END USER LICENSE AGREEMENT
This End-User License Agreement (“Agreement
” or “EULA
”)is a legal agreement between you (either an individual or a single entity) (“Licensee
” or “you
”) and XL TECHNOLOGIES, LLC (“XLT
”) for the XLT software that may accompany this EULA, which includes computer software and "online" or electronic documentation, or Internet-based services ("Software
"). However, if you are using an Evaluation License as or on behalf of an entity, and/or have registered for any other license as or on behalf of an entity, such as a corporation, partnership, limited liability company or other entity, the term "you" or “Licensee” used herein refers to the entity which will be bound by this Agreement. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE.
This Agreement governs the terms and conditions of the Licensee's access and use of Zendio
"), and is made between you and XL Technologies, LLC, P.O. Box 2747, Sarasota, Florida 34230. You represent and warrant that you have power and authority to enter into this Agreement on behalf of the entity. This Agreement does not address any third-party software separately licensed to you.
By clicking the "I accept the Agreement
" option during installation and/or by accepting the Agreement on the online order form and/or by using Zendio, you confirm your acceptance of, and agree to be bound by, this Agreement. If you do not agree to this Agreement or if you do not understand it, do not purchase, install, or use Zendio.
" means the version of Zendio in executable form and documentation, including operation in trial mode, to which you are obtaining a no-charge limited evaluation license.
" means an authorized account for the trial version of Zendio during a limited time period. The Trial Mode version of Zendio is available for download and enrollment from the public part of the Zendio website.
" means loading, installing, executing, displaying, performing and/or transmitting the Software for your internal personal/business purposes, and not for distribution or resale.
" means the natural person (not an entity such as an Organization) to whom an email message is sent. If an email account is not assigned to a natural person, then the Organization's corresponding service or department constitutes the "Recipient"; for example, the Sales Department of an Organization would be the Recipient of the address if more than one Staff Member is responsible for replying to messages sent to the email account.
" means email messages, email files, mailbox files, mail folders, mail profiles, mail stores, and/or mail databases.
" means an Organization's work location within a geographical area whose radius is 50 miles.
2. Software License Grants
2.1. Evaluation License
Subject to the terms and conditions of this Agreement, XLT hereby grants you a nonexclusive, nontransferable limited license to Use the Software in Trial Mode without charge and for evaluation purposes only. This evaluation license may not be sublicensed. Files created by the Software in Trial Mode are for evaluation purposes only and must be destroyed once evaluation is complete. By accepting this Agreement you also accept the limitations described on the Zendio website, http://www.zendio.com.
2.2. Third Party Licenses
The Software includes third party software which may only be used as incorporated into and used by the Software (“Related Software”) and may not be separated, decompiled or severed from the Software to any degree. Use of the Related Software is subject to the restrictions and limitations as set forth herein and/or as applicable third party licenses may dictate, including but not limited to the Apache License Version 2.0, January 2004, which can befound at http://www.apache.org/licenses/LICENSE-2.0
2.3. Single-User License for One E-Mail Account
For so long as you are not in breach of any terms set forth herein and you have paid all applicable User Fees, XLT hereby grants you the right to Use the Software in accordance with the terms and provisions herein. The license is limited to one user e-mail account and may only be used to process Mail belonging to such person.
2.4. License Restrictions
THE SOFTWARE IS LICENSED, NOT SOLD. THIS AGREEMENT ONLY GIVES YOU THE RIGHTS ACCORDING TO THE SPECIFIED LICENSE TYPE SET FORTH HEREIN; XLT RESERVES ALL OTHER RIGHTS. MORE SPECIFICALLY AND WITHOUT LIMITATION, YOU MAY NOT, WHETHER IN WHOLE OR IN PART: (A) DISTRIBUTE OR COPY, MODIFY, ADAPT, TRANSLATE, RENT, LEASE OR SUBLICENSE (INCLUDING OFFERING THE SOFTWARE TO THIRD PARTIES ON AN APPLICATION SERVICE PROVIDER, WEB SERVICE OR TIME SHARING BASIS); (B) REVERSE ENGINEER, DECOMPILE, OR DISASSEMBLE THE SOFTWARE; (C) ASSIGN, LOAN, RESELL, TRANSFER, DISTRIBUTE OR OTHERWISE MAKE ACCESSIBLE THE SOFTWARE; (D) MODIFY, DECOMPILE, DISASSEMBLE OR REVERSE ENGINEER THE SOFTWARE; (E) REMOVE OR MODIFY ANY LEGAL NOTICES IN THE SOFTWARE; OR (F) MAKE COPIES OF THE SOFTWARE, EXCEPT AS SET FORTH HEREIN.
