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The Terms Of Service/Software License Agreement are displayed
during the installation of the Software. The latest version
is shown below.
PROPEL SOFTWARE CORPORATION
TERMS OF SERVICE/SOFTWARE LICENSE AGREEMENT
READ THE TERMS OF THE FOLLOWING TERMS OF SERVICE AND SOFTWARE
LICENSE AGREEMENT CAREFULLY. INDICATE YOUR ACCEPTANCE OF THESE
TERMS BY CLICKING THE "ACCEPT" BUTTON, IF SHOWN
BELOW, OR CLICKING THE "COMPLETE ORDER" BUTTON AS
PROMPTED DURING THE SUBSCRIPTION PROCESS. IF YOU DO NOT AGREE
TO ALL THESE TERMS, SELECT THE "NO" BUTTON IF SHOWN
BELOW, OR DO NOT COMPLETE THE SUBSCRIPTION PROCESS. BY CLICKING
THE "ACCEPT" BUTTON, CLICKING THE "COMPLETE
ORDER" BUTTON, OR BY INSTALLING, COPYING OR OTHERWISE
USING ANY PART OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THE
TERMS OF SERVICE AND THE SOFTWARE LICENSE AGREEMENT.
Propel Accelerator Client Software
TERMS OF SERVICE
SERVICE DESCRIPTION; ACCEPTANCE OF TERMS THROUGH USE
The Propel Acceleration Service ("Service") is being
provided to You, the end-user ("You"), by Propel
Software Corporation ("Propel"). The Service is
a subscription-based content acceleration service that consists
of client software installed on Your PC as an independent
local proxy that communicates with a server network infrastructure
on the Internet. In combination, these components are designed
to use transformation, compression, and caching techniques
to speed up the delivery of HTTP-requested data from Web sites
on the World Wide Web to Your PC. The client-server solution
is designed to transparently accelerate the delivery of both
static and dynamically generated text (completely loss-less)
and graphics (You can control level of lossiness) from Web
sites. The client software on Your PC connects to a server
network infrastructure that is deployed on the Internet and
operated as a managed service by Propel and/or other service
providers. The Service does not enable You to access the Internet.
You must separately have an Internet access service. Your
PC should have an Internet connection running between 14.4
and approximately 400 kbps (kilobits per second). Typically
this means a dial-up modem, however, some slow DSL and ISDN
systems would qualify. [Note: systems operating at a speed
above approximately 400 kbps will not be accelerated.] Propel
may at any time without notice or liability restrict the use
of the Service or limit its time of availability in order
to perform maintenance activities. By using the Service, You
agree to all terms, conditions, and notices contained or referenced
herein (the "Terms of Service"). If You do not agree
to the Terms of Service please do not use this Service. Propel
reserves the right, at its discretion, to update or revise
the Terms of Service/Software License Agreement without notice.
Please check the Terms of Service/Software License Agreement
at http://accelerator.propel.com/tos_sla periodically for
changes. Your continued use of the Service following the posting
of any changes to the Terms of Service/Software License Agreement
constitutes acceptance of such changes.
USER CONDUCT/ACCEPTABLE USE POLICY
You agree not to use the Service for any unlawful or improper
purpose. You shall not allow any other person to access the
Service provided to You pursuant to these Terms of Service.
You may use the Service on only one computer system at a time.
Propel's goal is to provide a high quality service to our
Customers. To help ensure our high standards are met, Propel
has established certain responsibilities regarding the use
of the Service. You agree to adhere to the Propel Acceptable
Use Policy.
You can locate the Acceptable Use Policy ("Acceptable
Use Policy") at http://accelerator.propel.com/aup. The
Acceptable Use Policy describes activities which Propel considers
to be violations of the Terms of Service and which are therefore
prohibited. The examples listed are not exhaustive and may
change from time to time. They are provided solely for guidance
to Propel customers. If You are unsure whether any contemplated
use or action is permitted, please submit email via online
form at http://www.propel.com/email for assistance.
