Personal Computer World 2005 October/PCWOCT05.iso/Software/FromTheMag/XAMPP 1.4.14/xampp-win32-1.4.14-installer.exe/xampp/licenses/zendOptimizer/license.txt

Text File | 2004-07-01 | 19KB | 188 lines

Zend OptimizerÖ - License Agreement
version 2.5.3

ZEND TECHNOLOGIES LTD. SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
IMPORTANT: READ THESE TERMS CAREFULLY BEFORE INSTALLING THIS SOFTWARE. BY SELECTING THE "I ACCEPT" BUTTON BELOW,
INSTALLING, OR OTHERWISE USING THIS SOFTWARE, YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT,
AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO EXIT
THIS INSTALLATION PROGRAM WITHOUT INSTALLING THE SOFTWARE BY SELECTING THE "I DO NOT ACCEPT" BUTTON BELOW, AND TO
DELETE THE SOFTWARE FROM YOUR COMPUTER.

1. DEFINITIONS
1.1. Licensor. The term "Licensor" shall mean Zend Technologies Ltd., having an address at #7 Aba Hillel St., Ramat Gan
52136, Israel.
1.2. Software. The term "Software" shall mean the Zend computer software program known as the "Zend Optimizer," as
installed by this installation process, in machine-executable form only, and any related documentation.
1.3. Term. The term "Term" shall mean the period commencing on the date that Licensee installs the Software on a computer
in accordance with the terms and conditions hereof (the "Effective Date") and continuing perpetually or until terminated due to
Licensee's breach of this Agreement in accordance with Section 3 hereof.

2. LICENSE
2.1. Scope of Use. Subject to the terms and conditions of this Agreement, including, without limitation, Section 2.2 hereof,
Licensor hereby grants to Licensee, during the Term, a limited, a non-exclusive, non-transferable (subject to Section 2.3)
license (the "License") to install and operate the Software on a computer or a computer network owned or operated by
Licensee.
2.2. Restrictions. Except as otherwise expressly set forth herein or to the extent such restrictions cannot be imposed under the
applicable law, Licensee shall not: (a) copy the Software other than as required to use the Software as intended by this
Agreement; (b) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code
form from the object code supplied hereunder; (c) modify, adapt, translate or create a derivative work from the Software; (d)
remove any proprietary notices, labels, or marks on the Software; or (e) assign, sublicense (except as set forth in Section
2.3), rent or transfer all or any part of the Software to any person or entity without the prior written consent of Licensor. To
the extent that Licensor provides any third party software to Licensee in connection with this Agreement or the Software,
Licensee's use of such third party software shall be subject to any license agreements provided by the third party vendors of
such third party software.
2.3. Right to Sublicense. During the Term and subject to the terms and conditions hereof, Licensee may make copies of the
Software and sublicense to its customers (the "Licensee Customers") a limited, non-exclusive, internal-use-only sublicense to
install and use such copies of the Software at the Licensee Customer's site, provided that: (1) Licensee is not authorized to
charge Licensee Customers a fee (directly or indirectly) for such sublicense; and (2) each such Licensee Customer shall be
obligated to execute a sublicense agreement (a "Licensee Customer Sublicense Agreement"). Such Licensee Customer
Sublicense Agreement shall protect Licensor's proprietary rights in the Software, and any portion thereof, to at least the same
degree as provided under the terms and conditions of this Agreement, and, without limitation of the foregoing, shall: (i)
require that such Licensee Customer not reverse engineer, reverse compile or disassemble the object code of the Software, (ii)
require such Licensee Customer to comply fully with all applicable laws and regulations in any of its dealings with respect to
the Software, (iii) make no representations or warranties on behalf of Licensor; (iv) not grant any rights to such Licensee
Customer beyond the scope of this Agreement, and (v) prohibit the further distribution, sublicensing or use of the Software in
a service bureau or time sharing basis (except pursuant to a sublicense agreement that is at least as protective of Licensor's
rights as a Licensee Customer Sublicense Agreement).
2.4. Records. At all times during and for three (3) years after the Term, Licensee shall: (i) maintain a copy of all Licensee
Customer Sublicense Agreements (including, if any Licensee Customer Sublicense Agreements were entered into via
"shrinkwrap" license, online "acceptance", "shrinkwrap" license or a similar method, a list of the identities of each such
Licensee Customer and a copy of the Licensee Customer Sublicense Agreement entered into by each such Licensee Customer)
and, upon Zend's request at any time during such period, make available to Zend copies of all such Licensee Customer
Sublicense Agreements and lists of Licensee Customers; and (ii) maintain complete, detailed and accurate records of all use
Licensee makes of the Software and all of Licensee's distributions of the Software.

