Software License Agreement

Terms & Conditions
Privacy Policy
Terms of Use

Terms & Conditions

NOTICE TO USER:

THIS EPHOX SOFTWARE LICENSE AGREEMENT (‘AGREEMENT’) GOVERNS YOUR USE OF THE SOFTWARE ACCOMPANYING IT. BEFORE CLICKING ‘ACCEPT’ PLEASE CAREFULLY READ THIS AGREEMENT, WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU (‘LICENSEE’, ‘YOU’ OR ‘YOUR’) ARE ACQUIRING A LICENSE TO USE THE ACCOMPANYING SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT CLICK ‘ACCEPT’. BY CLICKING ON ‘ACCEPT’ YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU WILL BE ACQUIRING A LICENSE TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF YOU RECEIVED THE SOFTWARE AS PART OF A NEGOTIATED LICENSE AGREEMENT WITH EPHOX, THE TERMS AND CONDITIONS OF SUCH NEGOTIATED LICENSE AGREEMENT SHALL SUPERSEDE THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXTENT THEY ARE INCONSISTENT. IN THE EVENT THAT A SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY USES OR INSTALLS THE SOFTWARE ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF AND YOU WILL BE DEEMED TO HAVE ACCEPTED ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS IF YOU HAD USED OR INSTALLED THE SOFTWARE. NOTICE TO SYSTEM INTEGRATORS, CONSULTANTS, CONTRACTORS AND OTHER PARTIES WHO DO NOT INTEND TO BE END USERS OF THE SOFTWARE: IF YOU USE OR INSTALL THE SOFTWARE AS AN AGENT ACTING ON BEHALF OF THE LICENSEE, THEN, UNLESS YOU HAVE ENTERED INTO A SEPARATE AGREEMENT WITH EPHOX, (I) YOU AGREE TO DELIVER THIS AGREEMENT TO THE LICENSEE PRIOR TO PROVIDING THE LICENSEE ACCESS TO THE SOFTWARE, AND (II) YOU AGREE THAT YOU WILL NOT RETAIN ANY COPIES OF THE SOFTWARE. OTHERWISE, YOU WILL BE DEEMED TO BE THE USER OF THE SOFTWARE AND BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

 

 

USE OF THE SOFTWARE FOR EVALUATION PURPOSES

IF YOU INTEND TO USE THE SOFTWARE FOR EVALUATION PURPOSES THEN THIS AGREEMENT PERMITS YOU TO USE THE SOFTWARE ONLY FOR THOSE EVALUATION PURPOSES AND DOES NOT CONSTITUTE A LICENSE FOR USE BEYOND THE EVALUATION PERIOD.

 1. Definitions

The following definitions of terms apply to this Agreement and any Product Schedules listed in Exhibit A:

 ‘CPU’ means a single central processing unit of a machine with up to 2 cores. For multi-core CPUs, each 2 cores will count as a single CPU.

‘Development Environment’ means the technical environment in which you use the Software for testing and development purposes only.

‘Disaster Recovery Environment’ means your technical environment designed solely for you to respond to an interruption in services due to an event that creates an inability to provide critical business functions for a material period of time.

‘Domain Names’ means the Internet host name through which a Web site is accessible to Users.

‘Effective Date’ means, unless otherwise specified in the Agreement, the date that you downloaded the Software.

‘Ephox Partner’ means an organization that has a current and valid agreement with Ephox to sell the Software or incorporate the Software in an application.

‘Internal Network’ means your private, proprietary network resource accessible only by employees and individual contractors of a specific corporate enterprise or similar business entity. Internal Network specifically excludes the Internet. Connection by secure links such as VPN or dial up to your Internal Network is considered use over an Internal Network.

‘Major Version’ means any version of the Licensed Software associated with a primary number in the version numbering scheme such as ‘version x.y’ where ‘x’ is the indicator of the Major Version.

‘Permitted Number’ means the authorized number of CPUs, Development Servers, Servers, PVUs, Domain Names, Applications and/or Users as indicated on an invoice provided by Ephox.

‘Processor’ has the same meaning as ‘CPU’.

‘Product’ means a software product produced or sold by Ephox.

‘Product Schedule’ means a schedule of conditions applying to a specific Ephox product that are detailed in Exhibit A of this Agreement.

‘Production Environment’ means the technical environment in which you use the Software for your business purposes.

‘Production Purposes’ means any use purpose other than for Evaluation Purposes prior to purchase of the Software.

‘PVU’ means Processor Value Unit as determined by the IBM calculation that is described at ephox.com/legal/pvu-definition.

'Release' means a version of the Sub-Licensed Software that is designated by the first 2 digits in the numbering nomenclature used by the Sub-Licensed Software version numbering.  Any digits that follow the first 2 will designate the maintenance level of the particular release.

‘Server’ means a network server that contains one or more CPUs.

‘Software’ means (a) all the contents of the files with which this Agreement is provided, including but not limited to (i) Ephox or third party computer information or software and (ii) related explanatory written materials or files (‘Documentation’); and (b) upgrades, modified versions, Major Versions, additions, and copies of the Software, if any, licensed to you by Ephox (collectively, ‘Updates’).

‘Technical Support’ means reasonable technical support (as more specifically set forth in Section 4) for the Software.

‘Updates’ means Releases, minor upgrades, modified versions and additions to the Software.

‘Upgrade & Support’ means the service under which Ephox provides support, maintenance and upgrades to the Licensee as set forth in Section 4.

‘Upgrade & Support Fee’ means a payment in recognition of support, maintenance and upgrades provided by Ephox to the Licensee as part of this Agreement.

 ‘Use’ means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation and the terms and conditions of this Agreement.

‘User’ means any and all (i.e. non-concurrent) natural persons (i.e., not a corporation or other legal entity) who are authorized by you to access and use the Software for your own internal business processes.

‘VPN’ means a private communications network generally used within enterprises to communicate over a public network using secure protocols.

‘Workstation’ means a computer workstation or personal computer that allows the Software to only be accessed by a single processor and that is not used as a network server.

2. Grant of License and Restrictions

2.1     Ephox grants you a limited, non-exclusive and non-transferable license to use the Software listed in the Product Schedule(s) subject to the terms and conditions of this Agreement.  Ephox and its suppliers shall at all times retain ownership of all Software including any documentation and any copies thereof.

2.2     Backup and Disaster Recovery. You may make and install a reasonable number of copies of the Software for backup and archival purposes provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are reproduced.  Ephox shall retain all rights and title to the backup or archival copy.  You may only use such archival copies solely in the event that the primary copy has failed or is destroyed, but in no event may you use such copies concurrently with your Production Environment. You may also install copies of the Software in a Disaster Recovery Environment for use solely in disaster recovery and not for production, development, evaluation or testing purposes other than to ensure that the Software is capable of replacing the primary usage of the Software in case of a disaster.

