SOFTWARE EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE. IF YOU COPY OR USE ALL OR ANY PORTION OF THE SOFTWARE WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF ZNODE, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW. IN SUCH CASE, YOU MAY BE LIABLE TO ZNODE AND ITS LICENSORS FOR DAMAGES, AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES. 1. DEFINITIONS. 1.1 "Administrative Interface" means a user interface used for managing the function of one or more E-commerce Solutions, including but not limited to the creation of and management of products, catalogs, stores, accounts, orders and content. 1.2 "API" means application programming interface. 1.3 "Contract Documentation" means all information comprising the grant of a license to Use the Software to You by ZNODE, including without limitation, pricing agreements, purchase orders and use specifications. Contract Documentation shall be agreed upon by ZNODE in writing in order to be applicable to Your Use of the Software. 1.4 "Edition" means the edition of the Software subject to this Agreement, as set forth and described in Section 2.5 and in Your Contract Documentation. 1.5 "E-commerce Solutions" means one or more electronic commerce applications, or portions thereof, developed by you using the Software, including without limitation, any application supporting multiple brands, multiple catalogs and promotional micro-stores. 1.6 "Image" means any artwork, graphical rendering, clipart, illustration or other design component provided with, comprising an element of or otherwise relating to the Software, whether in graphical, electronic or other digital format. 1.7 "Install" means to place a copy of the Software onto a hard disk or other storage medium through any means (including without limitation use of an installation utility application accompanying the Software). 1.8 "Instance" means a process or occurrence of the Software on a Processor. 1.9 "Network" means a group of computers, servers or other electronic devices, including without limitation, wireless local area networks, wide area networks, satellite service networks, and Internet service networks, which support the Software or any aspect thereof. 1.10 "Permitted Number" means the number of valid licenses issued to you by ZNODE as indicated on Your Contract Documentation (sent to You by e-mail or other means). Unless otherwise set forth in the Contract Documentation, the Permitted Number shall be one. 1.11 "Processor" means the Central Processing Unit (CPU) in a computer. "Processor" refers to one processing unit regardless of the number of cores. 1.12 "Reverse Engineer" includes, without limitation, any act of reverse engineering, disassembling, translating, decompiling, deconstructing or decrypting any information, data or software (including interfaces, protocols and any other data included in or used in connection with the programs that may, or may not, technically be defined as software code), or any method or process of obtaining or converting any information, data or software from one form to another into human-readable form. 1.13 "Server" means a computer that Uses the Software and makes it accessible for Use by other computers on a Network. 1.14 "Software" means all software (including programs, tools, sample code, templates, libraries, and interfaces, including API's and Updates), API's, information, files, data, User Documentation, and other materials, whether tangible or intangible, in whatever form or medium, provided to You at any time, either by way of downloading from a ZNODE website or a ZNODE affiliate website or otherwise provided to You, for any development purposes (unless such materials are provided pursuant to a separate license agreement for such materials by ZNODE and/or its affiliates). Software includes, without limitation, ZNODE(r) Multifront(tm), ZNODE(r) Marketplace(tm) and ZNODE(r) Store Multiplier(tm). 1.15 "Subscription Period" means, with respect to a subscription-based license, the period beginning upon payment of a particular subscription fee and ending on the last day of the subscription period set forth in the Contract Documentation. Unless otherwise set forth in the Contract Documentation, the Subscription Period for all subscription-based licenses shall be 12 months in duration. 1.16 "Third Party Components" means software, interfaces, firmware and any Image licensed by ZNODE from a third party for incorporation into the Software and distributed as an integral part of the Software. 1.17 "Updates" means bug fixes, service packs, hot fixes, updates, upgrades, enhancements, modifications, and new releases or versions of the Software. 1.18 "Use" means access, Install, download, copy or otherwise benefit from using the functionality of the Software. 1.19 "User Documentation" means the technical explanatory printed or electronic materials that ZNODE makes available together with the Software, or after You acquire or Install the Software, including without limitation, license specifications, activation codes, license files, instructions on how to use the Software, and technical specifications. 