It is your responsibility to make a back-up copy of the Software installation file and your registration details and passwords if any, off your computer and place these in a safe location that is not accessible to other users.
3. FEES AND PAYMENT
3.1.Once you have completed your sign-up and trial period, you shall be charged and shall pay monthly licensing/subscription fees ("Monthly Fees"). You will be required to submit Monthly Fee payments for the Services (unless you have already provided for and authorized the Monthly Fee payments, or provided the means of the Monthly Fee payments, such as credit card information and authorization to charge the Monthly Fees). You may also purchase the Services for a year in advance by paying the applicable Monthly Fees for such 12 month period. Access to the Services will be disabled until payment is received. All accounts are subject to a one-time set-up fee. This fee is non-refundable. The Monthly Fee and set-up fee is referred to as “User Fees”.
3.2. Payment for Services will be made by a valid credit card accepted by XLT. Fees are payable in US dollars. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize XLT to charge to your credit card for such amounts on a regular monthly basis. If XLT is for any reason unable to effect automatic payment via your credit card, XLT will attempt to notify you via email and your XLT account will be disabled until payment is received. Amounts paid for the Services are not refundable except those noted in section 5.
4. SERVICES, AND CUSTOMER SUPPORT / SOFTWARE MAINTENANCE
4.1.The Services are provided subject to this Agreement, as it may be amended by XLT, and any guidelines, rules or operating policies that XLT may establish and post from time to time (the "Agreement"). By posting updated versions of the Agreement on Service-related websites and/or at the Zendio.com website, or otherwise providing notice to you, XLT may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services in its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service-related websites.
4.2. The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services.
4.3. You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form.
4.4. You are responsible for maintaining the security of your account, passwords, and files and for all uses of your account and of the Services in your name. As such, you agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to XLT for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify XLT immediately at email@example.com.
4.5. XLT follows generally accepted standards to protect the information submitted to us, including but not limited to your personal information, the email addresses of recipients and information contained within the subject line of any email ("Communications"), both during transmission and once we receive it. No method of electronic transmission or storage is 100% secure, therefore, we cannot guarantee its absolute security. XLT will not sell your personal information or Communications to third parties. We may use certain trusted third party companies and individuals to help us provide, analyze, and improve the Service (including but not limited to data storage, maintenance services, database management, web analytics, payment processing, and improvement of the Service’s features). These third parties may have access to your information only for purposes of performing these tasks on our behalf and under obligations similar to those in these terms of service agreement. XLT and its designees will be free to use the Communications for any and all XLT internal purposes necessary to providing the Zendio service. You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any state, federal, or international law.
4.6. You acknowledge that the Zendio web site contains information, software, photos, video, text, graphics, music, sounds or other material (collectively, "Content") that are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights. All Content is copyrighted as a collective work under the U.S. copyright laws, and XLT owns a copyright in the selection, coordination, arrangement and enhancement of such Content. The XLT name and logo are trademarks of XLT. All other trademarks appearing on the XLT website or with the Services are trademarks of their respective owners. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part. Any software provided by XLT, the software, including any files, images incorporated in or generated by the software, and data accompanying the software are licensed to you by XLT in accordance with the terms herein. XLT does not transfer title to the Software to you. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
4.7. XLT provides customer support for the most current version of Zendio, which is generally provided free of charge, by email or telephone, to the extent that XLT at its sole discretion shall determine to be reasonable. XLT has no obligation to provide customer support for discontinued products and old Software versions.
4.8. You bear all responsibility for ensuring that email replies from XLT can reach you. XLT will not be held responsible for its emails to you that are blocked by your Internet service provider (ISP), or your email server, or your email program's spam/junk-mail filters. If necessary, you will provide an alternative email address that can receive emails from XLT.
