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Wizard Internet Software and Web Hosting License Agreement
If you are ordering Web Hosting only (no software), then click here.
If you are ordering software only (no hosting), then disregard section 16.
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THIS IS A COMPUTER SOFTWARE LICENSE AND WEB HOSTING AGREEMENT (“the Agreement”) between United Publishing Group, a division of Strategic Enterprises, Inc., a Florida corporation, (”the Company” and “LICENSOR") and you (“the Customer and “the LICENSEE"). This Agreement states all of the terms and conditions, which govern the licensing, costs, fees, installation and use of any and all our Wizard Internet Software™ (“the Software”) and constitutes the entire agreement of the parties. If you are purchasing Web Hosting services, the Agreement also governs those services.
The Software is licensed and not sold. The Customer acknowledges that the Company owns all intellectual property rights in the Software, including all software components and any associated documentation. It is agreed that, except as stated herein, this Agreement does not grant Customer any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, or licenses in respect of the foregoing items of software or documentation. Any use or reproduction of the software in violation of this License Agreement is expressly prohibited and may result in civil and criminal liability.
Your purchase of the license and use of the Software constitute acceptance of the terms of this Agreement, above and below. If you do not agree with all of the terms of this Licensing Agreement, do NOT place your order or contact the Company for other licensing options.
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1.0
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LICENSEE AND EFFECTIVE DATE |
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| 1.1 |
The name of the Customer and authorized LICENSEE is the name entered on the order. |
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| 1.2 |
The Software will be installed at the web site address entered on the order unless otherwise agreed upon between the Customer and the Company. |
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| 1.3 |
The Licensee will notify the Licensor if the Software needs to be moved to a different web site address. Additional charges determined by Company at that time may apply. |
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| 1.4 |
The effective date of this Agreement is the date on which the Customer accepts this Agreement by submitting their order. |
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| 2.0 |
SCOPE OF LICENSE |
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| 2.1 |
The Software is licensed and not sold. By paying the licensing fee specified in the order, the Customer acquires a non-exclusive, non-transferable license to use the Software only for the purpose intended. Customer shall not copy, duplicate, modify, distribute or incorporate in any other work any of the Software, in whole or in part, EXCEPT as specifically provided for in this Agreement or in a writing signed by the Company and Customer, and except for one (1) archival or back-up copy to be kept on a secure server, RAID, or other secure backup media. Customer shall not reverse compile, disassemble, reverse engineer, translate files into any other file format or language, or otherwise reduce to human perceivable form any of the Software for any purpose whatsoever. Except as specifically provided for this Agreement or in a writing signed by the Company and Customer, the Customer may not rent, lease, transfer, sublicense, or otherwise transfer the Software and any related documentation. |
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| 2.2 |
The Customer is permitted to view, copy and print the documentation [FAQ and User Manual] associated with the Software, under the following limitations:
- The information and copies will be used on-site (the installation address specified in sections 1.1 or 1.2 above) or by on-site employees;
- You will not modify the documents or images;
- You will display the Company’s copyright notice on all documents or portions of documents and retain any other copyright and other proprietary or trademark notices;
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| 2.3 |
The license granted herein does NOT include permission to copy the design elements, look and feel, or layout of the Company’s Web sites. |
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| 2.4 |
The Customer is prohibited from making any modifications to the Software and Documentation and from creating any derivative of the Software and Documentation without the written consent of the Company. If changes or adaptations to said files or any other files are desired, LICENSEE may request assistance from LICENSOR; however, LICENSOR shall have no obligation to provide customizing services, other than those required for initial installation or to maintain the Software hereunder. The Customer may not engage their internet service provider or any another third party to make modifications to the Software and/or Documentation. If modifications are desired, the Customer shall contact the Company, which shall have sole right to make such modifications. |
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| 2.5 |
Each Software license entitles the Customer to use of the Software on a single server or domain, stored in a single location. Each additional installation and use of the Software requires an additional license. |
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| 2.6 |
Notwithstanding the prohibition against transfer of the license, the Customer may elect to utilize this License through a partnership or subsidiary corporation in which the Customer is the controlling partner or the majority shareholder. In such a case, LICENSOR hereby grants to the Customer (but not the Customer’s assignee) the limited right to assign this Agreement with its rights to use the Software and Documentation licensed hereunder to any business entity of which the Customer is and continues to be a controlling partner or majority shareholder ("ASSIGNEE"). |
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| 2.7 |
If at any point the Customer ceases to be the controlling partner or majority shareholder of the ASSIGNEE, then LICENSOR may, but need not, require the termination of any assignment. If LICENSOR requires the termination of the assignment under this provision, said assignment shall by itself terminate with no further action on the part of LICENSOR, and the License shall be deemed reassigned to the Customer. |