1.20 "You" means: (a) you personally (i.e., the individual who reads and is prompted to accept this Agreement) if you acquire the Software for yourself; or (b) the company or other legal entity for whom you acquire the Software, if you acquire the Software for a company or other legal entity. 2. LICENSE AND LICENSE RESTRICTIONS. 2.1 Grant of License. Subject to the terms and conditions herein, ZNODE grants You a personal, non-sublicensable, non-exclusive, non-transferable (except as expressly provided herein), limited license to Install and Use the Software, in accordance with the applicable Contract Documentation, solely in accordance with the following license parameters: Except in the case of a Development License (see below), You may Install and Use one (1) copy of the Software only on the Permitted Number of Servers, for Use only on the Permitted Number of Processors, solely for purposes of developing, testing, implementing, debugging and maintaining one or more E-commerce Solutions. You are permitted to make modifications and/or enhancements to the Software as necessary to support one or more E-commerce Solutions, and any such modifications and/or enhancements will be owned by You, subject to the underlying license to use the Software. ZNODE's license grant is conditioned on Your continuous compliance with all license limitations and restrictions described in this Agreement. If you violate any such limitations or restrictions, the license grant will automatically and immediately expire. The license descriptions in this Section 2 define the scope of rights that ZNODE grants to You. Any Use of the Software outside the scope of the applicable license grant constitutes an infringement of ZNODE's intellectual property rights as well as a material breach of this Agreement. 2.2 License Term. Subject to the terms and conditions of this Agreement, if the Contract Documentation specifies a perpetual license, then the license to use the Software is perpetual. Subject to the terms and conditions of this Agreement, if the Contract Documentation specifies a subscription-based license, then the license to use the Software shall expire at the end of the Subscription Period unless You renew the subscription for additional period(s) and pay all applicable license fees. 2.3 Updates. ZNODE may make available one or more Updates to the Software. Such Updates shall be subject to the terms and conditions of this Agreement. 2.4 Components. The Software is licensed to You as a single product, and the components comprising the Software may not be separated for distribution or use on more than the Permitted Number of file Servers or Processors unless expressly permitted by ZNODE in the applicable Contract Documentation. 2.5 License Parameters. Your Contract Documentation indicates your license as applicable to one of the following Editions, which shall be subject to the restrictions outlined below: 2.5.2 Multifront(tm) - Unless otherwise specified in the Contract Documentation, the Software is licensed to You for Use with an unlimited number of Internet domains, on a single Processor, in a single Instance. You must purchase additional licenses in order to Use the Software on additional Processors or to run additional Instances. Further, all Administrative Interfaces must carry the ZNODE branding that is provided with the Software which includes, but is not limited to, the ZNODE(r) logo, copyright notice and POWERED BY ZNODE(r) logo and text. 2.5.3 Marketplace(tm) - Unless otherwise specified in the Contract Documentation, the Software is licensed to You for Use with an unlimited number of Internet domains, on a single Processor, in a single Instance. You must purchase additional licenses in order to Use the Software on additional Processors or to run additional Instances. Further, all Administrative Interfaces must carry the ZNODE branding that is provided with the Software which includes, but is not limited to, the ZNODE(r) logo, copyright notice and POWERED BY ZNODE(r) logo and text. 2.5.4 Store Multiplier(tm) - Unless otherwise specified in the Contract Documentation, the Software is licensed to You for Use with an unlimited number of Internet domains, on a single Processor, in a single Instance. You must purchase additional licenses in order to Use the Software on additional Processors or to run additional Instances. Further, Software splash screens must carry the POWERED BY ZNODE(r) logo and text that is provided with the Software. 2.6 License Types. The Contract Documentation may specify one or more of the following types of license, with the following features attributable to each one: 2.6.1 Production License. Allows access to the Software on a Server for conducting day-to-day business activities in furtherance of developing one or more E-Commerce Solutions. 2.6.2 Demo License. Allows access to the Software on a Server only for Your demonstration purposes. 2.6.3 Test License. Allows access to the Software on a Server only for Your development, verification and testing purposes. 