THIS TRIAL END USER LICENSE AGREEMENT ("AGREEMENT"), ALONG WITH E-QUILL'S TERMS OF USE LOCATED AT http://www.equill.com/product/terms.html AND E-QUILL'S PRIVACY POLICY http://www.equill.com/privacy.html COLLECTIVELY GOVERN YOUR USE OF THE SOFTWARE PROVIDED BY E-QUILL CORPORATION ("E-QUILL") AND YOUR USE OF THE SERVICES ("E-QUILL SERVICES") AVAILABLE THROUGH THIS E-QUILL WEB SITE (THE "SITE") BY USING THE SOFTWARE. BY CLICKING THE BUTTON BELOW MARKED "I ACCEPT THE END USER LICENSE AGREEMENT", YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE BUTTON MARKED "I ACCEPT THE END USER LICENSE AGREEMENT", AND YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SOFTWARE. For purposes of this Agreement, "you" and "your" refer to the user or subscriber and "we", "us" and "our" refer to E-Quill.
A. Software License
Upon your acceptance of this Agreement, E-Quill grants you a limited, non-exclusive, non-transferable, revocable right and license to download and use the Software solely in order for you to use the E-Quill Services during the Trial Period (as defined in paragraph D below), subject to the terms and conditions of this Agreement. In accepting this license, you agree not to copy, modify, or transfer the Software, or any copy thereof, in whole or in part, except as expressly permitted by this Agreement. You may not reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code of the Software, or permit any other person to do any of the foregoing. You may not rent, lease, loan, resell, distribute or transfer the Software or any part thereof. You may not modify, enhance, extend or create derivative works based in whole or in part on the Software.
B. Registration
In order to use any of the E-Quill Services, you first must subscribe to the E-Quill Services by completing E-Quill's registration process (in addition to installing the Software as authorized by this Agreement). As part of the registration process, you agree to: (i) provide current, complete and accurate information about yourself including your business email address and employer, and (ii) maintain and update this information with E-Quill so that E-Quill has current, complete and accurate information about you. If you do not have a business email address, then you may provide your own personal email address; however, in that case, you are permitted to use the Software and the E-Quill Services only in connection with your own personal uses, and not for any business or commercial purposes. The information requested at the initial registration process is your "Profile Data." You may change your Profile Data at any time by emailing your new information to accounts@e-quill.com. You are responsible for all of the activities that take place under your account and password and agree to immediately notify us of any unauthorized access or use. E-Quill reserves the right to refuse to provide the Software or E-Quill Services to any user.
C. Certain Restrictions
The E-Quill Services may not be used by any child under the age of 13. If you are under 13 years old, you are not authorized to use the Software or the E-Quill Services. However, you may develop materials using the Software or the E-Quill Services for children, so long as such use is otherwise in compliance with this Agreement and E-Quill's Term of Use. In addition, while you may use for commercial purposes the E-Quill Services (subject to the limitations of this Agreement, including in particular paragraph D below), your right to use the E-Quill Services is personal to you, which means that you cannot sell, assign, transfer, or sublicense your right to use the E-Quill Services to a third party.
D. Trial Period; Scope of Use
This Agreement authorizes your use of the Software and the E-Quill Services for non-personal purposes only for the Trial Period. The Trial Period means the period of time beginning with the date on which you complete the registration process for the E-Quill Services ("Beginning Date") and ending upon the earlier of (a) sixty days after the Beginning Date, or (b) the date on which the number of E-Quill accounts created by users of the same company or other entity for which you are using the Software or E-Quill Services equals or exceeds five. The Trial Period is intended to provide users with an opportunity to use the E-Quill Services at no charge to determine whether or not to purchase an ongoing license or ongoing services from E-Quill for non-personal purposes. Accordingly, at the end of the Trial Period, if you wish to continue to use the E-Quill Services or the Software in any way for any purpose other than solely for personal purposes, you must enter into an appropriate agreement with E-Quill and pay the applicable fees for your continued use. "Personal purposes" means only for your own personal, family or household purposes that is not on behalf of an employer or in any event in promoting, selling or distributing, directly or indirectly, any goods or services in any way. You may request to enter into an ongoing agreement with E-Quill by going to www.e-quill.com/sales or such other location as designated by E-Quill, and completing the sales information form. Otherwise, this Agreement expires at the end of the Trial Period, and E-Quill reserves the right to terminate your use of the Software and the E-Quill Services with or without notice to you after the Trial Period. If your use of the E-Quill Services is solely for your own personal purposes, you may continue to use the Software and the E-Quill Services after the Trial Period in accordance with the terms of this Agreement. However, E-Quill reserves the right to verify that your use complies with this provision and this Agreement, and, if E-Quill determines that it does not, E-Quill may terminate this Agreement, your license to the Software and your access to the E-Quill Services. In addition, E-Quill reserves the right at any time to impose fees and other charges for the E-Quill Services upon at least 30 days prior notice to you. If you do not pay these fees or charges, then E-Quill may terminate this Agreement and your right to use the Software and the E-Quill Services.
