Zaxwerks Inc. End-User Software License and Warranty Agreement

Notice to User:  THIS IS A CONTRACT. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING THIS SOFTWARE.  THIS AGREEMENT LICENSES THE ENCLOSED SOFTWARE TO YOU, THE END USER, AND CONTAINS WARRANTY AND LIABILITY DISCLAIMERS.  BY USING THIS SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE LICENSE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT WISH TO DO SO, DO NOT INSTALL OR USE THIS SOFTWARE, PROMPTLY RETURN THE ENTIRE PACKAGE, TO THE PLACE WHERE YOU OBTAINED IT, FOR A FULL REFUND.

1. Definitions

a) The "Zaxwerks Software" means the software program included in the enclosed package, and all related updates supplied by Zaxwerks Inc.

b) The "Zaxwerks Product" means the Zaxwerks Software and the related documentation, models, project files, videotapes, animations and any other support files and updates supplied by Zaxwerks Inc.

2. License.  This Agreement allows you to:

a) Use the Zaxwerks Software on a single computer at a time.

b) Make one copy of the Zaxwerks Software solely for backup purposes.  You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Zaxwerks Software.

3. Restrictions

You may not make or distribute copies of the Zaxwerks Product, or electronically transfer the Zaxwerks Software from one computer to another or over a network.  You may not decompile, reverse engineer, disassemble, or otherwise reduce the Zaxwerks Software to human-perceivable form.  You may not modify, rent, resell for profit, distribute or create derivative works based upon the Zaxwerks Software or any part thereof.  You may not export or reexport, directly or indirectly, the Zaxwerks Product into any country prohibited by the United States Export Administration Act and the regulations thereunder.

4. Ownership

The foregoing license gives you limited right to use the Zaxwerks Software.  Although you own the disk on which the Zaxwerks Software is recorded, you do not become the owner of the software, and Zaxwerks Inc. retains title to, the Zaxwerks Product, and all copies thereof.  All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by Zaxwerks Inc. and its affiliates.


5. Limited Warranties

a) Zaxwerks Inc. warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, the Zaxwerks Software will perform in substantial conformance with the documentation supplied as part of the Zaxwerks Product;  and (ii) that the media on which the Zaxwerks Software is furnished will be free from defects in materials and workmanship under normal use.  Zaxwerks Inc. does not warrant, however, that your use of the Software will be uninterupted or that the operation of the Software will be error-free.  EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, ZAXWERKS INC. DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  IF APPLICABLE LAW IMPLIES ANY WARRANTIES WITH RESPECT TO THE ZAXWERKS PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.  No oral or written information or advice given by Zaxwerks Inc., its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of this warranty.

b) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE.

6. Exclusive Remedy

Your exclusive remedy under Section 5 is to return the Zaxwerks Software to the place you acquired it, with a copy of your receipt and a description of the problem.  Zaxwerks Inc. will use reasonable commercial efforts to supply you with a replacement copy of the Zaxwerks Software that substantially conforms to the documentation, provide a replacement for the defective media, or refund to you your purchase price for the Zaxwerks Software, at its option.  Zaxwerks Inc. shall have no responsibility with respect to Zaxwerks Software that has been altered in any way, if the media has been damaged by accident, abuse or misapplication, or if the nonconformance arises out of use of the Zaxwerks Software in conjunction with software not supplied by Zaxwerks Inc..

7. Limitations of Damages

a) ZAXWERKS INC. SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ZAXWERKS INC. OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

b) Zaxwerks Inc.'s total liability to you for actual damages for any cause whatsoever will be limited to the greater of $500 or the amount paid by you for the Zaxwerks Software that caused such damages.

c) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

8. Basis of Bargain

The limited warranty, exclusive remedies and limited liability set forth above are fundamental elements of the basis of the bargain between Zaxwerks Inc. and you.  Zaxwerks Inc. would not be able to provide the Zaxwerks Software on an economic basis without such limitations.

9. Government End Users

The Zaxwerks Product is "Restricted Computer Software."

RESTRICTED RIGHTS LEGEND
Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013.  For civilian agencies: Restricted Rights Legend Use, reproduction of disclosure is subject to restrictions set forth in subparagraph (a) through (d) of the Computer Software Restricted Rights clause at 52.227-19 and the limitations set for in the Zaxwerks Inc.'s standard commercial agreement for this software.  Unpublished rights reserved under the copyright laws of the United States.

10. General

This Agreement shall be governed by the internal laws of the State of California.  This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.