2.6.4 Development License. Allows access or Use of the Software only from a stand-alone, local user station on which it is installed. The Software may be installed on as many local user stations within your organization's internal Network as are desirable to You, but the Software shall not be installed on a Server or external Network. 2.7 Maintenance & Support. ZNODE provides support services free of charge within 30 days of Your initial purchase, or otherwise as set forth on our website (www.znode.com) from time to time. You also may purchase an Annual Maintenance subscription which entitles you to receive Updates for the Software free of additional charge, together with up to five (5) e-mail customer service and support incidents. Annual Maintenance is charged at 20% of the current product license fee or subscription price. Annual Maintenance service renews automatically from year-to-year on the anniversary date of Your license purchase. ZNODE support will send you an invoice for such annual renewal prior to the anniversary date each year. If You cancel Annual Maintenance, You will not be entitled to a refund for any maintenance fees paid for preceding periods, but automatic renewal of Annual Maintenance will thereafter be terminated. If You fail to pay the annual maintenance invoice, ZNODE reserves the right to deny further maintenance or support until it is paid. You may cancel Annual Maintenance service by providing ZNODE with written notice (visit our website for the notice address) prior to the anniversary date in any year after Your purchase. Please visit our website at www.znode.com/support/ for more details on maintenance and technical support. 2.8 Use of Images. Each Image is provided with and incorporated into the Software for demonstration and illustration purposes only. Each Image is protected by United States and international copyright laws and treaties. ZNODE and its licensors own all rights, including copyrights, in and to each Image. So long as You comply with the terms of this Agreement, ZNODE grants you a personal, non-exclusive, non-transferable right to use the Images solely in connection with Your Use of the Software. ZNODE reserves the right to provide Updates the Software with different release versions which may change or modify any Image in any manner in which ZNODE determines to be necessary or desirable. No Image or any digital files containing any Image may be unincorporated from the Software or template in which such Image is incorporated. You may not copy or otherwise use any Image except as expressly set forth in the foregoing Section 2.8. 3. PROHIBITED ACTIONS. 3.1 Prohibited Actions. ZNODE does not permit any of the following actions, and You acknowledge that such actions shall be prohibited: 3.1.1 Use. You may not Install, Access or otherwise copy or use the Software, any Image or the User Documentation except as expressly authorized by this Agreement. 3.1.2 Reverse Engineering. You may not Reverse Engineer the Software or any Third Party Components. 3.1.3 Transfers. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software, any Image or the User Documentation, or any rights granted under this Agreement, to any other person without the written consent of ZNODE, except that transfers to Your affiliates are permitted without such consent so long as prior written notification of such transfer has been provided to ZNODE on ZNODE's then-current form of License Transfer Request, available at www.znode.com. 3.1.4 Notices. You may not remove, alter, or obscure any proprietary notices, labels, attributions or marks from the Software, any Image or the User Documentation. 3.1.5 Circumvention. You may not utilize any equipment, device, software or other means designed to circumvent or remove any form of copy protection used by ZNODE in connection with the Software, or use the Software together with any, authorized code, serial number, or other copy protection device not supplied by ZNODE. 4. ALL RIGHTS RESERVED. Except as expressly provided in this Agreement, all rights, title ownership and interest, including without limitation copyrights, in and to the Software, each Image and the User Documentation and any authorized copies made by You remain with ZNODE and/or its licensors. The structure, organization and code of the Software are valuable trade secrets of ZNODE and its licensors, and You shall keep such trade secrets confidential. The Software, each Image and the User Documentation are licensed, not sold. 5. LIMITED WARRANTY AND DISCLAIMERS. 5.1 Limited Warranty. ZNODE warrants that, as of the date on which the Software is delivered by ZNODE and for ninety (90) days thereafter, the Software will provide the features and functions generally described in the Contract Documentation and that the media on which the Software are furnished, if any, will be free from defects in materials and workmanship, all as determined by ZNODE in ZNODE's sole and absolute discretion. ZNODE's entire liability and Your exclusive remedy under the limited warranty provided in this Section 5.1 will be, at ZNODE's option, to attempt to correct or work around errors (through issuance of Updates as set forth in Section 2.3 or otherwise), to replace the defective media on which the Software is furnished, if any, or to refund the license fees paid by you and terminate this Agreement. Such refund is subject to the return of defective media, if any, and User Documentation to ZNODE and confirmation by ZNODE of your compliance with the terms and conditions of this Agreement and your payment of such license fees, all of which must occur within ninety (90) days from the date of Your receipt of the Software. If ZNODE exercises its option hereunder to attempt to correct errors or to replace defective media, such remedy will be provided during ZNODE's normal business hours and will be processed within ZNODE's normal processing and release cycle. 