NetDIVE Terms of Use & License Agreement (Services and Software)

Please read the following License Agreement that accompanies your purchase of NetDIVE software products. If you agree with the terms of the Agreement click “I Agree”. You may then proceed with your purchase of the Small Business Software License.

THE SERVICES AND ASSOCIATED SOFTWARE CONTAIN PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THE TERMS AND CONDITIONS OF NetDIVE's TERMS OF USE AND LICENSE AGREEMENT. TO PROCEED WITH THE INSTALLATION AND/OR USE OF THE SERVICES AND/OR SOFTWARE YOU MUST INDICATE YOUR ASSENT BY CLICKING ON “I AGREE”. IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MAY NOT PROCEED WITH YOUR PURCHASE. NETDIVE RESERVES THE RIGHT TO MODIFY ITS TERMS AND PRICING POLICIES AT ANYTIME.

SOFTWARE LICENSE OWNERSHIP
The Services and associated Software ("Software"), any accompanying printed materials and all copies of the Software and printed materials, are owned by NetDIVE and are protected by copyright, trademark and trade secret laws and international treaty provisions. Use of the Software is licensed and not sold.

GRANT OF LICENSE
This Agreement permits the Licensee to use the Software only, in accordance with this Agreement. You may not modify, reproduce, resell, distribute, or make any commercial use of the Software or Services. This Agreement only permits use by the Licensee; no resale of the software is permitted, whether for free or for a fee. The Software can be used on ONE domain name and/or IP Number at any time only.

SUPPORT
Support is included.

Return or Cancellation policy
All sales are final and are nonrefundable.

YOUR RESPONSIBILITIES
You are solely responsible for the content of all of your communications using the Services and associated Software. NetDIVE has the right to delete any content which constitutes unsolicited mass emailing, libelous material, as well as harassing, indecent, obscene, or threatening materials.
You may not make any unauthorized copies of the Software, except that you may either make one copy of the Software solely for backup or archival purposes or transfer the Software to a single hard disk provide you keep the original solely for backup or archival purposes. You may not permit other individuals to use the software except under the terms listed above. You may not modify, rent, lease, sublicense or use the Software for service bureau purposes, but you may transfer your rights under this Agreement on a permanent basis provided you transfer the license granted by this Agreement, the Software and all associated printed materials, retain no copies, and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile or disassemble the Software, except to the extent expressly permitted by applicable law.

EXPORT CONTROLS
Licensee will comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws and regulations of any U.S. or foreign agency or authority. Licensee will not export or re-export, or allow the export or re-export of, any Product or technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such law or regulation, including export or re-export to Cuba, Iran, Iraq, Libya, North Korea or any other country subject to U.S. trade embargoes, or to any party on the U.S. Export Administration Table of Denial Orders or the U.S. Department of Treasury List of Specially Designated Nationals, or to any prohibited destination in any of the Country Groups specified in the then current Supplement No. 1 to part 740 or the Commerce Control List specified in the then current Supplement to part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations).

MARKETING PRESENTATION
NetDIVE will have the right, but not the obligation, to use your logo or name in its marketing materials to express that you have been and/or are a customer of NetDIVE. This presentation might be in the form of your logo being presented on our Web site and/or in our advertising materials.

TERMINATION
This Agreement will remain in effect indefinitely from the earlier of the date the Software is (i) shipped or transmitted from NetDIVE or one of our resellers or (ii) downloaded by you; unless it is terminated earlier by NetDIVE due to a breach by you of its terms. Failure to comply with any provision of this Agreement will result in immediate termination without notice. Upon termination you will cease all use of the Software and destroy, or return to NetDIVE, all printed materials and copies of the Software.

NO OTHER WARRANTIES
NetDIVE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING PRINTED MATERIALS. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS." CUSTOMER REMEDIES. NetDIVE's ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY WARRANTY OR LEGAL THEORY SHALL BE LIMITED TO REPLACEMENT OF THE SOFTWARE OR RETURN OF THE PRICE PAID. NetDIVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR FREE, VIRUS FREE, OR WITHOUT INTERRRUPTION.

LIMITATION OF LIABILITY
IN NO EVENT SHALL NetDIVE BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR THEORY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF INFORMATION, LOSS OF USE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF NetDIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NetDIVE's LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE.

You agree to indemnify, defend and hold harmless NetDIVE, its affiliates, officers, directors, employees, and agents from any and all third party claims, liability, damages and costs (including but not limited to attorneys fees) arising from your use of our services and products, your violation of the terms of sale or use, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity.

ENTIRE AGREEMENT
This instrument contains the entire agreement between the parties and supersedes any prior or contemporaneous agreement.

MODIFICATION AND SEVERABILITY
We reserve the right to make changes to our site, and policies at any time, including but not limited to pricing policies. If any of these conditions are deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of any remaining condition.

WAIVER
The provisions of this Agreement may be waived only with the consent of the parties. The failure of a party to enforce its rights under this Agreement for any period will not be construed as a waiver of such rights.

EXCUSED PERFORMANCE
NetDIVE will not be liable for, nor be considered to be in breach of or default under this Terms of Sale on account of, any delay or failure to perform as required by this Terms of Sale as a result of an event of force majeure or any cause or condition beyond NetDIVE’s reasonable control.

GOVERNING LAW
This Agreement will be governed by the laws of California and the United States without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for actions relating to the subject matter of this Agreement will be the California state and U.S. federal courts having jurisdiction in San Francisco County, California, and the Parties expressly consent to the jurisdiction of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees. To the extent that EC law is applicable, the restriction on reverse engineering is limited to prohibit such activity to the maximum extent without violating the EC Directive on the legal protection on computer programs.
Copyright ©1997 – 2002 NetDIVE, Inc.