You agree:
- That You are entitled to contract without the consent of another
person;
- To review any Terms of Service/Software License Agreement
updates Propel provides. Your continued use of the Service
shall be construed as Your acceptance of the updated Terms
of Service/Software License Agreement terms;
- To provide to Propel, Your accurate and truthful registration
information (such as Your name, address, telephone number
and credit card information) and to keep current all registration
information, using the Service;
- Not to assign, or otherwise transfer, these Terms of Service/Software
License Agreement or Your rights under it, delegate Your obligations,
or resell the Service. Any attempt to do so is void;
- That You are responsible for the results obtained from the
use of the Service;
- Not to introduce viruses, worms, harmful code and/or Trojan
horses on the Internet;
- To obtain Internet access service;
- To obtain, install and maintain suitable equipment and software
as necessary to access the Service;
- Not to use the Service for any criminal or illegal activities,
or post any information that might be legally actionable;
- Not to use the Service for spamming or flaming, to hack or
otherwise obtain unauthorized access;
- To be responsible for accurately addressing information sent
using the Service;
- To obtain all required permissions if You use the Service
to receive, upload, download, display, distribute, or execute
programs or perform other works protected by intellectual
property laws, including copyright and patent laws;
- To comply with all applicable laws, regulations, or conventions,
including those related to data privacy, international communications,
and exportation of technical or personal data;
- Not to delete or alter author attributes or copyright notice,
unless expressly permitted in writing by the author or owner;
- To give all required notices under these Terms of Service/Software
License Agreement in the manner set forth in the Notices section
below;
- To pay any taxes, including personal property taxes, resulting
from Your use of the Service provided under these Terms of
Service. This does not include taxes based on Propel's net
income;
- To pay charges for the Service;
- To promptly notify Propel if You suspect unauthorized use
of the Service. Until notified, You remain responsible for
unauthorized use. Liability for use of a credit, debit, or
charge card remains subject to Your agreement with Your card
issuer;
- To provide Propel with the requested identification in connection
with security matters;
- Not to forward or otherwise propagate chain letters and pyramid
schemes, whether or not the recipient wishes to receive such
mailings;
- Not to advocate, promote or otherwise encourage violence against
governments, organizations, groups or individuals or post,
disseminate or transmit any content that provides instruction,
information or assistance in causing or carrying out such
violence;
- Not to post, disseminate or transmit any content that sells
any products or services that are unlawful in the location
at which the content is posted or received;
- Not to post, disseminate or transmit any content that promotes,
markets, or otherwise directs traffic (directly or indirectly)
to a Web site hosted by the Service (including, but not limited,
to the Subscriber's particular Web site) through the use of
unsolicited commercial e-mail or spam;
- Not to attempt to interfere with the Service to any user,
host or network. This includes "denial of Service" attacks, "flooding" of
networks, deliberate attempts to overload the Service and
attempts to "crash" a host;
- Not to use any kind of program/script/command designed to
interfere with another Subscriber's terminal session.
- For the purposes of USENET use, You shall not:
- post the same or similar messages to large number of newsgroups
(excessive cross-posting or multiple-posting, also known as "USENET
spam").
- post a message whose subject or content is considered unrelated
to the subject matter of the newsgroup in which it is posted;
- post chain letters of any type;
- post binary files to newsgroups not specifically named for
the purpose;
- cancel or supersede posts other than the Subscriber's own,
with the exception of official newsgroup moderators performing
their duties;
- forge header information. This includes attempting to circumvent
the approval process for posting to a moderated newsgroup
or attempting to evade local or remote spam filters.
- To indemnify Propel for any damages or costs associated with
Your breach or failure to perform Your responsibilities hereunder.
Please be advised that Propel intends to exercise its rights
under the Terms of Service to immediately terminate the Service,
without notice, to any account that has been used in a manner
that is disruptive or is otherwise in violation of the Terms
of Service.
Charges
Except for usage of the Service during a free trial period,
if applicable, You shall incur those Service charges that
You agree to in conjunction with Your subscription to the
fee-based Service, for use of the Service.
Propel may, at Propel's option, elect to accept Your credit
card for payment. If You have provided Propel with Your credit
card for payment and Propel has accepted this mode of payment,
all charges that You incur for use of the Service will be
applied to the credit card number You provide to Us. Should
You decide not to use the Service, You must cancel Your registration
or You will be invoiced for the relevant charges for the Service.
You are responsible for providing and updating all credit
card information required for Propel to apply valid charges
to the card. Propel may take commercially reasonable actions
to validate Your credit card. Should this credit card number
expire or should Propel otherwise be unable to debit valid
charges to this credit card number, Propel may immediately
and without notice withdraw Your access to the Service. Any
terms varying from this Terms of Service in any order, written
or electronic communications from You are void.
Refunds
Applies only to subscribers who subscribed to the Service
directly from Propel and paid the Service subscription fee
using a credit card.
If You signed up under Propel's seven (7)-day money back guarantee
program using a credit card, cancellation of Your subscription
within the first seven (7) days of Your subscription will
result in a full refund of Your subscription payment if Your
credit card has been charged. For any period after such initial
seven (7) day period and for subscribers who did not sign
up under Propel's seven (7)-day money back guarantee program
the following shall apply.
A. Refund Policy: Monthly Billing Subscribers
Since subscription fees apply to months or partial months,
monthly subscribers are not eligible for refunds. Example:
If You subscribed on February 5 and cancelled on March 20,
You would be billed for two months of service.