2.3     Restrictions.  You agree that you will not yourself, or through any parent, subsidiary, affiliate, agent or other third party:

(a) sell, lease, license, sublicense, encumber or otherwise transfer any right in any portion of the Software or documentation;

(b) decompile, disassemble, or reverse engineer any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software;

(c)  create any derivative work (as defined in the United States Copyright Act of 1976, Title 17 USC Section 101 et. Seq.) based on the Software;

(d) without the express permission of Ephox use the Software to provide direct processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a ‘service bureau’ basis or otherwise use or allow others to use the Software for the benefit of any third party;

 (e) use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other U.S. government agency; and

(f)  prevent the Software licensing information contained in the ‘About’ toolbar item or elsewhere from being displayed to any user of the Software.

The Product Schedules contained in Exhibit A may modify these Restrictions.

2.4     No Other Rights Granted. Except as expressly set forth herein, Ephox grants and you receive no other rights or licenses to the Software, derivative works (as defined in the United States Copyright Act of 1976, Title 17 USC Section 101 et. Seq.) or any intellectual property rights related to the Software whether by implication, estoppel or otherwise.

3. Pre-release Software Additional Terms

3.1     If the Software accompanying this Agreement is pre-commercial release Software (‘Pre-release Software’), then the following Section applies.

3.2     You acknowledge that the Software that you have received is a Pre-Release Software version, does not represent final product from Ephox, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to you as is and Ephox disclaims any warranty or liability obligations to you of any kind. Where legal liability cannot be excluded, but it may be limited, Ephox liability and that of its suppliers shall be limited to the sum of fifty dollars (U.S. $50) in total.

3.3     You acknowledge that Ephox has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that Ephox has no express or implied obligation to you to announce or introduce the Pre-release Software and that Ephox may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software is done entirely at your own risk. During the term of this Agreement, if requested by Ephox, you will provide feedback to Ephox regarding testing and use of the Pre-release Software, including error or bug reports.

3.4     Upon receipt of a later unreleased version of the Pre-release Software or release by Ephox of a publicly released commercial version of the Software, whether as a stand-alone product or as a part of a larger product, you agree to abide by the terms and conditions of the Agreement for any such later versions of the Pre-release Software.

4. Upgrade & Support Terms and Conditions

4.1                  Technical Support

4.1.1                  Support Period

If you have purchased Upgrade & Support, then Ephox offers a product upgrade service and access to a technical support service (‘Support’) to you under this Agreement.

Support covers the Software for which it is being purchased. Support extends initially from the Effective Date for a period of twelve (12) months or as renewed in accordance with this Section (the ‘Support Period’).

Support may be renewed by your payment prior to the date of expiration of the then-current Support Fee or other fee as specified in writing (‘Renewal’).

During the Support Period, you will receive services from Ephox as described in Exhibit B issued under this Agreement.

During the Support Period Ephox will provide technical support for problems in the operation of the Software.

4.1.2                  Access to Support

Ephox will provide you with access to the Ephox Online Support Center located at http://ephox.com where you will be provided access to downloads, documentation, community forums and a Web-based support form to submit a support case.  Ephox’s specific support obligations are specified in Exhibit B of this Agreement.

4.1.3                  Support Conditions

Ephox’s obligation to provide technical support is conditioned upon the following: (a) you make reasonable efforts to solve the problem after consulting with Ephox; (b) you provide Ephox with sufficient information and resources to correct the problem either at Ephox’s offices or via remote access to your site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; (c) you promptly install all Updates; and (d) you procure, install and maintain all equipment necessary to operate the Software.

This Agreement does not extend to the operation of third party software and Ephox will not provide you with generic consultation, assistance, or advice.

4.2                  Updates

Ephox will make available to you Updates that Ephox releases during the Support Period. Updates will be advised and made available through http://ephox.com.  Solely Ephox determines the features and the release schedule of all Updates.

4.3                  Maintenance

During the Support Period you may report any Software problem or error to Ephox. If Ephox in its rea­sonable discretion determines that a reported, repro­ducible, material error in the Software exists that sig­nificantly impairs the usability and utility of the Soft­ware, Ephox agrees to use reasonable commercial efforts to correct the problem or error and to pro­vided an Update to resolve the problem or error.

4.4                  Service Exclusions

Ephox is not obligated to provide technical support in the following situations: (a) the Software has been changed, modified or damaged; (b) the problem is caused by your negligence, hardware malfunction or other causes beyond the reasonable control of Ephox; (c) the problem is traced to a third party software not licensed through Ephox; or (d) you have not paid fees when due.

Ephox will have no obligation to support or maintain any Major Version of Software that is not the then current Release of the Software or the immediately preceding Release of the Software for a period of one hundred and eighty (180) days after it is first superseded.

5. Term and Termination

This Agreement commences on the Effective Date and will remain in force until it is terminated (as set forth herein).  Your rights under this Agreement will terminate automatically without notice from Ephox if: (a) you fail to comply with any term(s) of this Agreement or (b) you terminate your business activities or become insolvent, admit in writing to your inability to pay your debts as they mature, make an assignment for the benefit of creditors, or become subject to direct control of a trustee, receiver or similar authority. Upon termination, you agree to cease using the Software and to destroy all copies, full or partial, of the Software.

6. Limited Warranty

6.1     Except as otherwise provided in Section 3, Ephox warrants that the Software substantially conforms to the written specifications therefore existing at the time of delivery.  Said warranty is for a period of ninety (90) days from and after the Effective Date (the ‘Warranty Period’). Notwithstanding the foregoing, Ephox does not warrant that the Software will operate without interruption or that the performance of said Software will be error free.  Ephox cannot guarantee the privacy, security, authenticity and non-corruption of any information transmitted through or stored on any server maintained or used by you in connection with the Software. Ephox is not responsible for any delays, errors, crashes, failures to perform, disruptions or other problems with the Software caused by or resulting from any act, omission or condition beyond Ephox’s reasonable control.  The foregoing warranties shall not apply to the extent that the Ephox Software is used or interfaced with other software, data or operating systems that are not functioning properly or if the Ephox Software has been modified in a manner not authorized by Ephox. 

6.2     The warranties set forth above are made to and for your benefit only and will be enforceable against Ephox only if:

(a) The Ephox Software has been properly installed and has been used at all times in accordance with the documentation and this Agreement;

(b) All modifications, alterations or additions to the Ephox Software, if any, have been made by Ephox; and

(c) You have not made modifications, alterations or additions to the Ephox Software that cause it to deviate from the documentation

6.3     All warranty claims must be made, along with proof of purchase, within the Warranty Period. If the Software does not perform substantially in accordance with the documentation, your sole and exclusive remedy and the entire liability of Ephox for breach of warranty shall be limited to the refund of the license fee you paid for the Software.

7. Audit

Upon Ephox’s reasonable belief that any term of this Agreement has been violated, Licensee agrees to allow an independent third party to inspect Licensee’s site, books and records to determine whether Licensee has complied with the terms of this Agreement. The third party will be chosen by Ephox and approved by Licensee, whose approval must not be unreasonably withheld. The reviews will occur at mutually agreeable times during normal business hours. The third party will be instructed to keep all information learned strictly confidential except as it relates to breaches of this Agreement. If such an audit discloses a violation of this Agreement Licensee agrees to pay the cost of the audit plus interest on the deficiency from the time due until paid at the lesser of eighteen percent per annum or the maximum allowed by law.