5.2 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 5.1 HEREOF, ZNODE MAKES AND YOU RECEIVE NO EXPRESS WARRANTIES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE OR ITS FUNCTIONALITY IN THE CONTRACT DOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. IN ADDITION, ZNODE SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ZNODE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE HAS ANY SECURITY FEATURES. 6. LIMITATION OF LIABILITY. IN NO EVENT SHALL ZNODE OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, DATA OR COST OF COVER. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF ZNODE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SOFTWARE PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 6 SHALL APPLY TO ANY DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, EVEN IF ZNODE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. 7. INDEMNIFICATION. 7.1 You agree to indemnify and hold harmless ZNODE, its licensors and their respective officers, directors, managers, employees, agents, successors and assigns, from and against any costs, expenses or claims (whether from you or third parties) of any kind or nature arising from or relating to Your Use of the Software, any Image and the User Documentation, excepting therefrom claims asserted by You under the limited warranty in Section 5.1. 7.2 ZNODE agrees to indemnify, defend and hold You harmless from and against any claim, suit or proceeding alleging that Your Use of the Software infringes the patent, copyright, trademark, trade secret or other intellectual property rights of any third party, provided that You (i) provide ZNODE with prompt written notice of the claimed infringement and (ii) provide ZNODE with all necessary information and assistance to perform the above. If any claim for which ZNODE is obligated to defend You has occurred, ZNODE may, at ZNODE's option and sole expense, procure for You the right to continue using the Software, replace or modify the same so that it becomes non-infringing or, if neither of the foregoing is reasonably possible, the license for the Software shall terminate and ZNODE shall refund to You all license fees paid by You under this Agreement. 8. GENERAL. 8.1 No Assignment; Insolvency. Except as expressly provided herein, this Agreement and any rights hereunder are non-assignable and any purported assignment shall be void. This Agreement and the licenses granted hereunder shall terminate without further notice or action by ZNODE if You become bankrupt or insolvent or make an arrangement with Your creditors to go into liquidation. 8.2 Choice of Law; Forum. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by Ohio law without reference to conflict of laws principles. The parties hereby consent to the courts located in Franklin County, Ohio as having exclusive jurisdiction and venue for resolution of any and all disputes arising under or related to this Agreement. 8.3 Entire Agreement. This Agreement and the applicable Contract Documentation constitute the enter agreement between us and supersede any other previous or contemporaneous communications, agreements, representations, or advertising with respect to the Software, each Image and the User Documentation. Any modifications to this Agreement shall be invalid unless made in a duly-executed writing. 8.4 Severability. If and to the extent that any provision of this Agreement is held illegal, invalid, or unenforceable, in whole or in part, under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid or unenforceable to the extent of its illegality, invalidity or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way effect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction. 8.5 Audits. To insure compliance with this Agreement, You agree that upon reasonable notice, ZNODE or its authorized representative shall have the right to inspect and audit Your Installation and Use of the Software, each Image and the User Documentation. If such inspections or audits disclose that You have Installed, Used or permitted the Use of the Software, any Image or the User Documentation in a manner that is not permitted under this Agreement, then ZNODE may terminate this Agreement immediately, and You are liable to pay for any unpaid license fees as well as reasonable costs for audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to ZNODE for violation of this Agreement.
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