B. Refund Policy: Annual Billing Subscribers
If You are an annual subscriber, the applicable refund amount,
if any, for cancellation of Your subscription is shown in
the following table. Your refund will be credited back to
the credit card You originally provided to Propel. Example:
If You cancelled in the second month of service and Your initial
annual subscription fee paid was $59.95 Your refund would
be $47.96 ($59.95 x .80 = $47.96).
The following refund table applies to Annual Billing Subscriptions:
Month of Service in which Cancellation Occurs
Refund Amount
Month 1
90 % of Annual Subscription Fee paid
Month 2
80% of Annual Subscription Fee paid
Month 3
70% of Annual Subscription Fee paid
Month 4
60% of Annual Subscription Fee paid
Month 5
50% of Annual Subscription Fee paid
Month 6
40% of Annual Subscription Fee paid
Month 7
30% of Annual Subscription Fee paid
Month 8
20% of Annual Subscription Fee paid
Month 9
10% of Annual Subscription Fee paid
Month 10 and thereafter
No refund
IF YOU DID NOT PAY THE SERVICE SUBSCRIPTION FEE USING A CREDIT
CARD, NO REFUND IS AVAILABLE.
CANCELLATION
To cancel Your Propel Accelerator subscription, please call
(408) 571-6306 Monday through Friday 9:00 AM to 5:00 PM PST
or submit email via online form to Propel at http://www.propel.com/email
-- one of Propel's Customer Support Representatives will assist
You.
THIRD PARTY SITES; PRIVACY
The Service may link You to Web sites which may contain information
or material that some people may find inappropriate or offensive.
Such Web sites are not under the control of Propel. You acknowledge
that Propel is not responsible for the accuracy, copyright
compliance, legality, decency, or any other attribute of the
content of such Web sites and Propel shall have no liability
for any information, data, communications, or other materials
available on such Web sites. Providing access to such Web
sites does not imply endorsement of the Web site by Propel
or any association with those responsible for its operation.
The Propel Privacy Policy is located at http://accelerator.propel.com/privacy.
DISCLAIMER OF WARRANTIES; LIMITED WARRANTY; LIMITATION OF
LIABILITY
PROPEL MAKES NO WARRANTY OR GUARANTEE REGARDING THE PERFORMANCE,
FEATURES, COMPATIBILITY OR OTHERWISE OF ANY CONNECTED INTERNET
SERVICE OR HOST/COMPUTER CONNECTED TO THE SERVICE. ALL MATERIALS,
INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES AVAILABLE THROUGH
OR FORMING PART OF THE SERVICE (THE "CONTENT") ARE
PROVIDED FOR YOUR USE ON AN "AS IS", "AS AVAILABLE" BASIS.
THE CONTENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
OR NON-INFRINGEMENT. PROPEL AND ITS LICENSORS DO NOT WARRANT
THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THIS
SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION;
THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE
CONTENT IS SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOUR USE OF THE SERVICE IS SOLELY AT YOUR RISK.
PROPEL WARRANTS THAT, IF YOU ARE DISSATISFIED WITH THE SERVICE
OR ANY FEATURE PROVIDED IN OR THROUGH THE SERVICE, UPON NOTICE
FROM YOU, PROPEL WILL TERMINATE YOUR ACCOUNT AND, IF YOU ARE
A UNITED STATES-BASED SUBSCRIBER OR A NON-UNITED STATES-BASED
SUBSCRIBER WHO PAID THE SERVICE SUBSCRIPTION FEE USING A CREDIT
CARD ISSUED BY A UNITED STATES BANK, UPON REQUEST, REFUND
THE APPLICABLE REFUND AMOUNT, IF ANY, SPECIFIED ABOVE. THIS
IS YOUR SOLE AND EXCLUSIVE REMEDY. IF YOU ARE NOT A UNITED
STATES-BASED SUBSCRIBER OR NOT A SUBSCRIBER WHO PAID THE SERVICE
SUBSCRIPTION FEE USING A CREDIT CARD ISSUED BY A UNITED STATES
BANK, NO REFUND IS AVAILABLE AND YOU ASSUME ALL RISK THAT
THE SERVICE MAY BE TERMINATED OR OTHERWISE NOT BE AVAILABLE
FOR ANY REASON, WITHOUT RIGHT TO ANY REFUND IN WHOLE OR IN
PART.
Do not use the service in any high-risk activities where damage
or injury to persons, property, environment or business may
result if any error occurs. You expressly assume all risk
for such use. We disclaim any warranty of title or any other
warranties for any third party's offering(s) or product(s).