8. Disclaimer

Except as expressly set forth in section 6 no other warranty, express or implied, is made with respect to the Software or services provided herein.  Ephox specifically disclaims any other representations and warranties including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights and those arising from a course of dealing or performance or usage of trade.  Ephox specifically disclaims any representation and warranty that the Software will be error free or will function uninterrupted, that any errors or defects in the Software can or will be corrected, that any such correction can or will be made in a timely manner, that the Software will operate in the combinations which you may select for your use, will produce the results you desire, or that the Software functionality will meet your requirements.

9. Limitation of Liability

Ephox’s total liability under this Agreement or for breach of this Agreement shall be limited to fifty dollars (USD $50).  In no event shall Ephox be liable for costs of procurement of substitute goods or technology, loss of profits, or for any indirect, special, exemplary, punitive, consequential or incidental damages, however caused, whether for breach of warranty, breach of contract, repudiation of contract, negligence or otherwise, even if Ephox has been advised of the possibility of such damages.

In no event will Ephox be liable for fines or penalties imposed on you. Furthermore, Ephox disclaims any liability for loss of or inaccuracy of your data or the data maintained by you on behalf of others. Ephox also disclaims liability or responsibility for violations of applicable privacy laws and regulations, or for breaches of security of hardware, software or systems for which it is hereby agreed that you shall have sole and exclusive responsibility.

You agree that Ephox will not be liable for loss of or damage to goodwill or ‘costs of cover’ (including, without limitation, costs of procuring substitute products or services) which arise directly or indirectly out of the purchase, sale, use of and/or inability to use of Software provided in connection with this Agreement whether such damages are based upon contract, tort, intentional conduct, equity or pursuant to some other theory, including, without limitation, breach of warranty, negligence or strict liability, whether the possibility of such damages was made known to or was foreseeable by Ephox and whether such damages are asserted by you or some other party.

You agree to assume the responsibility for insuring against or otherwise bearing the risk of damages in excess of the liability of Ephox.  The limitations of liability set forth herein are intended to limit Ephox’s liability and will apply notwithstanding the failure of the essential purpose of any remedy. 

Any action, claim or proceeding relating to these terms and conditions, and the Software provided in connection with the Agreement or the transactions contemplated by the terms and conditions of said Agreement, must be brought within twelve (12) months following the action or event giving rise to such action, claim or proceeding.

You agree to use reasonable efforts to mitigate any damages sustained by you pursuant to or in connection with the use of or your inability to use the Software provided in connection with this Agreement. 

Notwithstanding the foregoing, the disclaimer of warranties and/or the disclaimer and/or limitation of damages will not be deemed to disclaim liability specifically imposed on Ephox by statute or regulation, to the extent such liability cannot be waived or disclaimed. 

Some jurisdictions do not allow the disclaimer of implied warranties or the exclusion or limitation of liability for consequential or incidental damages, so the disclaimers or limitations set forth herein may not fully apply to you.  To the extent that the disclaimers and/or limitations set forth herein are not fully enforceable under applicable law, you may have other legal rights which vary from jurisdiction to jurisdiction.

10. Remedies for Infringement

In the event that Ephox reasonably believes that the Software may be subject to an infringement claim, Ephox may, at its opinion, either: (1) substitute substantially equivalent non-infringing Software; (2) modify the infringing item so that it no longer infringes but remains substantially equivalent; (3) if none of the foregoing is commercially feasible, Ephox may terminate the license granted hereunder.

THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGE­MENT OF PROPRIETARY RIGHTS OF ANY KIND.

11. General

11.1                  Assignment

Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Ephox, which shall not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will vest to the benefit of the parties and their respective successors and assign­ors. Notwithstanding the foregoing, no transfer or assign­ment of your rights hereunder shall be effective unless and until the purported assignee agrees in writing to be bound by all of your obli­gations hereunder.

11.2                  Waiver

A party’s failure to act under this Agreement shall not indicate a waiver of the party’s rights under this Agreement. No waiver of any provision of this Agreement shall be valid unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement or the waiver by ei­ther party of any breach of this Agree­ment shall not prevent any subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach.

11.3                  U.S. Government End Users

The Software is a ‘Commercial Item,’ as that term is defined at 48 C.F.R. ß2.101, consisting of ‘Commercial Computer Software’ as such term is used in 48 C.F.R. ß12.212. Consistent with 48 C.F.R. ß12.212, the Commercial Computer Software is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

11.4                  US Export Restrictions

The Software is subject to certain export restrictions of the United States Government. If you are (a) in a country to which export from the United States is restricted for anti-terrorism reasons, or a national of any such country, wherever located, (b) in a country to which the United States has embargoed or restricted the export of goods or services, or a national of any such country, wherever located, or (c) a person or entity who has been prohibited from participating in United States export transactions by any agency of the United States Government, then you may not install, download, access, use, or license the Software. By accepting this License, you warrant and represent to Ephox that (1) you do not match the criteria set forth in (a), (b), or (c) above, (2) that you will not export or re-export the Software to any country, person, or entity subject to U.S. export restrictions, including those persons and entities that match the criteria set forth in (a), (b), or (c) above, and (3) that neither the United States Bureau of Industry and Security, nor any other U.S. federal agency, has suspended, revoked, or denied your export privileges.

11.5                  Governing Law

This Agreement is governed by and construed and enforced in accordance with the substantive laws in force in the State of California, USA, and in no event shall the United Nations Convention on Contracts for the International Sale of Goods govern this Agreement.

 

Exhibit A

Product Schedules

Conditions of Use:

Processor License

1. You may install and Use the Software on no more than the Permitted Number of Servers as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of Users.
2. This Product may not be used with IBM or Red Dot Web Content Management System Products.

Application License

1. You may install and Use the Software in the Permitted Number of Applications as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of Users.
2. This Product may not be used with IBM or Red Dot Web Content Management System Products.

 

Conditions of Use:

1. IBM Web Content Management Environment: Editlive! for IBM LWCM Enterprise Edition is to be licensed for all PVUs running IBM Web Content Management
2. Production License: If you obtained a valid EditLive! for IBM LWCM Enterprise Edition license, you may install and Use the Software on Servers with no more than the Permitted Number of PVUs as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of client computers to the Server(s).
3. Development License: If you obtained a valid EditLive! for IBM LWCM Enterprise Edition license, you may install and Use the Software on Servers with no more than the Permitted Number of PVUs as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of client computers to the Server(s).

 

Conditions of Use:

1. EditLive! for IBM QUICKR. If you obtained a valid EditLive! for IBM QUICKR license, you may install the Software on an IBM QUICKR Server and enable Use of the Software by no more than the Permitted Number of Users as specified in a receipt or receipts provided by Ephox.
2. EditLive! for IBM QUICKR Enterprise. If you obtained a valid EditLive! for IBM QUICKR Enterprise license, you may install the Software on an IBM QUICKR Server and enable Use of the Software by no more than the Permitted Number of Users as specified in a receipt or receipts provided by Ephox.

