End User License Agreement

END USER LICENSE AGREEMENT FOR ZIMINI CONSUMER AND MERCHANT SOFTWARE VERSION REV. 1.0.0.

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING THE ZIMINI CONSUMER AND MERCHANT SOFTWARE PRODUCED BY ZIMINI, INC. BY INSTALLING THE SOFTWARE VERSION 1.0.0., AND ANY REVISIONS THERETO, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS END USER LICENSE. IF YOU DO NOT ACCEPT THE TERMS OF THIS END USER LICENSE DO NOT INSTALL THE SOFTWARE. IF YOU INSTALL THE SOFTWARE AND YOU DECIDE NOT TO KEEP THE SOFTWARE, FOR WHATEVER REASON, THEN REMOVE ALL COPIES OF THE SOFTWARE FROM YOUR COMPUTER, PDA, SMARTPHONE, COMPUTING OR ELECTRONIC STORAGE DEVICE AND DESTROY ALL SUCH COPIES AND ANY DOCUMENTATION RELATED THERETO SUCH SOFTWARE.

A. License. The Zimini Consumer and Merchant Software (hereinafter the "Software") version 1.0.0. and any revisions thereto that you install from ZIMINI, INC., is licensed to you (either as an individual, or as a single legal entity) by ZIMINI, INC. ("Vendor") pursuant to the terms of this End User License Agreement (the “License”). You own the medium on which the Software is recorded, but Vendor and Vendor's Licensors (referred to collectively as "Vendor") retain title to the Software, the user modifiable templates (“Templates”), and related documentation. Subject to the terms and condition herein set forth, Vendor hereby grants to you a royalty-free non-exclusive non-transferable license to use the Software as follows:

1. As a consumer (“Consumer”) (an individual) you may use the Software on any computer, personal digital assistant (“PDA”), Smart phone, and computing or other electronic storage device when such use is by the Consumer and in conjunction with the Consumer’s own unique user name and password for non-commercial purposes and not on behalf of any other person or entity (collectively, a “Third Party”) and that only one (1) such device and user name and password are in use at any time;
2. As a merchant (“Merchant”) (a single legal entity), excluding its affiliates, you may use the Software for a commercial purposes and make copies of the Software for internal distribution and use on any computer, server, network server, personal digital assistant (“PDA”), Smart phone, and computing or other electronic storage device that the Merchant provides to its employees for their sole and exclusive use in conducting the Merchant’s business, and
   1. when such use in conjunction with the Merchant’s own unique user name and password and it is solely and exclusively to prepare coupons (“Coupons”) for promoting the Merchant’s own products and services and not on behalf of any Third Party; or
   2. when such use is by the Merchant on behalf of or for the benefit of a Third Party to prepare Coupons for promoting the Third Party’s products and services provided that such Third Party has agreed to the terms of this License and has obtained its own unique user name and password from the Vendor, and that such use on behalf of such a Third Party is in conjunction with the Third Party’s own unique user name and password and where such use is pursuant to the terms of this License. You and Vendor agree that the rights granted to you pursuant to this License are limited and Vender reserves the right to modify, use, and sell the Software and to license others to modify, use, and sell the Software, and that nothing contained herein this License shall be deemed to convey any title or ownership interest in the Software to you.
      

B. Restrictions. The Software contains copyrighted material, trade secrets, patent pending, and other proprietary material, and thus, the rights granted to you pursuant to this License are limited. Except as permitted by applicable legislation or this License, you shall not:

1. Copy the Software or make a backup of the Software;
2. Transfer the rights in the Software granted to you pursuant to this License in whole or in part to a Third Party including your affiliates if you are a Merchant;
3. Decompile, reverse engineer, disassemble, decrypt, decode or otherwise reduce the Software or data including, but not limited to those portions that are encrypted or otherwise secured to a human‑perceivable form;
4. Modify, rent, lend, loan, create any alteration, adaptation, translation, improvement, or distribute or create derivative works based upon the Software in whole or in part, or any of the following client side elements or developer’s code embedded within the Software such as that provided by:
   1. Infragistics, Inc., 50 Millstone Road, Bldg 200, Suite 150, East Windsor, NJ 08520;
   2. Olvio IT, Inc., 602 Grandview Avenue, #2R, Ridgewood, NY 11385; or
   3. Microsoft Corporation, One Microsoft Way, Redmond, Washington 98052-6399
5. Use, propagate, replicate, or otherwise incorporate or distribute the Templates other than in conjunction with the use of the Software that is permitted pursuant to this License;
6. Electronically transmit the Software from one computer to another or over a network, upload the Software to electronic bulletin boards, web sites, or otherwise transmit or distribute the Software or any portion thereof, whether electronically, or on tangible media in any manner to another party, affiliate, or entity in contradiction of the limited rights granted to you pursuant to this License;
   1. Create consumer profiles, reports, or otherwise use the Software to conduct market research, or to otherwise track or determine the identity of a Consumer and/or a Merchant or publish any results of tests run on the Software to a Third Party;
   2. Use any of the corporate names, trademarks, service marks, certification marks, trade names, slogans, logos or other designations of Vendor its subsidiaries or affiliates even if such marks appear on or in the Software or are otherwise included in any documentation provided to you in connection with this License;
   3. Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels contained in the Software, Templates, or printed on the coupons that are produced by the Software;
   4. Use the Software for a Third Party unless said Third Party has entered into a license agreement with the Vendor and they have obtained there own unique user name and password from the Vendor; or
   5. Use the Software to produce defamatory statements, or in violation of any law of any state, or the United States, or of the jurisdiction in which you obtained the Software. 12) Use the Software to learn about Zimini, Inc., or its customers. You shall cooperate with Vendor, and you shall render all reasonable assistance requested by Vendor, to assist Vendor in preventing and identifying any use of, or access to, the Software in violation of this License.

