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IMPORTANT-READ CAREFULLY: YOUR USE OF THE METAZOA PRODUCTS AND ASSOCIATED PRODUCTS IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS. BY CLICKING THE "I AGREE" BUTTON OR BY UTILIZING THE METAZOA PRODUCTS YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THE METAZOA PRODUCTS ARE NOT AVAILABLE TO PERSONS UNDER 13 YEARS OF AGE. This is a legal agreement ("Agreement") between You and Metazoa, Inc. ("Metazoa"), for use of the Metazoa products which You selected or initiated, which may include SnapShot, DreamTeam, or other products provided by Metazoa ("Products"). "You" refers to the individual who registered and/or provided Metazoa his or her credit card or other payment mechanism for the Products or, if the Products are being purchased on behalf of an entity by an individual authorized to purchase the Products on behalf of such entity, then "You" refers to such entity. If You do not agree with the terms of this Agreement, click the "Cancel" button and do not use the Products. Any software associated with the Products is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. If You have a signed agreement with Metazoa or a signed Order Form with Metazoa incorporating an agreement that is different than this Agreement, then that other agreement will apply to You rather than this Agreement.
1. PRODUCTS. Metazoa will provide the Products in accordance with this Agreement. Metazoa may at its sole discretion modify the features of the Products from time to time without prior notice.
2. FREE TRIAL. If you have elected to use a Product on a Free Trial basis, then you may use the Product for a period of 14 days from the date you first downloaded the Product, or such other time period as specified in writing by Metazoa in connection with the Free Trial offer in which you are participating (“Free Trial Period”). During the Free Trial Period, the Product may be used solely for evaluation purposes. This Agreement will terminate and you must cease all use and delete all of your copies of the Product at the end of the Free Trial Period. Your free trial will not automatically become a paid subscription. You must complete, sign and submit a Metazoa Order Form in order to obtain a paid subscription.
3. CHARGES. You agree that Metazoa may charge to Your credit card or other payment mechanism selected by You and approved by Metazoa ("Your Account") all amounts due and owing for the Products, including subscription fees or any other fee or charge associated with Your use of the Products. Metazoa may change prices at any time without prior notice. You agree that in the event Metazoa is unable to collect the fees owed to Metazoa for the Products through Your Account, Metazoa may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Metazoa in connection with such collection activity, including collection fees, court costs and attorney's fees. You further agree that Metazoa may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. NO COMMERCIAL USE. Other than using the Products for Yourself and Your Company, and as permitted under the terms and conditions of this Agreement or other written agreements between You and Metazoa, You may not resell, distribute, make any commercial use of, use on a timeshare or service bureau basis, or use to operate a Web-site or otherwise generate income from the Products.
5. PROPRIETARY RIGHTS. Metazoa or its licensors own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Products. Metazoa shall retain ownership of any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Products. Customer acknowledges that the licenses granted under this Agreement do not provide Customer with title to or ownership of the Products, but only a right to use under the terms and conditions of this Agreement. Customer shall not cause or permit the modification, disassembly, decompilation or reverse engineering of the Products or otherwise attempt to gain access to the source code to the Products. Customer may not modify, adapt, translate or create derivative works based on all or any part of the Products. Customer shall not use the Products in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Products.
6. TERMINATION. You may terminate this Agreement by providing written notice to Metazoa via e-mail to firstname.lastname@example.org. For Free Trials, such notice will be effective upon receipt by Metazoa. For all other Agreements, such termination will be effective on the later of: (a) the last day of the term (if your Agreement has a fixed term), or (b) thirty (30) days after Metazoa's receipt of your written termination notice. If You fail to comply with any provision of this Agreement, Metazoa may terminate this Agreement immediately without notice. Sections 2 through 11, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Products and destroy any copies of associated software within Your possession and control.
7. EXPORT RESTRICTIONS. You acknowledge that the Products, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Products or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
8. INJUNCTIVE RELIEF. You acknowledge that any use of the Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Products, may cause irreparable injury to Metazoa, its affiliates, suppliers and any other party authorized by Metazoa to resell, distribute, or promote the Products ("Resellers"), and under such circumstances Metazoa, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
9. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE PRODUCTS ARE PROVIDED "AS IS" AND METAZOA, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. METAZOA, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS, REGARDING ANY GOODS OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE PRODUCTS, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE PRODUCTS OR THAT THE PRODUCTS WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE PRODUCTS IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PRODUCTS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCTS REMAINS WITH YOU. You agree to indemnify, defend and hold harmless Metazoa, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Products, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Products are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Metazoa, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL METAZOA OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT PRODUCTS, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF METAZOA, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, METAZOA'S, ITS AFFILIATE'S, SUPPLIER'S AND RESELLER'S MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCTS (IF ANY) IN THE PREVIOUS 12 MONTHS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
11.1 Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Santa Clara County, California.
11.2 Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
11.3 General Provisions. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Metazoa may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to Metazoa under this Agreement must be sent to the address as provided by Metazoa for such purpose. Any and all rights and remedies of Metazoa upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Metazoa, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.