Terms of Service / Software License Agreement

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

Propel Direct

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 Client Software

TERMS OF SERVICE

SERVICE DESCRIPTION; ACCEPTANCE OF TERMS THROUGH USE

The Propel Service ("Service") is being provided to You, the end-user ("You"), by Propel Software Corporation ("Propel"). The Service is a subscription-based content acceleration and data savings 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. 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:

    1. That You are entitled to contract without the consent of another person;
    2. 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;
    3. 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;
    4. 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;
    5. That You are responsible for the results obtained from the use of the Service;
    6. Not to introduce viruses, worms, harmful code and/or Trojan horses on the Internet;
    7. To obtain Internet access service;
    8. To obtain, install and maintain suitable equipment and software as necessary to access the Service;
    9. Not to use the Service for any criminal or illegal activities, or post any information that might be legally actionable;
    10. Not to use the Service for spamming or flaming, to hack or otherwise obtain unauthorized access;
    11. To be responsible for accurately addressing information sent using the Service;
    12. 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;
    13. To comply with all applicable laws, regulations, or conventions, including those related to data privacy, international communications, and exportation of technical or personal data;
    14. Not to delete or alter author attributes or copyright notice, unless expressly permitted in writing by the author or owner;
    15. To give all required notices under these Terms of Service/Software License Agreement in the manner set forth in the Notices section below;
    16. 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;
    17. To pay charges for the Service;
    18. 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;
    19. To provide Propel with the requested identification in connection with security matters;
    20. Not to forward or otherwise propagate chain letters and pyramid schemes, whether or not the recipient wishes to receive such mailings;
    21. 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;
    22. 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;
    23. 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;
    24. 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;
    25. Not to use any kind of program/script/command designed to interfere with another Subscriber's terminal session.
    26. 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.
    27. 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 fourteen (14)-day money back guarantee program using a credit card, cancellation of Your subscription within the first fourteen (14) 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 fourteen (14) day period and for subscribers who did not sign up under Propel's fourteen (14)-day money back guarantee program the following shall apply.

A. Refund Policy: Monthly Billing Subscribers

If you are a monthly subscriber, 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, minus a $15.00 processing fee as specified below, 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 $39.99 Your refund would be $12.99 ($39.99 x .70 - $15.00 = $12.99).

The following refund table applies to Annual Billing Subscriptions:

Month of Service in which Cancellation Occurs

Refund Amount

Month 1

80% of Annual Subscription Fee paid less $15.00

Month 2

70% of Annual Subscription Fee paid less $15.00

Month 3

60% of Annual Subscription Fee paid less $15.00

Month 4

50% of Annual Subscription Fee paid less $15.00

Month 5 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 Service 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, 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 its 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, 2216 O'Toole Avenue, San Jose, CA 95131-1326 USA 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 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. If the Software is otherwise being provided to You by Propel for evaluation purposes, then Your use of the Software is subject to this Agreement and is limited to evaluation purposes for a period ("Evaluation Period") of twenty-one (21) days, or such other period as Propel may designate in writing. Propel may terminate the Evaluation Period, without cause, at any time without notice. Upon completion of the Evaluation Period, You will return to Propel, or erase or destroy Your copy of the Software.

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, 2216 O'Toole Avenue, San Jose, CA 95131-1326 USA.

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 2.4.6 are included.

License for the Python 2.4.6 release is as follows:

PSF LICENSE AGREEMENT FOR PYTHON 2.6.4

  1. This LICENSE AGREEMENT is between the Python Software Foundation ("PSF"), and the Individual or Organization ("Licensee") accessing and otherwise using Python 2.6.4 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 2.6.4 alone or in any derivative version, provided, however, that PSF's License Agreement and PSF's notice of copyright, i.e., "Copyright © 2001-2009 Python Software Foundation; All Rights Reserved" are retained in Python 2.6.4 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 2.6.4 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 2.6.4.
  4. PSF is making Python 2.6.4 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 2.6.4 WILL NOT INFRINGE ANY THIRD PARTY RIGHTS.
  5. PSF SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER USERS OF PYTHON 2.6.4 FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS AS A RESULT OF MODIFYING, DISTRIBUTING, OR OTHERWISE USING PYTHON 2.6.4, 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 2.6.4, Licensee agrees to be bound by the terms and conditions of this License Agreement.

For additional information see:

http://www.python.org/2.6.4/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) 2001-2012 Propel Software Corporation
Portions copyright (C) 2001-2009 Python Software Foundation; All Rights Reserved
Portions developed using the Kakadu software
Also see Sections 12 and 13 above

All rights reserved.

Software covered by U.S. Patent No. 7,054,917

For inquiries please contact: Propel Software Corporation, 2216 O'Toole Avenue, San Jose, California 95131-1326 USA.

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 Direct Terms of Service/Software License Agreement Version 10

29 February 2012