Propel does not guarantee that its security procedures will
prevent the loss of, alteration of, or improper access to,
Your information. Propel is not responsible for invalid destinations
and transmission errors in, corruption of, or the security
of Your information carried over third party facilities. Propel,
including its licensors, disclaims any liability or responsibility
arising from any claim that Your access or use of the service
and/or any related products Propel provides infringes any
third party's intellectual property rights.
BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF
CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
UNDER NO CIRCUMSTANCES SHALL PROPEL OR ITS LICENSORS BE LIABLE
FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY
TO USE, THE SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED
LIABILITY IS BASED ON A BREACH OF CONTRACT, EVEN IF IN THE
NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL TERM OR A
FUNDAMENTAL BREACH, TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE
OR MISREPRESENTATION, STRICT LIABILITY, OR ANY OTHER BASIS,
EVEN IF PROPEL SHALL HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS,
LOST BUSINESS REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS
OR ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
IN NO EVENT IS PROPEL OR ITS LICENSORS LIABLE FOR ANY DAMAGES
ARISING FROM YOUR FAILURE TO PERFORM YOUR RESPONSIBILITY IN
CONNECTION WITH THESE TERMS OF SERVICE, OR ARISING FROM ANY
CAUSE BEYOND PROPEL'S CONTROL, INCLUDING, BUT NOT LIMITED
TO, DELAY IN THE PERFORMANCE OF PROPEL'S OBLIGATIONS. ALL
LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION ALSO APPLY
TO PROPEL'S LICENSORS AS INTENDED BENEFICIARIES OF THESE TERMS
OF SERVICE. ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM
FOR WHICH PROPEL AND ITS LICENSORS ARE COLLECTIVELY RESPONSIBLE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, PROPEL'S LIABILITY
IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED
BY LAW.
INTERNATIONAL USE; SUBCONTRACTING; SERVICE WITHDRAWAL
Propel makes no representation that the Service is appropriate
or available for use outside the United States. Accessing
the Service from locations where it is illegal is prohibited.
You represent that You are not a national or resident of and
are not located in any of the following countries: Cuba, Iran,
Iraq, Libya, North Korea, Sudan, or Syria.
You represent that You are not a specifically designated individual,
denied party, or entity under any U.S. embargo or otherwise
the subject, either directly or indirectly (by affiliation,
or any other connection with another party) to any order issued
by any agency of the U.S. Government limiting, barring, revoking
or denying, in whole or in part, Your U.S. export privileges.
You agree to notify Propel immediately in the event You become
subject to any such order.
Propel may utilize subcontractors for the performance of the
Service or any part thereof.
Propel reserves the right to immediately withdraw the Service
(in whole or in part) from You and cancel Your account if,
in Propel's opinion, Your use is disruptive, causes a malfunction
of the Service, violates the terms of this Terms of Service/Software
License Agreement or the Acceptable Use Policy, if Propel
receives information that the Service or Your use of the Service
(or any part thereof) may violate any copyrights or other
intellectual property rights of any third party or any other
applicable laws and regulations (including, but not limited
to, US export regulations), or if Propel receives an order
from a court of competent jurisdiction requiring Propel to
do so.
INDEMNIFICATION
Upon a request by Propel, You agree to defend, indemnify,
and hold harmless Propel and its employees, contractors, officers,
and directors from all liabilities, claims, and expenses,
including reasonable attorney's fees, that arise out of or
related to (i) Your use or misuse of the Service, Your use
or attempted use of any facility or equipment connected to
the Service, any viruses or other harmful components resulting
from Your use of the Service, or Your breach of the Acceptable
Use Policy; or (ii) except to the extent that such liability,
claim or expense is attributable to any willful misconduct
on the part of Propel, any action brought by any third party
against Propel for infringement of intellectual property rights
due to Your use of the Service. Propel reserves the right,
at it's own expense, to assume the exclusive defense and control
of any matter otherwise subject to indemnification by You,
in which event You will cooperate with Propel in asserting
any available defenses.
CHOICE OF LAW AND FORUM
The Terms of Service shall not be governed by the provisions
of the 1980 United Nations Convention on Contracts for the
International Sale of Goods or the United Nations Convention
on the Limitation Period in the International Sale of Goods,
as amended, rather the Terms of Service shall be governed
by and construed in accordance with the laws of the State
of California, excluding its conflicts of law rules. You expressly
agree that the exclusive jurisdiction for any claim or action
arising out of or relating to the Terms of Service or Your
use of the Service shall be filed only in a court (whether
federal or state) located in Santa Clara County in the State
of California, and You further irrevocably agree and submit
to the exercise of personal and subject matter jurisdiction
and venue of such courts for the purpose of litigating any
such claim or action.