E. Termination
At any time, E-Quill may immediately terminate this Agreement, and your right to use the Software and the E-Quill Services, if (i) you breach this Agreement or any of the Terms of Use; or (ii) E-Quill is unable to verify or authenticate your Profile Data, or E-Quill determines that any of the Profile Data is inaccurate. E-Quill will attempt to notify you of such termination. E-Quill will not be liable to you or to any third party for termination of this Agreement or your right to use the Software or the E-Quill Services. If you decide to terminate this Agreement, or if you object to any term or condition of this Agreement or any subsequent modification to it, or if you become dissatisfied with the E-Quill Services in any way, your sole recourse is to immediately: (a) discontinue use of the E-Quill Services; and (b) discontinue use of the Software and delete all copies of the Software from your hard drive, server or other storage medium. Upon termination of this Agreement, your right to use the Software and the E-Quill Services immediately ceases.
F. Security and Privacy
While we have made considerable efforts to make your information secure so that it can only be viewed by those who are intended to view it, you acknowledge that (i) all pages, documents, copies and materials of any kind with which you use any of the E-Quill Services ("Services Data") will automatically reside on an E-Quill server that is accessible through the Internet; and (ii) due to the nature of the Internet, such Services Data is potentially accessible to anyone who knows the applicable URL. E-QUILL THEREFORE CAUTIONS YOU AGAINST USING THE E-QUILL SERVICES UNDER THIS TRIAL AGREEMENT TO TRANSMIT OR STORE CONFIDENTIAL OR HIGHLY SENSITIVE INFORMATION OR INFORMATION THAT IS OTHERWISE AVAILABLE ONLY IN A SECURED INTERNET OR INTRANET SITE, AND YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST E-QUILL WITH RESPECT TO THE SECURITY, PRIVACY, OR CONFIDENTIALITY OF ANY SUCH MATERIAL OR YOUR TRANSMISSIONS MADE THROUGH THE E-QUILL SERVICES OR THE SITE. For more information regarding these issue, please view E-Quill's current Terms of Use at http://www.equill.com/tou. If you wish to obtain a more secure solution, you must enter into a corporate license or other agreement with E-Quill and you must pay the applicable fees and charges for such support and services. If you are interested in such an arrangement, please go to http://www.equill.com/sales, complete the form, and someone from E-Quill's sales team will contact you about E-Quill's corporate solutions. In addition, only you and anyone who knows the unique URL of your User Data may view that Data on the E-Quill system, and in general, we will not view or access the User Data. However, as system operators, we must reserve the right to review or monitor outgoing and incoming communications made through the E-Quill Services or the Site from time to time. For more information about our privacy policy, please view E-Quill's current Privacy Policy at http://www.equill.com/privacypolicy.
G. System Rules
You are responsible for any and all Services Data (other than data provided by E-Quill) that you obtain from third parties or otherwise make available to others through the E-Quill Services or that you store on or through the Site (collectively, "Hosted Data"). In particular, you are solely responsible for determining whether or not you have the right to use and make available any Hosted Data and other information and materials in connection with the E-Quill Services and for any claims of copyright infringement or other proprietary rights violations as a result of your use of these Hosted Data and other information and materials. E-Quill's Terms of Use contains more specific provisions regarding the type of materials that are not permitted to be used in connection with the E-Quill Services, and you agree to strictly comply with such provisions. E-Quill has the right to take all reasonable actions to remove or restrict access to any materials that do not comply with the requirements of this Agreement or the Terms of Use, including restriction, suspension or termination of your access and/or the deletion of the objectionable material from the E-Quill system. You agree not to make any claim or otherwise hold E-Quill liable for any action taken to remove or restrict access to such material posted on or through the E-Quill Site or the E-Quill Services in violation of this Agreement or the Terms of Use, or any law, rule or regulation. In addition, E-Quill reserves the right to limit the amount of storage and other aspects of the E-Quill Services available to each user. For more information, please view the Terms of Use http://www.equill.com/tou. E-Quill disclaims all liability for deletion or loss of data or other materials maintained or transmitted through the E-Quill Services or the Site.
H. No Support Obligations
E-Quill does not provide any support or professional services to users under this Agreement. If you wish to obtain support or professional services from E-Quill, you must enter into a corporate license or other agreement with E-Quill and you must pay the applicable fees and charges for such support and services. If you are interested in such an arrangement, please go to http://www.equill.com/sales, complete the form, and someone from E-Quill's sales team will contact you about E-Quill's corporate solutions.
I. Ownership
You have no ownership rights in the Software, the E-Quill Services or the Site. Rather, you have a limited license to use the Software and a limited right to use the E-Quill Services and the Site as long as this Agreement remains in full force and effect. Ownership of all portions of the Software, E-Quill Services, and the Site, and all data and other materials provided by E-Quill, and all intellectual property rights in each of the foregoing, including, without limitation the "look and feel" of the Site, shall remain at all times with E-Quill and/or its affiliates, licensors and suppliers.