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| 2.8 |
In the event of an assignment under the terms of sections 2.6 above, the Customer shall continue to be liable for all sums due from the ASSIGNEE and no failure on the part of the ASSIGNEE to make payments due to LICENSOR shall relieve the Customer from its individual obligation to make said payments. The bankruptcy or insolvency of the ASSIGNEE or of the Customer itself shall be cause for immediate termination of this icense, and should LICENSOR be unable to terminate the License because of the provisions of the United States Bankruptcy Laws, then the trustee or other party in possession of the Software and Documentation shall be obligated to protect the trade secret status of the said information by executing a trade secret agreement or returning any source code and internal documentation which it may possess to LICENSOR immediately upon request. The ASSIGNEE holding this License under any assignment shall have no authority whatsoever to further assign or to sublicense this License or any Software and Documentation and on termination or liquidation of the ASSIGNEE, the assignment shall automatically terminate and all the rights granted in this License shall be revested in LICENSOR. |
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| 3.0 |
LICENSEE’S OBLIGATIONS |
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| 3.1 |
As a condition precedent to the Company obligations hereunder, Customer shall provide the Company with full, good faith cooperation and such information as may be required by the Company in order to render the services as required hereunder. |
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| 3.2 |
The Customer agrees to comply with the terms and conditions of this License and agrees not to use the Software and Documentation licensed hereunder in any way beyond the scope of this License. The Customer agrees to take all reasonable steps to protect the Software and Documentation from theft or from use by others contrary to the terms of this License. The Customer agrees not to disclose or use any Trade Secrets which are provided to the Customer in the Company’s Software, technical manuals, or Documentation except in accordance with the terms of this License. In addition, LICENSEE agrees not to seek to discover or to disclose any of LICENSOR's Trade Secrets by disassembling, decompiling, or otherwise reverse engineering the Software. |
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| 3.3 |
The LICENSEE agrees that all agreements between itself and its customers, by which portions of the Software and Documentation are used by such customers, shall be in writing, shall be in such form and substance as LICENSOR shall approve, which approval shall not be unreasonably withheld. LICENSEE may use a form agreement, previously approved by LICENSOR, but shall maintain copies of all such licenses signed and shall, if requested, provide LICENSOR with true copies of all such licenses signed. |
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| 4.0 |
LIMITED WARRANTY AND DISCLAIMER OF LIABILITY |
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| 4.1 |
The Company offers a money-back guarantee if the Company is unable to install the Software on Customer’s website. Due to the nature of the Software, depth of installation and Customer’s ability to demo the software prior to purchase, the Company does not offer any other warranty or guarantee. In a rare situation where the Company agrees to a refund, it will be for purchase price less an installation fee determined by the Company at that time, but not less than $75. |
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| 4.2 |
WHETHER OR NOT THE LICENSOR PROVIDES HOSTING SERVICES, LICENSOR IS NOT RESPONSIBLE FOR BACKING UP THE CUSTOMER’S DATA OR FOR LOST DATA AND HAS NO CONTROL OVER HOW THE LICENSEE USES THE SOFTWARE. THEREFORE, LICENSOR DOES NOT AND CANNOT WARRANT THE RESULTS THAT MAY BE OBTAINED BY ITS USE. |
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| 4.3 |
LICENSOR will replace any media or any copy of the Documentation which proves defective in materials or workmanship without charge (in most cases, no media is necessary or provided). |
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| 4.4 |
LICENSOR does not warrant that the functions contained in the Software will meet the Customer's requirements or that the operation of the Software will be uninterrupted or error free. The warranty set forth in section 4.1 above does not cover any media or Documentation which has been subjected to damage or abuse. The warranty does not cover any Software which has been altered or changed in any way by any one other than the LICENSOR. LICENSOR is not responsible for problems caused by change in the operating characteristics of the computer hardware or operating system which are made after the delivery of the Software or for problems that occur as a result of the use of LICENSOR's Software in conjunction with non LICENSOR software. |
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| 4.5 |
NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY TO THE MEDIA, THE DOCUMENTATION OR THE SOFTWARE PROGRAM. |
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| 4.6 |
LICENSOR SHALL NOT IN ANY CASE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY EVEN IF LICENSOR OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. |
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| 4.7 |
This warranty allocates risks of product failure between LICENSEE and LICENSOR. LICENSOR's Software and Documentation pricing reflects this allocation of risk and the limitations of liability contained in this warranty. The warranties set forth above are in lieu of all other express warranties, whether oral or written, and the remedies set forth above are LICENSEE's sole and exclusive remedies. The agents and employees of LICENSOR are not authorized to make modifications to this warranty, or additional warranties binding on LICENSOR. Accordingly, additional statements such as advertising or presentations, whether oral or written, do not constitute warranties by LICENSOR and should not be relied upon. |
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| 5.0 |
TERM AND TERMINATION |
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| 5.1 |
This License Agreement shall remain in effect until terminated by:
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a. either party for breach of material terms, promises and warranties hereunder;
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b. the Licensor utilizing its rights under section 5.4 below; or,
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c. until amended in writing by the parties. |
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| 5.2 |
Upon termination, all licenses and rights granted hereunder shall immediately end and each party shall return and make no further use of equipment, property, materials and other items (and all copies thereof) belonging to the other party. All copies of the Software and documentation provided hereunder shall be erased from the Licensee’s server(s). The Customer will also be required to destroy their copies of the Software media or documentation, and may be required to provide written confirmation of such destruction to the Company. |
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| 5.3 |
Neither party to this Agreement shall be liable by reason of termination of this Agreement to the other for compensation, reimbursement, or damages on account of any loss of prospective profits on anticipated sales or on account of expenditures, investments, leases, or other commitments relating to the business or goodwill of either party, notwithstanding any law to the contrary. |
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| 5.4 |
In addition to any other rights under any provision of this Agreement, Licensor may terminate the License should the Licensee utilize the Company’s Software in connection with the following types of internet or web sites:
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a.
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pornographic sites; |
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b.
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sites encouraging illegal activity or racism; |
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c.
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sites providing instructions or discussion about performing illegal activities; |
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d.
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sites which libel or harass individuals; |
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e.
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sites that promote or operate software or services designed to deliver unsolicited bulk e-mail (UBE), or unsolicited commercial e-mail (UCE) if UCE violates the internet service provider’s acceptable use policy; |
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f.
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sites that post material which violates copyright or trademark laws; and, |
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g.
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sites that are, in the sole discretion of the Licensor, otherwise inappropriate. |
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| 5.5 |
The Customer agrees to return the original and all existing copies of the Software and Documentation to LICENSOR, and to comply with any other request by LICENSOR in exercising its termination rights hereunder, within five (5) days after the written request or termination date set forth in the written notice of LICENSOR's termination of this License for any authorized reason under this License Agreement. |
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| 6.0 |
ITEMS TO BE DELIVERED |
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The following items, and no others, shall be installed by LICENSOR: |
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| 6.1 |
Licensed programs (Software) and Documentation as the said Software and Documentation may be changed by LICENSOR from time to time. |
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| 6.2 |
The Customer understands that the obligation to order, purchase, and install the necessary equipment is that of the Customer and its third party suppliers, UNLESS any of such service have been contracted for under an optional clause of this Agreement. The Software cannot be installed or tested until all required services and equipment are on hand and operational. LICENSOR shall have no liability for late or malfunctioning installations caused by late or nonworking equipment. LICENSOR is not engaged in providing or repairing equipment, and has no responsibility to the Customer for any of it. |
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| 7.0 |
TAXES AND GOVERNMENT LICENSES |
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The Customer agrees to pay, upon demand, any and all sales, use, or other similar tax which may be assessed on LICENSOR by any governmental agency on any aspect of the transaction contemplated hereby. The Customer shall be solely responsible for procuring and maintaining any license or franchise required to operate the business in which the Software and database are used. |
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| 8.0 |
INDEMNITY |
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LICENSEE, and its permitted ASSIGNEES, if any, agrees that they, jointly and severally, if more than one individual or entity, shall indemnify and hold LICENSOR harmless from any and all liability and claims against LICENSOR by anyone, which arise out of or in connection with the use of the Software and the database contained therein in the operation of LICENSEE's business. |
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| 9.0 |
MUTUAL OBLIGATIONS - CONFIDENTIALITY |
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| 9.1 |
In the course of performing under this Agreement, the Company and Customer may have access to or be requested to provide information that is confidential to one another ("Confidential Information"). Confidential Information shall include but not be limited to the Software, source code, algorithms, formulas, methods, know-how, processes, designs, new products, developmental work and passwords. |
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| 9.2 |
Confidential Information shall not include information that (1) is or becomes a part of the public domain through no act or omission of the other party; (2) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (3) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (4) is independently developed by the other party. |
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| 9.3 |