 

Conditions of Use:

1. Production License: You may install and Use the Software on Servers with no more than the Permitted Number of Users as specified in a receipt or receipts provided by Ephox.
2. Development License: You may install and Use the Software on Servers with no more than the Permitted Number of Users as specified in a receipt or receipts provided by Ephox.

 

Conditions of Use:

1. Content item license. You may install and Use the Software on any number of Servers.  Use is limited to indexing and reporting on the Content Items contained within a single Web Content Manager Instance up to the maximum Permitted Number of Content Items as specified in a receipt or receipts provided by Ephox.  You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.

 

Conditions of Use:

1. You may install and Use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.

Special Conditions and Agreement Variations

1. This product contains code licensed under an agreement with Moxiecode AG ('Moxiecode'). Moxiecode remains the owner of the trademark “TinyMCE” and warrants the ownership of its intellectual property.
2. Ephox Corporation and MoxieCode AG notices and branding may not be removed from the Software.
3. Section 2.3(b) of the Agreement is omitted.

 

Conditions of Use:

1. You may install and Use the Software on Server(s) with no more than the Permitted Number of Processors or other method as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of client computers to the Server(s).

Support

1. The provisions of Section 4 of the Agreement do not apply to this License.
2. Licensee will be not be provided with Support.
3. The Licensee is not entitled to upgrades to the Software.
4. Licensee may contribute to online forums.

Special Conditions and Agreement Variations

1. This product contains code licensed under an agreement with Moxiecode AG ('Moxiecode'). Moxiecode remains the owner of the trademark “TinyMCE” and warrants the ownership of its intellectual property.
2. Ephox Corporation and MoxieCode AG notices and branding may not be removed from the Software.
3. Section 2.3(b) of the Agreement is omitted.

 

Ephox Enterprise TinyMCE Plug-Ins (including the Power Paste Plug-In)

 Evaluation use: The evaluation period is 30 days after download. These product must not be used for evaluation purposes after the elapse of 30 days.

Product use: You may install and Use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.

Special Conditions and Agreement Variations
This product contains code licensed under an agreement with Moxiecode AG ('Moxiecode'). Moxiecode remains the owner of the trademark 'TinyMCE' and warrants the ownership of its intellectual property. Ephox Corporation and MoxieCode AG notices and branding may not be removed from the Software.

 

Conditions of Use:

Processor License

1. You may install and Use the Software on no more than the Permitted Number of Servers as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of Users.

Application License

1. You may install and Use the Software in the Permitted Number of Applications as specified in a receipt or receipts provided by Ephox. You may connect an unlimited number of Users.

 

 

Exhibit B

SUPPORT LEVEL DEFINITIONS

EPHOX TECHNICAL SUPPORT SERVICE LEVELS

Ephox undertakes to remedy problems in accordance with the following Service Levels.

(a) Ephox Technical Support Service Level - Problem Category 1:

Response times within the Service Hours
4 hours

Workaround times within the Service Hour: 24 hours

(b) Ephox Technical Support Service Level - Problem Category 2:

Response times within the Service Hours
8 hours

Workaround times within the Service Hour: 36 hours

(c) Ephox Technical Support Service Level - Problem Category 3:

Response times within the Service Hours: 24 hours

Workaround times within the Service Hours: 48 hours

SERVICE HOURS

Ephox’s Service Hours:

(a) UK office: 9:00 AM to 5:00 PM Monday to Friday local time excluding UK bank holidays.

(b) California, US office: 9:00 AM to 5:00 PM Monday to Friday local time excluding US public holidays.

(c) Queensland, Australia office: 7:30 AM to 3:30 PM Monday to Friday local time excluding Queensland public holidays

Office contact information available at http://ephox.com/about/offices

PROBLEM CATEGORIES

 (a) Category 1:

Effective use (commercially tenable use) is not possible due to such malfunctions, or is unreasonably restricted or impaired.

(b) Category 2:

Effective use of the Software is not gravely impaired, so that working with the Software according to the specifications stipulated (Software documentation) is possible.

(c) Category 3:

Effective use is not restricted due to this malfunction.

The categorization of these malfunctions into one of the malfunction classes is advised at the time that the malfunction is reported.

REPORTING OF PROBLEMS

All problems are to be reported by a Licensee representative through the Ephox technical support form on the Ephox website at: http://ephox.com/support/ticket. Ephox’s response to support requests submitted by email will be delayed.

After submission include the Ephox Technical Support case number that was advised by email in response to the initial reporting.

APPLICATION TO EPHOX PRODUCTS

Ephox technical support applies only to the current Release of the Licensed Software and the immediately preceding Release of the Licensed Software for  one hundred and eighty (180) days after the date it was superseded.

 

Ephox Corporation 1 February 2012 © Copyright 2012 Ephox Corporation. Ephox, EditLive and WebRadar are registered trademarks of Ephox Corporation. TinyMCE is a registered trademark of Moxiecode AB.

 

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Ephox Corporation Privacy Policy

PLEASE READ THIS PRIVACY POLICY CAREFULLY.  BY ACCESSING OR USING OUR WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS PRIVACY POLICY AND THE TERMS OF USE AGREEMENT ON THIS WEBSITE.  IF YOU DO NOT AGREE TO THIS PRIVACY POLICY, PLEASE DO NOT USE THIS WEBSITE. YOU SHOULD CHECK THIS POLICY REGULARLY TO SEE IF ANY CHANGES HAVE BEEN MADE.

This Privacy Policy is effective as of: 1st July 2010.

Your privacy is important, so Ephox Corporation has created the following Privacy Policy to let you know what information we collect when you visit our website, ephox.com (“Site”), why we collect it and how it is used. This Privacy Policy explains the data collection and use practices of the Site; it does not apply to other online sites, products or services.  The terms “you,” “your,” “yours,” and “user” refer to the customer, purchaser, user or visitor utilizing our Site.  The terms “Company,” “we,” “us,” and “our” refer to Ephox Corporation.

By using the Site, you consent to the data collection and use practices prescribed in this Privacy Policy.  We may periodically make changes to this Privacy Policy that we will include on this page.  It is your responsibility to review this Privacy Policy frequently and remain informed about any changes to it, so we encourage you to visit this page often.

1. Personally Identifiable Information

“Personally Identifiable Information” means any information that may be used to identify an individual, including, but not limited to, a first and last name, home or other physical address, an email address, phone number or other contact information, whether at work or at home.  Company collects the following Personally Identifiable Information from you when you use our Site: first and last name, address (including zip code), email address, telephone number, credit card number, credit card billing address, credit card expiration date, authentication data, company, country, and such other information. Company also automatically receives and records information on our server logs from your browser, including your internet protocol (IP) address, cookie information and the page you request.  We collect and store Personally Identifiable Information when you register to use our Site, ask a question, complete a form, conduct a transaction, or send us an email. You can choose not to provide us with certain information, but then you might not be able to take advantage of many of our features and we may not be able to provide you with certain services. 

