Podmailer software and podmailing.com service Beta-Test License Agreement 10-2006
This Beta-Test License Agreement ("AGREEMENT") is a legal and binding contract between ZSLIDE S.A.S., a French company having its registered office at 111 rue Marceau, 93100 Montreuil-sous-Bois, France, ("ZSLIDE") and you, ("TESTER"), governing your access to and use of the Podmailer software and podmailing.com online service ("SOFTWARE").
PLEASE READ THIS AGREEMENT CAREFULLY.
By clicking on the "I agree" button below, by accessing and using the server and by installing and using the software you certify that you have read, understood and accepted the terms, conditions and limitations of this agreement.
IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO USE THE SOFTWARE, AND YOU MUST PROMPTLY (A) CLICK ON THE "I don't agree" BUTTON BELOW, AND (B) UNINSTALL AND DELETE THE SOFTWARE FROM ANY AND ALL OF YOUR COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION AND ALL ACCOMPANYING MATERIALS, INCLUDING PACKAGING AND DOCUMENTATION, AND (C) CEASE ALL OF YOUR USE OF THE SERVER.
1. Definitions
"Documentation" means the user manuals, training materials, and operating materials relating to the SOFTWARE, if any, ZSLIDE provides to TESTER under this AGREEMENT.
"Intellectual Property Rights" means any trade secrets, patents, copyrights, trademarks, know-how, moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications and registrations relating to any of the foregoing.
"TESTER Hardware" means all computers, portable devices, consoles, set-top-boxes owned or controlled by TESTER.
"TESTER Network" means TESTER's internal or externally hosted computer network, which comprises TESTER Hardware.
2. Beta stage
TESTER expressly recognizes that the SOFTWARE is currently under development in "beta stage" (as that term is used in the software industry) and still contains many "bugs" (as that term is used in the software industry) and that it may not function as intended and should be used with utmost care.
TESTER expressly agrees to receive e-Mail messages from ZSLIDE relating to the beta-testing process, and commits to upgrading the SOFTWARE when requested by ZSLIDE or otherwise to stop using the software.
TESTER should not use the software if TESTER is not sufficiently proficient with computers to fully understand the implications of using "beta stage" software (as that term is used in the software industry).
TESTER expressly commits to using the SOFTWARE at his own risk, and under the conditions and restrictions set forth in this AGREEMENT.
3. License Grant
3.1 License Grant: ZSLIDE hereby grants to TESTER, subject to the terms and conditions of this AGREEMENT a free, non-exclusive, temporary, nontransferable license, without rights to sub-license, to: (i) install the SOFTWARE on TESTER Hardware; (ii) allow TESTER to use the Documentation and SOFTWARE on TESTER Hardware or through the TESTER Network solely as a pilot of the podmailing.com service to collect user feedback, and to raise technical issues, and for no other purpose, including but not limited to use of the SOFTWARE to provide goods or services to end-users or the distribution of the SOFTWARE to end-users or other third parties; and (iii) reproduce the SOFTWARE and Documentation solely as necessary to support the permitted use by TESTER of the SOFTWARE.
3.2 Restrictions: TESTER acknowledges that the SOFTWARE contains ZSLIDE trade secrets and accordingly TESTER agrees, to the extent permitted by applicable law, that TESTER shall not cause or permit reverse engineering, disassembly, de-compilation, or make any attempt to discover the source code of the SOFTWARE. TESTER will not alter or impair any acknowledgment of copyright or other intellectual property rights of ZSLIDE or any other right owner that may appear in the SOFTWARE and Documentation. TESTER shall not (i) further distribute, assign or resell the SOFTWARE, (ii) rent, lease or loan the SOFTWARE, (iii) use the SOFTWARE for profit, (iv) use the SOFTWARE for any unlawful purpose or (v) use the SOFTWARE to infringe on the copyright laws of your country of residence or (vi) use the software other than for testing and evaluation purposes.
3.3 Permission: TESTER hereby acknowledges that SOFTWARE will use TESTER Hardware and TESTER Network in order to perform file transfers between TESTER and other users of SOFTWARE. TESTER agrees to commit part of his upload bandwidth to participate in the delivery of files when he is the sender of the files and also when he is only a recipient of the files, and without counterpart. TESTER grants permission to SOFTWARE to use this upload bandwidth for file transfers automatically when TESTER is a sender or recipient of the files, within the limits that TESTER can configure in the SOFTWARE settings.
3.4 Recorded statistics: TESTER hereby acknowledges that in the course of natural usage, SOFTWARE will record on the client side and on the server side some usage statistics and performance measurements for the purpose of monitoring the service in quantitative and qualitative terms. These recorded statistics are similar to traditional logging as performed by web servers, e-mail servers, and streaming media players. They do not include any private information such as the contents or the identity of the sender or the recipients of the files or messages sent or received by TESTER using the SOFTWARE. TESTER grants permission to SOFTWARE to log this usage including the IP address of the computer issueing the Internet connections and record data referring to file size, send date, number of recipients, maximal and average upload and download throughput, date of start and end of transfers, durations to start and finish transfers, protocol and software version numbers. The data will be kept for a maximum duration of 6 months.
4. Ownership
ZSLIDE retains all right, title, and interest under its Intellectual Property Rights to the SOFTWARE and the Documentation. Except for the license expressly granted in Section 2, TESTER obtains no rights in the SOFTWARE or Documentation. TESTER acknowledges that the SOFTWARE and Documentation are being licensed and not sold under this AGREEMENT, and that this AGREEMENT does not transfer title in the SOFTWARE or Documentation, or any copy thereof, to TESTER. Without limiting the foregoing, TESTER may not sub-license or otherwise distribute or disclose the SOFTWARE or any portion thereof to any third party, or permit any third party to use the SOFTWARE.