As between you and E-Quill, you own the Hosted Data, but once you submit the Hosted Data to E-Quill, E-Quill has a right to store, access and disclose the Hosted Data as necessary to provide the E-Quill Services, to operate and maintain the E-Quill Site, to comply with applicable laws and government orders and requests, and to protect itself against claims or actions brought by you or any third party. You agree that, upon termination of this Agreement or otherwise, E-Quill has no obligation to provide or make available to you the Hosted Data or any other Services Data unless an authorized representative of E-Quill otherwise expressly agrees in writing and subject to your payment of applicable fees to E-Quill.
J. Links to Other Web Sites
Links in the E-Quill Services or on the Site may permit you to leave the E-Quill Site and to go to other web sites. These linked sites are not under the control of E-Quill, and E-Quill is not responsible for the content of any of them or any other site to which they may be linked. You agree that E-Quill does not endorse and is not liable for any content, advertising, product or other material on or acquired through any other site. Such sites may be subject to the policies and procedures of their respective owners. E-Quill is not responsible and has no liability for any transmission received from any linked site. E-Quill provides these links to you solely as a convenience to you, and you use them at your own risk.
K. Indemnification
You hereby agree to defend, indemnify and hold harmless E-Quill Corporation and its affiliates, and its and their licensors, suppliers and agents (collectively the "E-Quill Indemnitees"), from and against any and all losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys fees) incurred by or awarded against any E-Quill Indemnitee arising out of or relating to (1) any third-party claim, action or allegation of infringement of any intellectual property or other proprietary right by the Hosted Data or any other material or information that you provide or that you transmit or upload through or in connection with the E-Quill Services, (2) any breach or alleged breach by you of this Agreement or the Terms of Use, including breach of any of your obligations or covenants, or (3) any third-party claim, action or allegation based on your use of the Software, the Site or the E-Quill Services. E-Quill reserves the right to assume the exclusive defense and control of any claim for which you are required to indemnify E-Quill Indemnitees, and you agree to fully cooperate as reasonably required by E-Quill in the defense and/or settlement of any claim. You shall not in any event settle any claim for which you are required to indemnify E-Quill as provided in this paragraph without the prior written consent of E-Quill.
L. Warranty Disclaimer
THE SOFTWARE, THE SITE AND THE E-QUILL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND NEITHER E-QUILL, NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS, MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, THE SITE OR THE E-QUILL SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, E-QUILL DOES NOT WARRANT THAT THE SOFTWARE, THE SITE OR THE E-QUILL SERVICES WILL OPERATE UNINTERRUPTED, WILL BE ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER DISRUPTIVE COMPONENTS. YOUR USE OF THE SOFTWARE, THE SITE AND THE E-QUILL SERVICES IS ENTIRELY AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND THEREFORE, SOME OF THE ABOVE LIMITATIONS OF THIS PARAGRAPH MAY NOT APPLY TO YOU.
M. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL E-QUILL, ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, THE SITE OR THE E-QUILL SERVICES OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, THE TERMS OF USE, OR THE PRIVACY POLICY, EVEN IF E-QUILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, the total liability of E-Quill under this Agreement, regardless of the type of claim, shall not exceed $100. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, and therefore, some of the above limitations of this paragraph may not apply to you.
N. Modifications
E-Quill may amend this Agreement at any time by (i) posting a revised Agreement on the Site, and/or (ii) sending information regarding the modification of the Agreement to the email address you provide to E-Quill. You are responsible for regularly reviewing the E-Quill Site for notice of such changes. If you continue to use the Software, the E-Quill Services or the Site after notice of changes to the Agreement has been provided, your use will be subject to such modified terms. Further, E-Quill reserves the right, at any time and for any reason, and without liability to you or any third party, to limit, deny, modify or discontinue the Software, E-Quill Services and/or the Site with or without notice to you.
O. Entire Agreement; Use by Employees of Corporate Licensee
This Agreement, along with the Terms of Use and Privacy Policy, constitute the entire agreement between you and E-Quill with respect to its subject matter and supersedes any and all prior or contemporaneous oral or written agreements. However, if your employer has previously entered into a written, ongoing agreement with E-Quill, then your use of the Software and the E-Quill Services under this Agreement is limited to your own personal purposes only; any use of the Software or the E-Quill Services in the scope of your employment or otherwise on behalf of your employer must be pursuant to the ongoing agreement in accordance with its terms. You are responsible for determining whether you are authorized to use the E-Quill Services or the Software under that agreement.
P. General Information
The failure of E-Quill to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. This Agreement is governed by the laws of the State of California, USA, and will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor, to the extent legally permissible, to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement shall in any event remain in full force and effect. You may not assign this Agreement to any person and any attempt to do so is void. You agree that regardless of any statute or law to the contrary, any claim or cause of action you bring arising out of or related to use of the Software, the E-Quill Services or the Site or otherwise relating to this Agreement, the Terms of Use or the Privacy Policy must be filed within one year after such claim or cause of action arose or be forever barred.