We use your Personally Identifiable Information to complete transactions, respond to your requests, answer your questions, deliver the products and services you request, and notify you of promotions, updates, or special offers that we think may interest you. In addition, Personally Identifiable Information is used to provide the products and services that you have ordered or requested, to process payment information, to process orders, to send order confirmations, to provide customer service, optimize the operation of the Site, enhance our promotional and marketing activities, improve our products and services, to share with third parties as described in this Privacy Policy, trouble shoot, perform administrative tasks, handle disputes, enforce our agreements, comply with laws and regulations, cooperate with law enforcement activities, and other purposes that are necessary for us to provide vouchers, products and/or services you requested from us.  If you use our Site or a link to our Site to send information about a product or service to another person, we may collect and store your Personally Identifiable Information, and the Personally Identifiable Information of any recipient. We may use the recipient’s Personally Identifiable Information to allow him or her to view or access the information you requested we provide.

For Personally Identifiable Information provided if and when applying for a job with us, we will use that information only to contact you regarding job opportunities that may be of interest. This information may also be used to contact you about announcements, administration, requests or inquires, your orders and account, changes to our Site or policies, promotional offerings and other marketing activities, and requesting feedback through surveys and questionnaires.

We may from time to time send you promotional emails relating to our product and services offerings. You are given the opportunity to opt-out of receiving promotional e-mails after registering an account on the Site by simply following the "unsubscribe" instructions that appear in every email from us, or updating your preferences at: http://ephox.com/subscriptions/.

2. Non-Personally Identifiable Information 

We, or our third party service providers, collect and store certain other information automatically whenever you interact with the Site.  For example, we collect your internet protocol (IP) address, URL, browser information and reference site domain name every time you visit the Site.  We also collect information regarding customer traffic patterns, site usage, hits to our server, Site, page views, date and time of your query, and navigational patterns. The information that is collected in this manner does not provide us with any Personally Identifiable Information about users. This non-personally identifiable information assists us in tracking the location of our users, helps determine high traffic areas and facilitates analysis of the most effective ways to communicate with our users. As part of that ongoing analysis, we may also use devices called “web beacons” to help us identify when emails sent to you have been received and read.

Like many web sites, we also use standard technologies such as “cookies,” which are files placed on your computer’s hard drive by the sites you visit.  Cookies are small text files stored by your browser in your computer when you visit our Site. Websites use temporary cookies called “session” cookies to ensure that you are recognized when you move from page to page within one site and that any information you have entered is remembered. Websites also use cookies called “persistent” cookies to enable a website to remember you on subsequent visits, speeding up or enhancing your experience of services or functions offered. We may install both persistent and session cookies when you visit our Site. We use cookies to improve our Site and make it easier to use. Cookies permit us to recognize users and avoid repetitive requests for the same information.  Most browsers will accept cookies until you change your browser settings to refuse them. If you block or refuse to accept cookies, or delete cookies after visiting our Site, you may not be able to access or use certain features or functions of our Site.

The non-personally identifiable information we collect is also used to analyze and improve the Site and to help us provide our customers with a fulfilling and pleasant online experience. We may also use the non-personally identifiable information for trouble shooting, performing administrative tasks, managing the Site, complying with laws and regulations, and to cooperate with law enforcement activities. We also may use this information in the aggregate to analyze Site usage and to gather broad demographic information.

3. Is The Information Shared or Disclosed?

Company does not rent or sell the Personally Identifiable Information it collects about you to or with third parties.  Information collected from you is used to complete and support your purchases from and use of the Site. Company may disclose Personally Identifiable Information if required to do so by law or in the belief that such action is necessary to: (a) comply with law or legal process, court order or a subpoena served on Company or the Site to cooperate with law enforcement authorities; (b) investigate, prevent or take action regarding suspected or actual illegal activity or fraud on the Site; (c) protect and defend the rights, property or safety of us or Service Providers, licensees, business partners, agents, customers, users, or others; or (d) act in situations involving actual or potential threats to the physical safety of any person, violations of our agreements, abuse of this Site, security breaches of this Site, or as necessary to protect our systems, business, users or others. We may disclose the information obtained from you through the Site, including Personally Identifiable Information, to a successor entity as part of a merger, acquisition or other sale of our assets or business or should we file for bankruptcy.

In addition, we may disclose aggregated information to advertisers.  In these situations, we do not disclose to these entities any information that could be used to personally identify you. We may disclose volume or usage statistical information as a representative audience to advertisers.

We may contract with third-party providers, business partners or persons to provide certain products and services, including without limitation, operating, administering, maintaining or hosting the Site, payment processing, and authorization, distribution, data management, marketing and promotional support, trouble shooting, customer support, goods and services, or companies that offer affinity, frequent-user, and reward programs, etc., (“Service Providers”).  We provide the Service Providers with the information needed for them to perform these services with the requirement that they use the information only in connection with their performance of these services for us.  Our Service Providers may enlist third parties to perform services related to the operation of our business.  Examples of these services include payment processing and authorization, order fulfillment and shipping, and Site hosting, marketing or evaluation.  Our Service Providers may provide Personally Identifiable Information to these third parties, but we authorize them to use this information only in connection with the services the Service Providers perform for us.  We disclaim all responsibility or liability for, and you hereby agree to hold us harmless from, the actions of such Service Providers. The use of your Personally Identifiable Information is subject to the privacy practices of such Service Providers, and their third parties, and the actions of such Service Providers, and their third parties, are outside of our control.

4. How You Can Access or Change Your Information

If you have signed up for an account with us on the Site, you can access or change your Personally Identifiable Information by logging into your account and editing your profile. You are responsible for maintaining the secrecy of your password and account information at all times. 

If you do not have an account with us accessible on the Site, you can access or change your Personally Identifiable Information that we collect online and maintain by emailing us at legal@ephox.com.

We may retain original and updated information for reasons such as technical constraints, dispute resolution, troubleshooting, record retention, and enforcement of our agreements.  For security purposes, we may request information to help verify your identity before granting access or making changes to your information.

5. Notice of Privacy Rights of California Residents

California Civil Code Section 1798.83 (“Code”) permits users of our Site who are California residents and have provided Personally Identifiable Information to us to request from us certain information regarding our disclosure of Personally Identifiable Information to third parties for their direct marketing purposes.

As required by the Code, at your request we will provide you with the categories of Personally Identifiable Information that we collect through the Site and the categories of third party persons or entities with whom such Personally Identifiable Information may be shared for direct marketing purposes. California law requires us to inform you, at your request, of (a) the categories of Personally Identifiable Information we collect and the third parties with whom we share that information; (b) the names and addresses of those third parties; and (c) examples of the products marketed by those third parties. To make such a request, please send an e-mail to legal@ephox.com or write us at: 135 University Ave, Floor 2, Palo Alto, CA 94301-1629, United States of America.

The Code allows you to control the parties with whom we share Personally Identifiable Information and the specific Personally Identifiable Information that you do not wish to be shared with those third parties. When contacting us, please indicate your name, address, email address, and what Personally Identifiable Information you do not want us to share with third parties for direct marketing purposes. The request should be emailed to the attention of our Legal Department, legal@ephox.com and labeled “California Customer Choice Notice.” Please allow 30 days for a response. Please note that there is no charge for controlling the sharing of your Personally Identifiable Information or for processing this request.