5. Support
ZSLIDE shall have no obligation under this AGREEMENT to provide support for TESTER's use of the SOFTWARE.
6. Disclaimer of Warranty and Limitation of Liability
THE SOFTWARE AND DOCUMENTATION ARE BEING PROVIDED BY ZSLIDE TO TESTER ON AN "AS IS, WITH ALL FAULTS" BASIS. ZSLIDE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
IN NO EVENT SHALL ZSLIDE BE LIABLE TO TESTER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS' OR EXPERTS' FEES), INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR DOCUMENTATION UNDER THIS AGREEMENT OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR DOCUMENTATION, WHETHER OR NOT ZSLIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
7. Term and Termination
The term of this AGREEMENT will begin on the Effective Date for a duration of 1 month (one month), unless in either case this AGREEMENT is earlier terminated pursuant to this Section 6. Either party may terminate this AGREEMENT at any time and for any reason at its sole discretion upon written notice to the other party. Upon termination of this AGREEMENT, TESTER shall immediately return to ZSLIDE, or certify the destruction of, all copies of the SOFTWARE and Documentation in TESTER's possession or under its control. The rights and obligations contained in Sections 2.2, 3, 5, 7 and 8 shall survive any termination of this AGREEMENT.
8. Assignment
This AGREEMENT shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and permitted assigns. ZSLIDE will have the right to assign this AGREEMENT with prior written notice to TESTER. The TESTER may not assign or transfer any of its rights or delegate any of its obligations hereunder without the prior written consent of ZSLIDE.
9. Governing Law
THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF FRANCE. THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF, AND AGREE THAT ANY LEGAL PROCEEDING WITH RESPECT TO OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT IN THE COMMERCIAL COURT OF PARIS, FRANCE.
10. General
This AGREEMENT embraces the full, complete understanding of the parties as to the subject matter hereof. All prior representations, understandings and agreements regarding the subject matter hereof whether written or oral, expressed or implied, are superseded and shall be of no effect. In the event of conflicting provisions between this AGREEMENT and a duly executed collateral agreement, the duly executed collateral agreement shall control.
11. Modifications
ZSLIDE RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT AT ANY TIME. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THESE TERMS AND CONDITIONS, AND WE STRONGLY URGE YOU TO DO SO. CONTINUED USE OF THE SOFTWARE AFTER ANY CHANGES TO THIS AGREEMENT SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES. ZSLIDE DOES NOT AND WILL NOT ASSUME ANY OBLIGATION TO NOTIFY YOU OF ANY CHANGES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Usage conditions
Podmailer and the podmailing.com service enable sending and receiving very large attachments with your standard e-mail. They provide a private communications service, and are not intended to make files available to the public.
File transfers are performed thanks to the HTTP protocol and the BitTorrent protocol and source code by Bram Cohen and others from BitTorrent Inc. Podmailer also supports opening .torrent files to start BitTorrent-compatible downloads.
General usage conditions
Peer-to-Peer technologies such as BitTorrent can be very beneficial by following a few rules pertaining to the legitimate exchange of data on the Internet. zSlide strongly urges its users to refrain from any reprehensible use of Peer-To-Peer in general and of Podmailer and podmailing.com in particular.
* You must not use Podmailer and the podmailing.com service for illegal activities.
* You must not use Podmailer and the podmailing.com service for spamming or any other invasion of privacy.
* Making copyrighted material available to the public is probably illegal in your country: so do not perform illegal file sharing with Podmailer and the podmailing.com service.
* If it is illegal in your country to send or receive certain files to and from people by e-mail, or to download and upload certain files using swarming Peer-to-Peer protocols such as BitTorrent, then do not use Podmailer and the podmailing.com service to handle these files.
* Take notice that an unlawful usage of Podmailer and the podmailing.com service is a case of termination of your Podmailer Beta-Test License Agreement.
* If you discover a file being made available to the public illegaly using Podmailer or the podmailing.com service, it will be removed upon notice to abuse@podmailing.com.
* In any case you are solely responsible for communicating data using Podmailer and the podmailing.com service.
Express Podmail conditions
Sending an Express Podmail implies that your Attachments will be hosted on your behalf by the podmailing.com service for a certain amount of time. Therefore restrictive conditions apply to the use of Express Podmails.
In order to use the Express feature, you must represent and warrant that:
* Your Express Podmail Attachments do not infringe or violate any rights of any other person or entity;
* Your Express Podmail Attachments are not obscene, libelous, defamatory or otherwise malicious or harmful to any person or entity;
* You will not use Podmailer or the podmailing.com service as an instrument to spamming or other impermissible advertising or marketing activities;
* You will not use Podmailer or the podmailing.com service in any way that is otherwise illegal or promotes illegal activities, including without limitation in any manner that might be discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
Disclaimer
zSlide prohibits any user of Podmailer and the podmailing.com service from breaching any of the foregoing usage conditions.
zSlide considers privacy to be of utmost importance and will perform reasonable control of user activity only to ensure proper respect for privacy.
zSlide will never inspect the content of private podmails and their attachments which represent a private communication.
zSlide will consider all declarations from individuals and companies claiming to suffer from illegal activities performed using Podmailer or the podmailing.com service and zSlide will provide assistance to solve these legal issues within the framework of applicable Law.