The Company and Customer agree to hold each other's Confidential Information in confidence during the term of this Agreement and for a period of five years after termination of this Agreement. The Company and Customer agree, unless required by law, not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Customer acknowledges that it is not a competitor of the Company and agrees not to share this information with any competitors. Customer shall not disclose the results of any performance tests of the Software to any third party without The Company’s prior written approval. |
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| 10.0 |
FORCE MAJEURE |
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Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause beyond the reasonable control of such party. |
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| 11.0 |
CHOICE OF LAW AND VENUE |
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This Agreement shall be governed by the applicable substantive law of the State of Florida. The parties further agree that any suit to enforce either party’s obligations or for damages under this Agreement must be brought in Lee County, in the State of Florida. |
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| 12.0 |
HEADINGS |
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The headings in this Agreement are included for convenience only and shall affect neither the construction nor interpretation of any provision in this Agreement nor affect any of the rights or obligations of the parties to this Agreement. |
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| 13.0 |
INJUNCTIVE RELIEF |
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The Customer acknowledges that in the event they breach any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. The Company shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. The Company's right to obtain injunctive relief shall not limit its right to seek further remedies. |
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| 14.0 |
COSTS OF LITIGATION AND COLLECTION |
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If an action is brought by the Company to enforce its rights under this Agreement, or to collect on any money owed hereunder, the Company shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation, as well as the costs of collection. |
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| 15.0 |
NO WAIVER |
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The failure of the Company to enforce any rights granted hereunder or to take action against the Customer in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. |
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HOSTING SERVICES (if not hosting with us, skip to to 17) |
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If you have not selected the Company to host your web site(s), scroll down to section 17. We offer Internet World Wide Web page hosting, Marketing, and Development. We take our legal and ethical responsibilities seriously. Therefore, we have established the following policies for our customers’ use of our servers and equipment. If you have selected the Company to host your web site(s), by placing an order for said services you agree to pay the charges set forth in the order form, and to abide by the following policies, terms and conditions.
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| 16.1 |
GENERAL POLICY |
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We reserve the right to suspend or cancel a customer's access to any or all services we provided when we decide that the account has been inappropriately used. |
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| 16.2 |
SPECIFIC ACCEPTABLE USE POLICIES |
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| 16.2.1 |
No Server abuse |
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Any attempt to undermine or cause harm to a server, or customer, of ours is strictly prohibited. |
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| 16.2.2 |
No unauthorized use of other people's accounts or computers
We will strongly react to any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include but are not limited to: "internet scamming" (tricking other people into releasing their passwords), password robbery, “hijacking” a site to make it appear to be the source of spam or denial of service attacks, and security hole scanning.
Any unauthorized use of accounts or computers by a customer, whether or not the attacked account or computer belongs to us, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack.
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| 16.3 |
ADDITIONAL LIMITATIONS TO MAINTAIN SERVICE INTEGRITY |
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| 16.3.1 |
NO sites with banners, graphics or cgi scripts running from the customer’s domain which are used on other domains. |
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| 16.3.2 |
NO sites with picture galleries (This is any site where 50% of the files transferred is graphics) |
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| 16.3.3 |
NO sites offering download files or archives. (This is any site where 50% or more of there monthly traffic is from file downloads) |
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| 16.3.4 |
NO sites using more than 30% of system resources |
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| 16.4 |
TRAFFIC LIMITS |
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Traffic will go unmonitored until you reach the specified amount offered with your hosting package. After that, you will be notified of the overage so you can purchase additional bandwith. If you do not respond, your site can be suspended until it is resolved. |
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| 16.5 |
COMMERCIAL ADVERTISING AND EMAIL |
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Unsolicited commercial advertisements are not allowed in e-mail, and will likely result in your account being suspended or cancelled.
Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account suspension or cancellation. See the specific newsgroup or mailing list's charter for whether advertising is allowed or not. "Spamming," or sending a message to many different off-topic newsgroups, is particularly unethical and will be considered a cause for suspension or cancellation of your account.
Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming, unless the individuals have specifically requested to be added to a mailing list on that topic. E-mail is a person-to-person medium, not a broadcast medium.