FORCE MAJEURE; INDEPENDENT CONTRACTORS
If the performance of the Terms of Service and/or the below
Software License Agreement, or any obligation thereunder (except
payment of monies due) is prevented, restricted or interfered
with by reason of fire or other casualty or accident; earthquake;
Acts of God; flood; strikes or labor disputes; inability to
procure raw materials, power or supplies; war or other violence;
acts of terrorism, whether actual or threatened, acts of a
public enemy, epidemics, quarantines, any law, order proclamation,
regulation, ordinance, demand or requirement of any governmental
agency or intergovernmental body; or any other act or condition
whatsoever beyond the reasonable control of the parties hereto,
the party so affected, upon giving notice to the other party,
shall be excused from such performance to the extent of such
prevention, restriction or interference. In the event that
any force majeure event shall continue for a period of more
than ninety (90) days, the party whose performance is not
affected by the force majeure event shall be entitled to terminate
the Service without cause immediately on written notice to
the other party any time within thirty (30) days after such
ninety (90) day period. You and Propel agree that no joint
venture, partnership, agency or other relationship shall be
created or implied as a result of the Terms of Service or
Your use of the Service.
WAIVER; SEVERABILITY AND INTEGRATION
A waiver by either party of any term or condition of the Terms
of Service or any breach thereof, in any one instance, shall
not be deemed or construed to be a waiver of such term or
condition or any subsequent breach thereof. Unless otherwise
specified herein, the Terms of Service constitute the entire
agreement between You and Propel with respect to the Service
and supersede all prior or contemporaneous communications
and proposals (whether oral, written, or electronic) between
You and Propel with respect to the Service. If the application
of any provision or provisions of this Agreement to any particular
facts or circumstances shall be held to be invalid or unenforceable
by any court of competent jurisdiction, then (a) the validity
and enforceability of such provision or provisions as applied
to any other particular facts or circumstances and the validity
of other provisions of this Agreement shall not in any way
be affected or impaired thereby and (b) such provision(s)
shall be reformed without further action by the parties to
make such provision(s) valid and enforceable when applied
to such facts and circumstances.
TERMINATION
Either party is entitled to terminate the Service at any time.
Propel may terminate the agreement electronically by sending
an email message to You or by displaying a message on the
monitor of the Your computer using the Service. Termination
of the Service for whatever reason is without prejudice to
any rights that have accrued to either party prior to the
date of termination. Propel reserves the right, in its sole
discretion, at any time to terminate Your access to all or
part of the Service, with or without notice. Certain Service
features (e.g., pop-up blocker) may continue to be available
after the termination of the Service. The terms and conditions
of this Terms of Service/Software License Agreement continue
to apply to such features. Such features, if any, may be discontinued
by de-installation of the Software and/or as otherwise described
in the documentation.
YOUR ACTION IS REQUIRED TO CANCEL THE SERVICE. For additional
information about how to cancel Your subscription account,
please click on the "My Account" link on http://www.propel.com
or review the relevant section of the FAQs located at http://support.propel.com.
NOTICES
Any notice given under or pursuant to these Terms of Service
must be in writing and will be deemed duly given or made if
delivered or sent by United States Postal Service First Class
mail, hand delivery, electronic mail, nationally recognized
courier service, if notice to You, to Your address indicated
in Your Service subscription account, and, if notice to Propel
(other than a Service cancellation notice which shall occur
solely as specified in Your "My Account" link on
http://www.propel.com or by reviewing the relevant sections
of the FAQs located at http://support.propel.com), through
online email form at http://www.propel.com/email or to Propel
Software Corporation, 1010 Rincon Circle, San Jose, CA 95131-1325
marked to the attention of General Counsel. In addition, any
notice, demand or other communication will be deemed, in the
absence of proof to the contrary, to have been received by
the person to whom it was sent: in the case of hand delivery,
upon delivery; in the case of United States Postal Service
First Class mail, ten (10) days after the date of dispatch;
in the case of electronic mail, twelve (12) hours if no delivery
trouble has been reported; and in the case of U.S. domestic
courier service, on the second business day after the date
of dispatch.
FREQUENTLY ASKED QUESTIONS
You can find the Frequently Asked Questions (FAQs) for the
Service at http://support.propel.com.