5. REFUND POLICY
The Software in trial mode is available for download free of charge from the Zendio web site. It is intended to allow potential customers to evaluate before purchase, whether the Software is compatible with their computer systems, and will satisfy their requirements. As a result, all sales are final and refunds are provided only for accidental duplicate orders. Refunds will only be made to the credit card account through which the original purchase was made. Ordering a software license signifies your acceptance of this Refund Policy.
The Software is proprietary to XLT. The Software is licensed, not sold, to you notwithstanding any reference herein to "purchases." You acknowledge and agree that: (a) the Software is protected under U.S. copyright and other national and international copyright laws; (b) XLT and its licensors retain all copyrights and other intellectual property rights in the Software;
(c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by XLT ;
(d) you acquire no ownership or other interest (other than your license rights) in or to the Software; and
(e) XLT owns all copies of the Software, however made. You agree that you will not, at any time, contest anywhere in the world XLT’s ownership of or rights in the Software. You have no rights hereunder to use any trademark or service mark belonging to XLT.
The Software which you use may automatically download and install updates from time to time from XLT. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit XLT to deliver these to you) as part of your use of the Services.
8.1. You shall only use the Software in strict compliance with all applicable laws and regulations and your obligations under this Agreement. Without limiting the generality of the foregoing, you shall not take any action that would violate, or cause XLT to be in violation of, any applicable law of the United States or any other jurisdiction including but not limited to the U.S. Foreign Corrupt Practices Act and all import and export laws, regulations and restrictions of the United States or any foreign agency or authority.
8.2. In addition to the foregoing, You may not use:
1. The Software in connection with generating or facilitating unsolicited commercial email ("spam"). Such activity includes, but is not limited to:
(a) sending email in violation of the CAN-SPAM Act or any other applicable anti-spam law
(b) imitating or impersonating another person or his, her or its email address, or creating false accounts for the purpose of sending spam
(c) sending unauthorized mail via open, third-party servers
(d) sending emails to users who have requested to be removed from a mailing list
(e) selling, exchanging or distributing to a third party the email addresses of any person without such person's knowing and continued consent to such disclosure
(f) sending unsolicited emails to significant numbers of email addresses belonging to individuals and/or entities with whom you have no preexisting relationship
2. Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content
3. Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature
4. Transmit content that may be harmful to minors
5. Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any email
6. Illegally transmit another's intellectual property or other proprietary information without such owner's or licensor's permission.
9. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
THE SOFTWARE IS PROVIDED ON AN "AS IS" AND WITH ALL FAULTS BASIS. XLT DISCLAIMS AS FAR AS LEGALLY PERMISSIBLE ALL WARRANTIES RELATING TO THE SOFTWARE, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY OR NON-INFRINGEMENT.
WITHOUT LIMITING ANY OTHER PROVISION HEREIN, XLT DOES NOT WARRANT THAT THE SOFTWARE WILL TRACK ALL EMAILS OR OTHER ELECTRONIC COMMUNICATIONS WITH ANY DEGREE OF CERTAINTY, GUARANTY OR WARRANTY. NOT DOES XLT WARRANT OR GUARANTY THAT THE SOFTWARE IS COMPATIBLE ON ALL OR ANY PARTICULAR COMPUTER, SYSTEM AND/OR CLIENT. XLT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, SECURE OR ERROR-FREE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
XLT SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF XLT OR ANY SUPPLIER, AND EVEN IF XLT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PERSON USING THE SOFTWARE BEARS ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE.
THE ENTIRE LIABILITY OF XLT, AND YOUR EXCLUSIVE REMEDY
, WITH RESPECT TO THE USE OF THE SOFTWARE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, FOR USE OF THE SOFTWARE. YOU HEREBY RELEASE XLT AND SUCH OTHER PERSONS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SOFTWARE OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
YOU ARE SOLELY RESPONSIBLE FOR SELECTION, INSTALLATION AND LAUNCH OF THE SOFTWARE AND FOR BACKING UP YOUR DATA AND FILES, AND HEREBY RELEASE XLT FROM ANY LIABILITY OR DAMAGES DUE TO THE LOSS OF ANY SUCH DATA OR FILES.
XLT IS NOT LIABLE FOR ANY INAPPROPRIATE OR ILLEGAL USE OF THE SOFTWARE.