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| 16.6 |
CHAT ROOMS |
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We do NOT allow clients to install their own chat rooms, UNLESS you have received prior approval from our Support Team. Most chat rooms tend to be large system hogs and we cannot allow them as a regular account option. However, we do provide a choice of Java chat rooms for a small extra charge that will more than fill your needs and run without hindering the performance of the system for others. Note: Parachat rooms are not prohibited under this rule. |
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| 16.7 |
PROGRAMS WHICH RUN IN THE BACKGROUND |
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We do NOT allow programs to run continually in the background UNLESS they have been approved. Requests to run such programs are considered on the individual merits of the request. There will be an extra charge for running background programs, which will be based on the system resources actually used and operational maintenance needed. |
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| 16.8 |
IRC |
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We currently do NOT allow IRC or IRC bots to be operated on our servers. |
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| 16.9 |
PAYMENT POLICIES |
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Accounts must be paid before they will be set up. Setup fees are charged for all new accounts and major account changes and are nonrefundable. All pricing is guaranteed for the term of prepayment. We reserve the right to change prices at any time, unless other terms have been agreed upon. If you become delinquent we will notify you. Any account not brought current within a week (7 days) of e-mail notice may be suspended, at our discretion. The customer is responsible for all money owed on the account from the time the account is established to the time that the customer notifies us in writing that they wish to terminate our services. All payment is in U.S. currency. |
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| 16.10 |
CANCELLATION |
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| 16.10.1 |
We reserve the right to cancel service at any time. If we cancel your services, all fees paid in advance of cancellation will be prorated and the balance refunded to you. Any extra costs which are the result of your violation of our policies (such as excess transfer, excessive space use,..) will be billed to you, the customer, |
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| 16.10.2 |
NOTWITHSTANDING THE LIMITATIONS SET FORTH IN SECTION 4.0 ABOVE, all of our web hosting plans are backed by a 30-day money back guarantee. If you are not completely satisfied with our services or support within the first 30 days of your contract, you will be given a full refund of the contract amount, after deducting setup fees and overages. Setup fees are refundable only if the account order is canceled prior to activation. For web hosting contracts of 3 months or less, the full contract amount less any setup fees and overages will be refunded if we are notified within the first 30 days following activation. No refund is available after the 30th day. For web hosting contracts longer than three months, a refund equal to one half of the contract amount less any setup fees and overages will be given if we are notified prior to the first day of the second half of the contract term. For example, on a twelve-month contract we must receive the notice of cancellation prior to the first day of the sixth month of the contract. No refunds will be given once the second half of the contract term has begun. This policy does not apply to any additional services such as overages, additional disk space, additional POP accounts, etc. Due to security concerns, all account cancellations must be done in writing via US mail or fax with a valid signature of the primary contact of the account, account name, reason for cancellation. Phone requests will not constitute acceptance of any cancellation. If payment was made by check or bank transfer, the zip/postal code of the primary contact. Payment will be made by company check within 15 days of receipt of cancellation. |
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| 16.11 |
LAWFUL PURPOSE |
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We reserve the right to refuse service to anyone, or to suspend or cancel services to anyone. Customers may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to: violations of copyrighted material, posting material legally judged to be threatening or obscene, and posting material protected by trade secrets. We expressly forbid anyone from using servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable, including, but not limited to, pornography, satanic materials, and any and all materials of an “adult” or sexual nature. The designation of any materials as such described above is left entirely to the discretion of our management. |
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| 16.12 |
INDEMNIFICATION |
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Customer agrees that it shall defend, indemnify, save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against us, or our agents, customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it's agents, employees or assigns. Customer agrees to defend, indemnify and hold us harmless against liabilities arising: (1) out of any injury to person or property caused by any products sold or otherwise distributed in connection with our servers; (2) out of any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) from copyright infringement; or, (4) from any defective products sold to customer from our servers. |
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| 16.13 |
DISCLAIMER |
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We will not be responsible for any damages your business may suffer while we host your web site. We make no warranties of any kind, expressed or implied for services we provide. We disclaim any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by us or by conditions beyond our control. We reserve the right to revise these policies at any time.
All customers, including any sub-networks and resellers of ours must adhere to the above policies.
Failure to follow any term or condition above will be grounds for immediate account deactivation.
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| 17. |
INTEGRATION |
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The Parties acknowledge that this License Agreement, with the information on the order form which is hereby incorporated, is the complete and exclusive statement of the parties’ intentions and promises and of the Company’s obligations and responsibilities to the Customer and supersedes any other proposal, quote, representation, or other communication by or on behalf of the Company or its agents relating to the subject matter hereof.
By the Customer submitting their Order, and upon acceptance of the order by the Company, the parties acknowledge that they have read, understand, and agree to all of the terms of this License Agreement. If any term or provision of this Agreement is found void, invalid, or unenforceable, such a finding will not affect the validity of the balance of this License, which shall remain valid and enforceable according to its terms.
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© 2000-2004 United Publishing Group,
a division of Strategic Enterprises, Inc.
This agreement, in whole or in part, may not be reproduced,
copied and/or used in any way.
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