We are only required to respond to one request per customer each year, and we are not required to respond to requests made by means other than through the above email address.

6. The Security of Your Information

To help protect the privacy of the personal information you transmit through use of the Site, we use commercially reasonable security practices that are technically feasible for us to protect the user data we collect against unauthorized access, including without limitation, physical, technical, and administrative safeguards. Except as specified in this Privacy Policy, we use commercially reasonable efforts to limit access to your personal information to our employees, agents, and officers who need the information to perform their responsibilities. However, please be aware that the Site and our services are run on software, hardware and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control.  We cannot guarantee the security of the information on and sent from our Site, and are not responsible for the acts and omissions of any third parties who receive the information. Please be aware that despite our best intentions and the guidelines outlined in this Privacy Policy, no data transmission over the internet can be guaranteed to be 100% secure.

7. What Happens When You Link To or From Another Site

The Site may contain links to other sites operated by Service Providers, our affiliates or other third parties.  We are not responsible for the privacy policies, practices or contents of such other sites.  Please be advised that the practices described in this Privacy Policy do not apply to information gathered through other sites.  When you leave the Site the privacy policies and practices of that other site apply; we encourage you to be aware of those privacy policies and practices when you are on those other sites and submitting Personally Identifiable Information. You are responsible for reviewing the privacy policies and practices of each and every site that you visit. 

8. International Transfers

Personally Identifiable Information collected on the Site may be stored and processed in the United States or any other country in which Company or its affiliates, subsidiaries or agents maintain facilities, and by using the Site, you consent to any such transfer of information outside of your country.

You agree to comply with all local laws, rules and regulations regarding online conduct and acceptable content.  Without limiting the generality of the foregoing, you agree to comply with all applicable laws, rules and regulations regarding the transmission of data exported from the United States or the country in which you reside.

9. Children

This Site is not intended for or directed to persons under the age of 13.  Any person who provides their information to Company through the Site or any other part of the Site represents to Company that they are 13 years of age or older.

10. Your Consent To This Privacy Policy and Updates.

By using the Site, you agree to this Privacy Policy.  This is our entire and exclusive Privacy Policy and it supersedes any earlier version.

We may occasionally update this Privacy Policy.  When we do, we will indicate the date that this Privacy Policy was last updated.  Any changes we make will be effective immediately upon notice, which we may provide by means including, without limitation, posting a prominent notice on the Site or sending an email to the address associated with your account. We are not responsible for your failure to receive an email due to the actions of your ISP or any email filtering service. Consequently, you should add ephox.com to the list of domains approved to send you email.  Your continued use of the Site after such notice will be deemed acceptance of such changes.  It is your responsibility to review this Privacy Policy frequently and remain informed about any changes to it, so be sure to return to this page periodically to ensure familiarity with the most current version of this Privacy Policy.  If we make changes to this Privacy Policy and you continue to use our Site, you are agreeing to this Privacy Policy and any updates. We will only use Personally Identifiable Information in accordance with the Privacy Policy that was in effect at the time the information was collected.

11. Contacting Company

If you have any questions regarding this Privacy Policy, please contact us via email at legal@ephox.com or by postal mail at 135 University Ave, Floor 2, Palo Alto, CA 94301-1629, United States of America. 

Updated: 27 July 2010

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Ephox Corporation Terms of Use

PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY BEFORE USING THIS SITE.  Ephox Corporation (“Company,” “we,” “us,” or “our”) provides the ephox.com web site (the “Site”) subject to your compliance with the terms and conditions set forth in this agreement (the “Agreement”).  This Agreement governs the relationship between Company and you, the Site visitor and/or member (“you”) with respect to your use of the Site.  IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT.  BY USING THE SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SITE.

We reserve the right at any time to:

a. Change the terms and conditions of this Agreement;

b. Change the Site, including eliminating or discontinuing any Content (as defined below) on or feature of the Site; or

c. Change any fees or charges for use of the Site.

Any changes we make will be effective immediately upon notice, which we may provide by means including, without limitation, posting a prominent notice on the Site or sending an email to the address associated with your account. We are not responsible for your failure to receive an email due to the actions of your ISP or any email filtering service. Consequently, you should add our Site to the list of domains approved to send you email.  Your continued use of the Site after such notice will be deemed acceptance of such changes.  Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.  The revised Agreement or Privacy Policy will be effective when posted. If we make changes to this Agreement or our Privacy Policy and you continue to use our Site, you are agreeing to the revised Agreement and our Privacy Policy.

1. Content

 Through the Site, you have access to a variety of resources and content. These include: (a) software ("Software"); (b) information, content, and materials provided through the Site, including any data, text, graphics, images, articles, audio and video clips, logos, icons, links, web pages, messages, text, images, photographs, graphics, audio and video such as podcasts and webcasts, demonstrations, and documents such as press releases, white papers and product data sheets ("Materials"); and (c) forums, discussion groups, chat areas, bulletin boards, blogs, comments, e-mailing list, and other services in connection with which you can upload, download, share, email, post, publish, transmit or otherwise access or make available Content (as defined below) ("Forums"). Software, Materials, Forum, and other information, content and services are collectively referred to as "Content." By accessing or using the Site or the Content provided on or through the Site, you agree to follow and be bound by these Terms of Use and our Privacy Policy .

2.  Materials

Company grants you a limited right to access and use the Site and Materials solely for your personal use. Unless otherwise specified on the Site, you may download Materials displayed on the Site, and may use the downloaded Materials, solely for your personal, informational, and noncommercial use.  You may print a single copy of any textual Material available for downloading on the Site, solely for your personal, informational and noncommercial use.  You must retain all intellectual property and other proprietary or restrictive notices on downloaded and copied Materials, and any such downloads or copies are subject to the terms of this Agreement.  Further, the Materials remain the property of Company or its licensors or suppliers.  Use or downloading of the Materials is conditioned on the terms of this Agreement and acceptance of the terms of any license agreements relating to such Materials, including agreements of third parties.  By acquiring or using the Materials, you agree to such terms.  You may not download, copy or use any of the Materials except as expressly authorized by this Agreement and, in any event, you may not distribute, modify, copy, transmit, publish, publicly display or sell, license, or create derivative works of the Materials without the prior written consent of Company or, if so indicated in writing by Company, its licensors or suppliers. 

3. Software

Your use of Software is subject to all agreements such as a license agreement or user agreement that accompanies or is included with the Software, ordering documents, exhibits, and other terms and conditions that apply ("License Terms"). In the event that Software is provided on or through the Site and is not licensed for your use through License Terms specific to the Software, you may use the Software subject to the following: (a) the Software may be used solely for your personal or internal business, and informational and noncommercial purposes; (b) the Software may not be modified or altered in any way; and (c) the Software may not be redistributed.

If you download Software from the Site, such Software is licensed on a limited basis to you by us or the owner of such Software.  Title to the Software is not transferred to you.  We retain all right, title and interest in and to the Software, and all intellectual property rights therein.  You may not re-sell, decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-perceivable form, or transfer the Software to any third party.