The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10.1 Information Collection and Use Practices
10.1.1 XLT does not save, make a copy of or otherwise store any electronic mail message you send using the Zendio. All electronic mail messages sent using the Zendio are confidential in accordance with generally accepted standards of electronic mail usage.
10.1.2 From time to time, XLT may use your personal information for internal marketing and promotional purposes, and to inform you of updates and changes to Zendio services. Additionally, XLT will receive and retain for the purpose of servicing your account method of payment information (e.g. credit card information, PayPal, etc.).
10.1.3 If you have registered with XLT for the Zendio service, you have provided us with your first and last name, your email account and password. This information will be collected and retained as part of the registration process and maintenance of your account.
10.1.4 When using Zendio, your subject line and recipients’ email addresses, and links go to our servers. Actual message content does not go to XLT's computers, therefore, no person reads your email, nor is any personal information collected or stored in this process.
10.1.5 Subject to the limitations in the following paragraph, XLT will never disclose your email address to anyone outside the Service without your prior instruction. Except as a standard or necessary part of providing the Service, XLT will never disclose to outside third parties any email addresses you send or receive during your use of the Service without your prior instruction.
10.1.6 Some or all of the above paragraph may not apply in the event that i) XLT is required by law to act otherwise; or ii) XLT in the good faith and belief that action is necessary to protect and defend XLT's rights or property acts otherwise; or iii) when necessary to protect the personal safety of Members or the public. Using the Service to send an email is one such example of "your prior instruction" for the purpose of the prior paragraph.
10.1.7 As part of collecting and utilizing the information as referenced above, it may be necessary for XLT to place certain cookies on your computer to solely accomplish this limited objective. By registering to use Zendio, you are consenting to XLT placing such cookies on your computer system.
11. GOVERNING LAW /JURISDICTION
If you acquired this Software in the United States, this EULA is governed by the laws of the State of Florida, except that conflict-of-laws provisions shall not be invoked in order to apply the laws of any other state or jurisdiction. Any Action arising out of or relating hereto, or the interpretation, performance or breach hereof, shall be instituted in the United States District Court for the Middle District of Florida or any court of the State of Florida located in Sarasota County, and each party irrevocably submits to the jurisdiction of those courts and waives any and all objections to jurisdiction or venue that it may have under the Laws of the State of Florida or otherwise in those courts in any such action.
You may terminate this Agreement at any time only by emailing XLT Customer Service at firstname.lastname@example.org. There are no refunds for any User Fees paid. XLT may terminate this Agreement or the Services, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. XLT shall have no liability to you or any third party because of such termination or action.
In addition to the foregoing, XLT may terminate this Agreement at any time upon default by you of the license provisions of this Agreement. Notwithstanding the foregoing, XLT has the right to immediately terminate the License and your access to the Software in the event you fail to pay all Fees when due. Except for Section 2, all provisions of this Agreement shall survive termination of this Agreement.
All sections of this Agreement that by their nature that are intended to survive termination will survive termination, including, without limitation, ownership, warranty and limitation of liability.
13. SEVERABILITY CLAUSE
If any provision of this Agreement is or becomes ineffective or if there is an omission from this Agreement, this does not affect the legal validity of the remaining provisions. The ineffective provision will be replaced by an effective provision that is as close as possible in economic terms to the provision wanted by the parties. The same procedure applies in the case of an omission.
You shall not assign, delegate or sublicense any of your rights or obligations under this Agreement, by operation of law or otherwise, without prior written consent of XLT, and any attempt without such consent shall be void. Subject to the preceding sentence, this Agreement binds and benefits the permitted successors and assigns of the parties. XLT may change the terms, conditions and pricing relating to the future licensing of its Software and other intellectual property rights, including this Agreement, from time to time. No waiver will be implied from conduct or failure to enforce rights nor is it effective unless in writing signed on behalf of the party against whom the waiver is asserted.
There are no third-party beneficiaries to this Agreement. XLT is not bound by additional and/or conflicting provisions in any purchase order or other correspondence unless expressly agreed in writing. This Agreement is the complete and exclusive statement of agreement between the parties as to its subject matter and supersedes all proposals or prior agreements, verbal or written, advertising, representations or communications concerning the Software.