Propel Accelerator Client Software
SOFTWARE LICENSE AGREEMENT
READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
AND THE ABOVE TERMS OF SERVICE CAREFULLY. INDICATE YOUR ACCEPTANCE
OF THESE TERMS AND THE ABOVE TERMS OF SERVICE BY SELECTING
THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL THESE TERMS, SELECT THE "NO" BUTTON
AT THE END OF THIS AGREEMENT. CERTAIN THIRD PARTY SOFTWARE
PROGRAMS WHICH ARE PROVIDED ALONG WITH THE SOFTWARE ARE IDENTIFIED
BELOW AND ARE LICENSED TO YOU UNDER THE APPLICABLE LICENSE
TERMS SET FORTH BELOW. BY SELECTING THE "ACCEPT" BUTTON,
INSTALLING, COPYING OR OTHERWISE USING ANY PART OF THIS SOFTWARE,
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE
ABOVE TERMS OF SERVICE.
1. LICENSE TO USE. Upon Your acceptance of this Agreement
and subject to the terms hereof, Propel Software Corporation
("Propel") grants to You a limited, personal, non-exclusive,
non-assignable and non-transferable license to use the accompanying
software in executable code form only and documentation and
any error corrections, updates and supplements thereto provided
to You by Propel (collectively the "Software"),
on only one computer system at a time solely in conjunction
with Your use of the Service specified in the Terms of Service,
above. You may make and install copies of the Software on
an unlimited number of computers provided You are the only
individual using the Software. If You are an entity, Propel
grants You the right to designate one individual within Your
organization to have the sole right to use the Software in
the manner provided in this Agreement. A single license for
the Software may not be shared or used concurrently by other
end users. If the Software is provided to You for a free trial
period such license to use is further restricted to use solely
for evaluation purposes during such free trial period.
2. RESTRICTIONS. The Software is confidential and copyrighted.
The Software is licensed, not sold. All right, title and interest
in and to the Software, and copies of the Software and all
associated intellectual property rights are retained by Propel
and/or its licensors. You shall not distribute the Software
or any portion thereof, or rent, loan, lease, sell, sublicense
or assign the Software or any copy. Except as permitted hereby,
You may not make copies of the Software. You shall hold all
the Software as confidential trade secrets of Propel and/or
Propel's licensors. Unless enforcement is prohibited by applicable
law, You may not modify, decode, decompile, reverse assemble,
reverse engineer or otherwise translate the Software. You
acknowledge that the Software is not designed, licensed or
intended for use in the design, construction, operation or
maintenance of any nuclear facility. Propel disclaims any
express or implied warranty of fitness for such uses. No right,
title or interest in or to any trademark, service mark, logo
or trade name of Propel or its licensors is granted under
this Agreement. Any rights not expressly granted herein are
reserved by Propel. All title and intellectual property rights
in and to the content which may be accessed through use of
the Software is the property of the respective content owner
and may be protected by applicable copyright or other intellectual
property laws and treaties. This Agreement grants You no right
to use such content. Any trademark, trade name, copyright,
or other proprietary notices, legends, symbols, or labels
appearing on or in the Software shall not be altered or removed
by You and shall be accurately reproduced by You on and in
any permitted copy of the Software. You understand that Propel
may not, at its sole option, provide any assistance, technical,
customer or other support, in the use of the Software, and
You use the Software at Your own risk.
3. DISCLAIMER OF WARRANTY. PROPEL HAS NO CONTROL OVER THIRD
PARTY NETWORKS OR WEB SITES, AND DELAYS AND DISRUPTIONS ARE
BEYOND PROPEL'S CONTROL. PROPEL CANNOT AND WILL NOT GUARANTEE
THAT THE SOFTWARE WILL PROVIDE A SERVICE THAT MEETS YOUR NEEDS.
THE SOFTWARE IS PROVIDED ON AN "AS-IS", "AS-AVAILABLE" BASIS,
WITH NO WARRANTIES OF ANY KIND. PROPEL AND ITS LICENSORS DISCLAIM
ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED
WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR THAT
THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE
OR VIRUS-FREE, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS
ARE HELD TO BE LEGALLY INVALID.
4. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, IN NO EVENT WILL PROPEL OR ITS LICENSORS
BE LIABLE FOR ANY DIRECT, SPECIAL, RELIANCE, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS
OF GOODWILL, USE, DATA OR PROFITS OR ANY OTHER INTANGIBLE
OR PECUNIARY LOSS) HOWEVER CAUSED AND REGARDLESS OF THE THEORY
OF LIABILITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE,
EVEN IF PROPEL SHALL HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT WILL PROPEL'S LIABILITY TO YOU,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED),
OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE
UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY
TO YOU.
5. INDEMNITY; Third Party Beneficiary. As a condition of Your
use, You agree to defend and indemnify Propel and its licensors
from and against any damages, costs, liabilities, settlement
amounts and/or expenses (including, without limitation, attorneys'
fees and other dispute resolution expenses) incurred in connection
with any claim, lawsuit or action by any third party that
arises or results from Your use or misuse of the Software
or downloading, use, reproduction of, and/or receipt or distribution
of any information or content utilizing the Software, Your
breach of this Agreement or Your violation of any rights of
any third party. You agree that Propel's licensors are third
party beneficiaries to this Agreement.