4. Forums

Forums are provided as a convenience to users and Ephox is not obligated to provide any technical support for, or participate in, the Forum. While the Forum may include information regarding Ephox products and services, including information from Ephox employees, they are not an official customer support channel for Ephox. You may use Forums subject to the following: (a) Forums may be used solely for your personal, informational, and noncommercial purposes; (b) Content provided on or through the Forums may not be redistributed; and (c) personal data about other users may not be stored or collected except where expressly authorized by Ephox.

Please note that, because we and our designees host Forums found on the Site and, therefore, redistribute materials you give to us, we require certain rights in those materials. Accordingly, by sending or transmitting to us creative suggestions, ideas, notes, concepts, information, data, content, or other materials (collectively, “Submissions”), or by posting such Submissions to any area of the Site, you grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, publish, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. You represent and warrant that you have the relevant rights and licenses to upload, post, or transmit the Submissions. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions.

Information on our Forums is provided by our staff and other contributors, some of whom use anonymous screen names and are people not otherwise connected with Company.  You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive.  We neither endorse nor are responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Site or Forums by third parties, whether such third parties are visitors to the Site, members of the Company community or others.  The opinions expressed in the Forums reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of Company.  We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information.  Under no circumstances will we or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained through the Site.

We have no obligation to monitor the Site or the Forums, or any Submissions or other Materials that you or other third parties transmit or post on the Site or the Forums. You acknowledge and agree that we have the right (but not the obligation) to monitor the Site and the Forums and the Submissions and Materials you transmit or post; to alter or remove any such Materials (including, without limitation, any posting to a Forum); to disclose such Materials and the circumstances surrounding their transmission to any third party in order to operate the Site properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests.

5. Registration

The Site and its services are not directed toward children under the age of 13.  If you are under the age of 13, you are not permitted to use the Site or its services. The services are not available to any users suspended or removed from the system by Company for any reason.

Some areas of the Site may require you to be or become a Member.  You cannot have more than one active Member account. Additionally, you are prohibited from selling, trading, or otherwise transferring your Member account to another party. If you do not comply with these and the other terms under this Agreement, you may not use the Content or the Site.

In consideration of your use of the Site, you represent that you are of an age to form a legally binding contract and you are not prohibited from receiving services under the laws of the United States or any other applicable jurisdiction. When and if you register to become a member of this Site, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by our registration form (including your email address), and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, or if we suspect that any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate this Agreement, your Membership and your use of the Site.

As part of the registration process, you will be asked to select a username and password.  We may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion.  You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party.  If you have reason to believe that your account with us is no longer secure, you must promptly change your password by immediately notifying us of the problem, by email addressed to legal@ephox.com.  You are entirely responsible for maintaining the confidentiality of your username and password and for any and all activities (including purchases, as applicable) that are conducted through your account.

6. Code of Conduct 

While using the Site and Content, you agree not to:

1. Restrict or inhibit any other visitor or member from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
2. Bypass any measures used by us to prevent or restrict access to the Site or portions of the Site;
3. Use the Site and Content for any unlawful purpose;
4. Express or imply that any statements you make are endorsed by us, without our prior written consent;
5. Transmit or post (a) any content or information that is harmful, threatening, harassing, hateful, vulgar, profane, unlawful, fraudulent, abusive, libelous, defamatory, obscene or otherwise objectionable; including, but not limited to, any material or communications which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws, regulations, codes or rules of any jurisdiction; (b) any content that infringes our or any third party’s intellectual property, proprietary, trade secrets, or other rights; (c) any impersonations of any third parties or other users or provide any kind of false or inaccurate information; and (d) any material, non-public information about companies without the authorization to do so;
6. Engage in spamming or flooding;
7. Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
8. Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Site or Content;
9. Remove any copyright, trademark or other proprietary rights notices contained in the Site or Content;
10. “Frame” or “mirror” any part of the Site without our prior written authorization;
11. Create a link to any page of or content on the Site or other URL unless specifically authorized by Company;
12. Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents;
13. Harvest or collect information about Site visitors or members without their express consent;
14. Caching, uploading, posting, or transmitting any content that you do not have a right to make available (such as the intellectual property of another party); and 
15. Any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, systems or servers.

While using the Site and Content, you agree to comply with all applicable laws, rules and regulations. If you use or access this Site in contravention of the terms of this Agreement, or if you have repeatedly violated the terms of this Agreement or a third party’s copyright, we reserve the right to terminate the permissions or rights granted to you by Company and we reserve all of our rights under this Agreement, at law and in equity.

7. Making purchases

If you wish to license Software or obtain the services described on the Site, you will be asked by Company or the third party provider of the product or service to supply certain information applicable to your purchase, including, without limitation, credit card and other information.  You understand that Company will treat any such information in the manner described in our Privacy Policy, which can be found at http://ephox.com/legal/privacy. You agree that all information that you provide to Company or such third party provider will be accurate, current and complete.  You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred.  You will also be responsible for paying any applicable taxes relating to your purchases.

8. Information Provided by Company

Although Company strives to provide Materials that are both useful and accurate, laws, regulations, data and other information change frequently and are subject to varying interpretations.  In addition, the facts and circumstances of every situation differ.  Accordingly, although Company endeavors to use reasonable care in assembling the Materials, the Materials may not be up-to-date, accurate or complete.  Please contact Company at legal@ephox.com to determine whether you have the most recent version of the Materials made generally available by Company. 

In addition, portions of the Content have been contributed to the Site by various vendors, suppliers, specialists and service providers.  The inclusion of such information does not indicate any approval or endorsement of such providers, and Company expressly disclaims any liability with respect to the foregoing. 

9. Links

The Site contains links to other Internet web sites, including affiliated web sites which may or may not be owned or operated by Company.  Company has not reviewed all of the web sites that are linked to the Site, and Company has no control over such sites and is not responsible for the content provided on linked sites.  You acknowledge and agree that Company is not responsible for or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites, any updates or changes to such sites, or the privacy or other practices of such sites, and the fact that Company offers such links does not indicate any approval or endorsement of any material contained on any linked site. Company is providing these links to you only as a convenience and as a result, you access them at your own risk.  Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any linked site, all of which have separate privacy and data collection practices, independent of Company.  Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Site or other sites) is free of such items as viruses, worms, trojan horses, defects, date bombs, time bombs and other items of a destructive nature.

10. Ownership and Restrictions on Use

The Site is owned and operated by Company and the Content (and any intellectual property and other rights relating therein and thereto) are and will remain the property of Company and its licensors and suppliers.  The Site and Content and the selection, compilation, collection, arrangement and assembly thereof are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable.  You may not copy, reproduce, republish, upload, post, transmit or distribute Content or information available on or through the Site in any way without our prior written permission.  The Content may be used solely to the extent necessary for your authorized use of the Site, as provided in this Agreement or as expressly authorized in writing by Company or, if so indicated in writing by Company, its licensors or suppliers.  Modification of the Content or use of the Content for any other purpose is a violation of our copyright and other proprietary rights, and is strictly prohibited.  You acknowledge that you do not acquire any ownership rights by using the Site or the Content. 