C. Ownership. All right title and interest in the Software shall remain exclusively in the Vendor. The Software is protected by copyright law and other intellectual property laws.

D. Software Updates. Vendor may at its sole discretion from time to time provide Software updates (“Software Updates”) to you to update, supplement, or replace existing functionality of the Software, or to improve the performance of the Software, enhance its features, or correct problems that have been identified. Vendor will grant to you a license to use the Software Update under the terms and conditions of this EULA, or the Vendor may issue a Supplemental EULA provided that you agree to comply with all such terms and conditions therein. To the extent that any terms in the Supplemental EULA conflict with terms in the License for the Software version 1.0.0. and any revisions thereto, the terms of the latest Supplemental EULA shall control. You hereby acknowledge and agree that Vendor may, at its sole discretion, terminate this License and your ability to use the Software if you fail to agree to install a Software Update.

E. Termination. This License is effective until terminated. Vendor may terminate this License at any time, for any reason or no reason. You may terminate this License at any time by destroying the Software, related documentation and all copies thereof. This License will terminate immediately without notice from Vendor if you fail to comply with any provision of this License. Upon termination, you must destroy the Software, related documentation and all copies thereof.

F. Consent to Communications. By agreeing to the terms of this License you consent to receiving communications from Vendor regarding the Software including, but not limited to, notices regarding upgrades, enhancements, changes, and revisions offered by Vendor.

G. Export Law Assurance. You agree and certify that neither the Software nor any other technical data received from Vendor, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by you outside of the United States, you agree that you will not re-export the Software nor any other technical data received from Vendor, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software.

H. Government End Users. If you are acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply. The Government agrees: 1) If the Software is supplied to the Department of Defense (DoD), the Software is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the Software and its documentation as that term is defined in Clause 252.227‑7013(c)(1) of the DFARS; and 2) If the Software is supplied to any unit or agency of the United States Government other than DoD, the Government's rights in the Software and its documentation will be as defined in Clause 52.227‑19(c)(2) of the FAR or, in the case of NASA, in Clause 18‑52.227‑86(d) of the NASA Supplement to the FAR.

I. Notice Regarding Rights. You expressly acknowledge and agree that YOUR USE OF THE SOFTWARE SHALL BE SUBJECT TO THE TERMS OF THE LICENSE, VENDOR’S WEB PAGE USE POLICY, AND VENDOR’S PRIVACY POLICY, AND THAT VENDOR MAY MIRROR THE DATA THAT YOU ENTER INTO YOUR PROFILE FOR THE PURPOSE OF COMPILING REPORTS AND PERFORMING ANALYSIS ON SAID DATA, AND VENDOR MAY PUBLISH SAID DATA IN AGGREGATE FORM FOR THE PURPOSE OF DEVELOPING AND MARKETING NEW PRODUCTS AND SERVICES, AND FOR MARKETING EXISTING PRODUCTS AND SERVICES.

J. Disclaimer of Warranty on Software. You expressly acknowledge and agree that use of the Software is at your sole risk. The Software and related documentation are provided "AS IS" and without warranty of any kind and VENDOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VENDOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR‑FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, VENDOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VENDOR OR VENDOR'S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT VENDOR OR VENDOR'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

K. Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL VENDOR, OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PERSONAL INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF VENDOR OR VENDOR'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS 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. IN NO EVENT SHALL VENDOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. IN THE EVENT THAT A DISPUTE ARISES BETWEEN A CONSUMER AND A MERCHANT REGARDING THE VALUE OF A COUPON, OR THE AVAILABILITY OF A PROMOTIONAL ITEM, THE VALUE OF THE COUPON SHALL BE LIMITED TO 1/10 CENT ($0.001).

L. Controlling Law and Severability. This License shall be governed by and construed in accordance with the laws of the United States and the State of Illinois without regard to its laws of conflicts, as applied to agreements entered into and to be performed entirely within Illinois between parties who reside in Illinois. If for any reason, a court of competent jurisdiction finds any provision of this License or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible to effect the intent of the parties, and the remainder of this License shall continue in full force and effect. Personal jurisdiction and venue for all disputes arising out of the performance of this License shall be vested exclusively in any court sitting in Chicago, Cook County, Illinois.

M. Injunctive Relief. You acknowledge and agree that the copying, disclosure or use of the Software or any information, materials or services provided hereunder in a manner inconsistent with any provision of this License shall cause irreparable injury to Vendor for which Vendor shall not have an adequate remedy at law. Accordingly, Vendor shall be entitled to equitable relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions, and without limiting the rights available to Vendor, Vendor may seek any other remedies as may be available to it.

N. Complete Agreement. This License constitutes the entire agreement between you and the Vendor with respect to the use of the Software, Version 1.0.0. and any revisions thereto, and the related documentation, and it supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and published by the Vendor on its Web site.