6. TERMINATION. This Agreement is effective until terminated.
You may terminate this Agreement at any time by destroying
all Your copies of the Software, provided however that cancellation
of Your service subscription account must occur using the
process referred to in the Terms of Service, above. Without
prejudice to any other rights, Propel may terminate this Agreement
if You fail to comply with any provision of this Agreement
or the above Terms of Service. Propel reserves the right,
in its sole discretion and at any time, to terminate this
Agreement, modify or discontinue the Software; limit, terminate
or suspend Your use of the Software; and/or make changes to
or terminate this Agreement.
7. EXPORT REGULATIONS; TRADEMARKS. All the Software and technical
data delivered under this Agreement are subject to U.S. export
control laws and may be subject to export or import regulations
in other countries. You agree to comply strictly with all
such laws and regulations and acknowledge that You have the
responsibility to obtain such licenses to export, re-export,
or import as may be required after delivery to You. "Propel",
the Propel logo, and other Propel related properties are trademarks
of Propel and may be registered in certain jurisdictions.
All other trademarks shown are trademarks of their respective
owners.
8. U.S. GOVERMENT RESTRICTED RIGHTS. If the Software is being
acquired by or on behalf of the U.S. Government or by a U.S.
Government prime contractor or subcontractor (at any tier),
then the Government's rights in the Software and accompanying
documentation will be only as set forth in this Agreement;
the Software is provided with RESTRICTED AND LIMITED RIGHTS.
Use, duplication or disclosure by the Government is subject
to restrictions as set forth in subparagraph (c)(1)(ii) of
the Rights to Technical Data and Computer Software clause
in DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the
Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19,
as applicable. Contractor/Manufacturer is Propel Software
Corporation, 1010 Rincon Circle, San Jose, CA 95131-1325.
9. GOVERNING LAW. The Software License Agreement shall not
be governed by the provisions of the 1980 United Nations Convention
on Contracts for the International Sale of Goods or the United
Nations Convention on the Limitation Period in the International
Sale of Goods, as amended, rather any action related to this
Agreement will be governed by California law and controlling
U.S. federal law. No choice of law rules of any jurisdiction
will apply.
10. SUPPORT SERVICES. Propel may provide You with support
services related to the Software ("Support Services").
Use of Support Services is governed by the Propel policies
and programs described in "online" documentation
and/or other Propel-provided materials. Any error corrections,
updates and supplemental software code provided to You as
part of the Support Services shall be considered part of the
Software and subject to the terms and conditions of this Agreement.
With respect to technical information You provide to Propel
as part of the Support Services, Propel may use such information
for its business purposes, including for product support and
development. Propel will not utilize such technical information
in a form that personally identifies You.
11. SEVERABILITY; NO WAIVER; INTEGRATION. If any provision
of this Agreement is held to be unenforceable, this Agreement
will remain in effect with the provision omitted, unless omission
would frustrate the intent of the parties, in which case this
Agreement will immediately terminate. The failure or delay
of Propel to exercise or enforce any rights or provision of
this Agreement does not constitute a waiver of such right
or provision. This Agreement and the above Terms of Service
are the entire agreement between You and Propel relating to
its subject matter. It supersedes all prior or contemporaneous
oral or written communications, proposals, representations
and warranties and prevails over any conflicting or additional
terms of any quote, order, acknowledgment, or other communication
between the parties relating to its subject matter during
the term of this Agreement; provided, however, that any confidential
disclosure agreement by and between You and Propel shall remain
in full force and effect in accordance with its terms. No
modification of this Agreement will be binding, unless in
writing and signed by an authorized representative of each
party.
THIRD PARTY SOFTWARE (Sections 12 and 13)
DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
Third party software is provided by Propel "as is" and "with
all faults". Propel AND ITS LICENSORS make no representations
or warranties of any kind concerning the quality, safety or
suitability of this software, either express or implied, including
without limitation any implied warranties of title, merchantability,
fitness for a particular purpose, or non-infringement. To
the maximum extent permitted by applicable law, in no event
will Propel OR ITS LICENSORS be liable for any direct, reliance,
exemplary, indirect, punitive, special, incidental or consequential
damages however they may arise and even if Propel OR ITS LICENSORS
shall have been advised of the possibility of such damages.
12.
A. Medusa: Portions Copyright 1996-2000, Sam Rushing rushing@nightmare.com
All Rights Reserved.