The trademarks, trade names, logos, and service marks displayed on the Site (collectively the “Trademarks”) are the registered and unregistered trademarks of Company, Company’s licensors and suppliers, and others.  The Trademarks owned by Company, whether registered or unregistered, may not be used for any purpose including, but not limited to use as metatags on other pages or sites on the Internet without the written permission of Company or such third party which may own the Marks or in connection with any product or service that is not Company’s, in any manner that is likely to cause confusion with customers, or in any manner that disparages Company.  Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Company, Company’s licensors or suppliers, or the third party owner of any such Trademark.  Use of any Trademarks is prohibited, and Company will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.

11. Claims of Copyright Infringement

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.  If you believe in good faith that materials hosted by Company infringe your copyright (for example, materials posted by Company on one of our Forums), you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked.  The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Company to locate the material on the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.  If you believe in good faith that a notice of copyright infringement has been wrongly filed by Company against you, the DMCA permits you to send Company a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details.  Notices and counter-notices with respect to the Site should be sent to William Roberts, Ephox Corporation, 135 University Avenue, Floor 2, Palo Alto, CA 94301-1629, USA..  We suggest that you consult your legal advisor before filing a notice or counter-notice.  Also, be aware that there can be penalties for false claims under the DMCA.

12. Jurisdictional Issues

The Site is solely directed to individuals residing in the United States.  We make no representation that Materials available on or through the Site are appropriate or available for use in other locations.  Those who choose to access the Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.  The Software is further subject to United States export controls.  No Software may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  By downloading or using any Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

We reserve the right to limit the availability of the Site and/or the provision of any service, program, film or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such service, program, film or other product that we provide.

13. Termination

This Agreement shall remain effective until terminated in accordance with its terms.  Company may, in its sole discretion, terminate or suspend your access to or use of the Content and Site, and may deactivate or delete your account, for any reason or no reason, and without prior notice, including, without limitation, if we suspect that you may have breached any of the terms of this Agreement. Upon such termination by Company, your right to use the Site, Forum, and Materials shall immediately cease, and you shall destroy all Materials obtained from the Site and all copies thereof, whether made under the terms of this Agreement or otherwise.  You may terminate your use of, and participation in, the Site, Materials, and Forums at any time.

14. Disclaimers

THE SITE, CONTENT, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, SECURITY, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 

COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE OR THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, THE SERVER(S) ON WHICH THE SITE IS HOSTED OR SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO.  YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SOFTWARE AND YOUR RELIANCE THEREON.  NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE SITE, IN THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY.  YOUR USE OF THE SITE AND ANY CONTENT PROVIDED THROUGH THE SITE ARE ENTIRELY AT YOUR OWN RISK.

OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL COMPANY BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR OR ANY USER’S  RELIANCE ON INFORMATION, CONTENT, SUBMISSIONS, OPINION, ADVICE OR STATEMENTS OBTAINED THROUGH THE SITE OR A LINKED SITE, OR YOURS OR ANY USER'S RELIANCE ON ANY INFORMATION, PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE.

15. Limitation of Liability

NEITHER COMPANY NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, PROFITS, DATA OR OTHER INTANGIBLE LOSSES), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE AND/OR CONTENT CONTAINED ON THE SITE, ANY LINKED SITE OR ANY CONTENT OR SERVICE PURCHASED OR PROVIDED THROUGH THE SITE.  YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, CONTENT, SERVICES, OR ANY LINKED SITE IS TO STOP USING THE SITE, SERVICES, AND CONTENT ON THE SITE OR LINKED SITE, AS APPLICABLE.  THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE.  Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

16. Indemnification

You agree to indemnify, defend and hold Company, our affiliates, licensors, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, including any violation of the Code of Conduct, above; (b) any allegation that any Submissions or other materials you submit to us or transmit to the Site infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (c) your activities in connection with the Site; and/or (d) your violation of any applicable law of any jurisdiction or any third party rights.

17. Electronic Notice

When you use the Site or send emails to Company you are communicating with or receiving communication from Company electronically. You consent to receiving communications from Company electronically, including without limitation, receiving email communications from Company via email or Company may post notices on the Site. You expressly agree that all agreements, notices, disclosures and other communications that Company provide to you electronically will satisfy any legal requirement that such communications be in writing.

18. Questions

If you have any questions, comments or complaints regarding this Agreement or the Site, feel free to contact us at 135 University Ave, Floor 2, Palo Alto, CA 94301-1629, United States or legal@ephox.com.  

19. Notice Required by California Law

Pursuant to California Civil Code Section 1789.3, users are entitled to the following specific consumer rights notice:

The name, address and telephone number of the provider of this Site is Ephox Corporation at 135 University Ave, Floor 2, Palo Alto, CA 94301-1629, United States. Telephone: +1 (650) 292-9659.  Complaints regarding the Site or Content or requests to receive further information regarding use of this Site or Content may be sent to the above address or to legal@ephox.com.  

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.

20. Applicable Laws

This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law.  You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to this Agreement, Site, Content, and services therein (including but not limited to the purchase of Company products) shall be in the state or federal courts located in the City and County of San Francisco, California. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Company’s services and products, Content, Site or this Agreement must be filed within one (1) years after such claim or cause of action arose or be forever barred.  You agree to and by using the Site waive any right to a trial by jury.

21. Arbitration

By using this Site, you agree that any dispute, controversy, or claim arising out of, related to or in connection with this Agreement, or to the breach, performance, non-performance, termination or invalidity thereof, shall be finally settled and determined by arbitration administered by the American Arbitration Association (the “Association”) under its then current Arbitration Rules. The written award of the arbitrator shall be final and binding upon the parties, and judgment on or enforcement of the award so rendered may be sought, had or entered in any court having jurisdiction. The Association shall appoint the sole arbitrator following consultation with the parties. The arbitrator so appointed shall be independent of the parties and shall have an international reputation as being experienced in the legal and technical matters related to the dispute. The seat of arbitration shall be San Francisco, California; provided, however, that the arbitrator may hold hearings at such other locations as the arbitrator shall determine, after consultation with the parties. The arbitral proceedings and all pleadings and written evidence shall be in the English language.  Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof. The arbitrator is precluded from awarding punitive or exemplary damages.  In no event shall the arbitrator have the powers of an amiable compositeur. Nothing in this Agreement prohibits any party from seeking interim or conservatory relief in any court of competent jurisdiction; provided, however that neither the filing of an application for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, nor the granting of such relief, shall be deemed to be a waiver of the obligation of the party to have the dispute heard and determined solely and exclusively by arbitration. The rights and obligations of the parties as described herein shall survive the termination, expiration, non renewal, or rescission of this Agreement.

22. Miscellaneous

If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. If this Agreement conflicts with any other documents, the terms of this Agreement will control for the purposes of usage of the Site. This Agreement is not assignable, transferable or sublicenseable by you except with Company’s prior written consent.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.  Notwithstanding anything to the contrary in this Agreement, any provision of this Agreement that imposes or contemplates continuing obligations on a party after expiration or termination of this Agreement will survive such expiration or termination. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

Updated: 16 June 2011

Ephox Corporation

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