3. TERMINATION
This License will terminate automatically upon any breach by Licensee of any term or condition of this Agreement. Within five
(5) business days of any such termination, Licensee shall return the Software to Licensor (or, at Licensor's sole discretion and
only at Licensor's direction, destroy the Software and certify in writing to Licensor that said Software has been destroyed).
Upon return of the Software or upon receipt of notice of the destruction of the Software, as appropriate, this Agreement shall
terminate and Licensor shall have no further obligations to Licensee. Articles 1,2.4, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 hereof
shall survive the expiration or termination of this Agreement for any reason.

4. INTELLECTUAL PROPERTY RIGHTS
4.1. Ownership. Licensee hereby acknowledges and agrees that Licensor or its licensors own and retain all rights, title, and
interest in and to the Software, regardless of the form or media in or on which the original or other copies may subsequently
exist including, without limitation, all copyrights, trademarks, patents and trade secret rights inherent therein or appurtenant
thereto. This Agreement shall not constitute a sale of the Software and no title or proprietary rights to the Software are
transferred to the Licensee hereby.
4.2. Injunctive Relief. Licensee acknowledges that the Software is a unique, confidential and valuable asset and trade secret of
Licensor or its licensors, and Licensor or its licensors shall have the right to obtain all equitable and legal redress which may be
available to it for the breach or threatened breach of this Agreement including, without limitation, injunctive relief.

5. WARRANTY; DISCLAIMER
Licensee hereby represents and warrants that all subscription, registration and payment information provided by Licensee to
Licensor relating to this Agreement, whether via online forms or otherwise, is accurate and complete and that the person
Accepting the terms hereof is authorized to bind to this Agreement the entity identified by it as the licensee under this
Agreement. IF THE SOFTWARE DOWNLOADED OR INSTALLED HEREUNDER IS DESIGNATED BY LICENSOR AS A "BETA
VERSION," LICENSEE HEREBY ACKNOWLEDGES THAT SUCH SOFTWARE IS A BETA VERSION THAT HAS NOT YET BEEN
COMPLETELY TESTED BY LICENSOR. NOTWITHSTANDING THE FOREGOING, REGARDLESS OF HOW THE SOFTWARE IS
DESIGNATED BY LICENSOR (E.G. AS A "BETA VERSION" OR OTHERWISE), THE SOFTWARE IS BEING LICENSED HEREUNDER
WITH NO WARRANTY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN RISK. THE
SOFTWARE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. LICENSOR AND ITS LICENSORS MAKE, AND LICENSEE RECEIVES,
NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. LICENSOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT.
LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR
FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, INCLUDING, WITHOUT
LIMITATION, PHP AND ANY VERSION THEREOF. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR DOWNLOADING OR
OTHERWISE OBTAINING SUCH OTHER SOFTWARE OR PRODUCTS, INCLUDING, WITHOUT LIMITATION, PHP.

6. LIMITATION OF LIABILITY
IN NO EVENT SHALL LICENSOR OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, INCLUDING
WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER
ANY THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS
MAY NOT APPLY TO LICENSEE. WITHOUT LIMITATION OF THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL LICENSOR'S
TOTAL AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING HEREUNDER, INCLUDING WITHOUT LIMITATION
ARISING OUT OF YOUR USE OF THE SOFTWARE, EXCEED THE SUM OF $100.

7. INDEMNITY
Licensee will, at its own expense, defend any action brought by a third party against Licensor to the extent that such action is
based on a claim arising from or relating to: (a) Licensee's use of the Software, (ii) any distribution of the Software by
Licensee or by any Licensee Customer or by any sublicensee or extended sublicensee of any such Licensee Customer,
regardless of privity of contract and regardless of the length of the trail of sublicenses, or (iii) any use of the Software by any
of the foregoing sublicensees. Licensor shall have the exclusive right to control such defense. In no event shall Licensee settle
any such claim, lawsuit or proceeding in any manner that materially prejudices Licensor's rights without Licensor's prior
written approval.

8. CONFIDENTIALITY
8.1. Confidential Information. Licensee shall (and shall ensure that its employees shall) maintain the strict confidentiality of
the Software, all information and materials contained in the Software and all information and materials conveyed by Licensor
to Licensee hereunder, including but not limited to documentation that may be provided with the Software, or any other
information relating to the Software's features and modes of operation, inventions (whether or not patentable), techniques,
processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal
documentation, design and function specifications, analysis and performance information, user documentation and other
technical information, plans and data (collectively, the "Licensor Proprietary Information"). This undertaking shall not apply to
information that becomes part of the public domain through no act or omission of Licensee or is in Licensee's lawful possession
prior to the Effective Date as demonstrated by written documentation.
8.2. Non-Disclosure. Licensee shall not permit anyone other than its own most trusted employees with a need to know to
access or use the Licensor Proprietary Information. Licensee shall not disclose the Licensor Proprietary Information to any third
party or use the Licensor Proprietary Information other than as authorized hereunder. Furthermore, Licensee: (a) recognizes
that the unauthorized use or disclosure of Licensor Proprietary Information will give rise to irreparable injury to Licensor or its
licensors for which monetary damages may be an inadequate remedy; and (b) agrees that Licensor or its licensors may seek
and obtain injunctive relief against the breach or threatened breach of Licensee's obligations under this Agreement, in addition
to any other legal and equitable remedies which may be available to Licensor.

9. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software provided hereunder is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial
computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Software made available to the United
States of America, its agencies and/or instrumentalities, is provided with only those rights set forth in this Agreement. Use,
duplication or disclosure of the Software by the government is subject to the restrictions as set forth in subparagraph (c)(1)
and (2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. 52.227-19, as amended, or any successor
regulations thereto.

10. EXPORT RESTRICTIONS
You represent and warrant that you will not, without obtaining prior written authorization from Licensor and, if required, of the
Bureau of Export Administration of the United States Department of Commerce or other relevant agency of the United States
Government, export or reexport, directly or indirectly, the Software (including without limitation the source code thereof) or
any Confidential Information of Licensor (including without limitation information regarding the use, access, deployment, or
functionality of the Software) from the United States to (i) any country destination to which export is restricted by the Export
Administration Regulations of the United States Department of Commerce; (ii) any country subject to sanctions administered
by the Office of Foreign Assets Control, United States Department of the Treasury; or (iii) such other countries to which export
is restricted by any other United States government agency. You further agree that you are solely responsible for compliance
with any import laws and regulations of the country of destination of a permitted export or reexport, and any other import
requirement related to a permitted export or reexport.

11. MISCELLANEOUS
This Agreement and any matters relating to it shall be governed by and construed in accordance with the laws of the country
of Israel, without regard to principles of conflicts of laws, and the sole venue and jurisdiction for any disputes arising out of or
related to this Agreement or the subject matter hereof shall be the appropriate courts located in the country of Israel and
Licensee consents to the jurisdiction of such courts. Notwithstanding the foregoing, Licensor shall have the right to apply to
any court of competent jurisdiction for injunctive or other relief. Other than as expressly set forth in this Agreement, Licensee
shall not sublicense, assign, delegate or otherwise transfer this Agreement or any of the related rights or obligations for any
reason and any attempt by Licensee to sublicense, assign, delegate or transfer this Agreement or any of the related rights or
obligations hereunder shall cause the immediate termination of this Agreement. This Agreement constitutes the complete and
exclusive statement of the terms and agreement between Licensor and Licensee and supersedes all prior representations,
understandings and communications, oral or written, between the parties with respect thereto, including memoranda of
agreement. The failure of Licensor to insist, in any one or more instances, upon the performance of any term or terms of this
Agreement shall not be construed as a waiver or relinquishment of its rights to such performance or future performance of
such a term or terms, and the obligation of Licensee in respect thereto shall continue in full force and effect. In the event that
a court of competent jurisdiction determines that any provision or portion of a provision of this Agreement is invalid, unlawful,
or unenforceable to any extent, the parties agree that such provision shall be deemed to be modified to the minimal extent
necessary to make such provision enforceable while still retaining the intent of the parties. In such event, the remainder of
this Agreement and its application to other persons shall not be affected thereby, and such remaining provisions of this
Agreement shall continue to be valid and may be enforced to the fullest extent permitted by law. In the event legal action is
taken by Licensor or its licensors to enforce any provision of this Agreement, all costs and expenses, including reasonable
attorneys' fees and expenses, incurred by Licensor or its licensors shall be paid by Licensee, in addition to other damages to
which Licensor or its licensors may be lawfully entitled. This Agreement shall be subject to modification or amendment only by
written instrument duly executed by authorized representatives of both parties. Licensee agrees that it will not refer to the
Software or to the existence of this Agreement nor will it use Licensor's name in any press releases, advertising, marketing or
other materials without Licensor's advanced written consent in each instance. Any notice provided by Licensee to Licensor
pursuant to this Agreement shall be in writing to Zend Technologies Ltd. at P.O. Box 3619, Ramat Gan 52136, Israel, and shall
be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails,
postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Any notice
provided by Licensor to Licensee pursuant to this Agreement shall be sent to the e-mail or mailing address provided by
Licensee upon registering on Zend's Web site, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if
mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; (iii) if by next
day delivery service, upon such delivery; or (iv) if by e-mail, upon the date sent. Either party may change its address by
giving written notice to the other party.

12. ZEND CUSTOMER CONTACT
If you have any questions concerning this Agreement, or if you would like to purchase a license for any of Zend's products or
contact Zend for any other reason, please send an e-mail to [e-mail].