Permission to use, copy, modify, and distribute this software
and its documentation for any purpose and without fee is hereby
granted, provided that the above copyright notice appear in
all copies and that both that copyright notice and this permission
notice appear in supporting documentation, and that the name
of Sam Rushing not be used in advertising or publicity pertaining
to distribution of the software without specific, written
prior permission.
SAM RUSHING DISCLAIMS ALL WARRANTIES WITH REGARD TO THIS SOFTWARE,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS,
IN NO EVENT SHALL SAM RUSHING BE LIABLE FOR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING
FROM LOSS OR USE, DATA OR PROFITS, WHETHER IN AN ACTION OF
CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, ARISING OUT
OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.
13. Portions of Python 2.3 are included.
License for the Python 2.3 release is as follows:
PSF LICENSE AGREEMENT FOR PYTHON 2.3
--------------------------------------
1. This LICENSE AGREEMENT is between the Python Software Foundation
("PSF"), and the Individual or Organization ("Licensee")
accessing and otherwise using Python 2.3 software in source
or binary form and its associated documentation.
2. Subject to the terms and conditions of this License Agreement,
PSF hereby grants Licensee a nonexclusive, royalty-free, world-wide
license to reproduce, analyze, test, perform and/or display
publicly, prepare derivative works, distribute, and otherwise
use Python 2.3 alone or in any derivative version, provided,
however, that PSF's License Agreement and PSF's notice of
copyright, i.e., "Copyright (c) 2001, 2002, 2003 Python
Software Foundation; All Rights Reserved" are retained
in Python 2.3 alone or in any derivative version prepared
by Licensee.
3. In the event Licensee prepares a derivative work that is
based on or incorporates Python 2.3 or any part thereof, and
wants to make the derivative work available to others as provided
herein, then Licensee hereby agrees to include in any such
work a brief summary of the changes made to Python 2.3.
4. PSF is making Python 2.3 available to Licensee on an "AS
IS" basis. PSF MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED. BY WAY OF EXAMPLE, BUT NOT LIMITATION,
PSF MAKES NO AND DISCLAIMS ANY REPRESENTATION OR WARRANTY
OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
THAT THE USE OF PYTHON 2.3 WILL NOT INFRINGE ANY THIRD PARTY
RIGHTS.
5. PSF SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER USERS
OF PYTHON 2.3 FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES OR LOSS AS A RESULT OF MODIFYING, DISTRIBUTING, OR
OTHERWISE USING PYTHON 2.3, OR ANY DERIVATIVE THEREOF, EVEN
IF ADVISED OF THE POSSIBILITY THEREOF.
6. This License Agreement will automatically terminate upon
a material breach of its terms and conditions.
7. Nothing in this License Agreement shall be deemed to create
any relationship of agency, partnership, or joint venture
between PSF and Licensee. This License Agreement does not
grant permission to use PSF trademarks or trade name in a
trademark sense to endorse or promote products or services
of Licensee, or any third party.
8. By copying, installing or otherwise using Python 2.3, Licensee
agrees to be bound by the terms and conditions of this License
Agreement.
For additional information see:
http://www.python.org/2.3.2/license.html
--------------------------------------
14. This Agreement is personal to You and You may not assign
Your rights herein. Any attempted assignment in derogation
hereof is null and void. Sections 2 through 14 of this Agreement
will survive any termination of this Agreement.
Software Copyright Information
Copyright (C) 2001-2004 Propel Software Corporation
Portions copyright (C) 2002-2003 Python Software Foundation
Portions developed using the Kakadu software
Also see Sections 12 and 13 above
All rights reserved.
For inquiries please contact: Propel Software Corporation,
1010 Rincon Circle, San Jose, California 95131-1325.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE
TERMS OF SERVICE ABOVE, UNDERSTAND THEM AND AGREE TO BE BOUND
BY THEIR TERMS AND CONDITIONS. IF APPLICABLE, "YOU" OR "YOUR" AS
REFERRED TO HEREINABOVE MEANS THE ENTITY OR COMPANY (THE "COMPANY")
AT WHICH THE SOFTWARE IS INSTALLED PURSUANT TO THIS AGREEMENT.
IN SUCH EVENT, YOU WARRANT AND REPRESENT THAT AS THE INDIVIDUAL
CLICKING THE "ACCEPT" BUTTON, IF SHOWN BELOW, OR
CLICKING THE "COMPLETE ORDER" BUTTON AS PROMPTED
DURING THE SUBSCRIPTION PROCESS, YOU ARE AUTHORIZED TO ENTER
INTO THIS AGREEMENT ON BEHALF OF THE COMPANY.
Propel Terms of Service/Software License Agreement Version
5
9 November 2004
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