THIS IS THE SOFTWARE LICENSE (“LICENSE”) RELATING TO WEBSITE ACCELERATOR SOFTWARE (THE "SOFTWARE") THAT YOU ARE REQUIRED TO ACCEPT BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. YOU MAY DOWNLOAD, INSTALL AND USE THE SOFTWARE FOR EVALUATION, TRIAL OR PAID LICENSED PURPOSES. BY SELECTING THE "I ACCEPT THE TERMS IN THE SOFTWARE LICENSE" CHECKBOX OR DOWNLOADING OR INSTALLING THE SOFTWARE, YOU CONSENT TO BE BOUND BY AND ARE A PARTY TO THIS LICENSE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.

THIS LICENSE IS ENTERED INTO BY APTIMIZE LIMITED ("APTIMIZE") AND YOU AS END USER OF THE SOFTWARE ("YOU").

1. Software Trial and Evaluation Use

Trial Use: If You have downloaded or installed the Software but have not paid the applicable license fees or subscriptions, then You may only use the Software strictly for trial purposes. By using the Software for trial purposes You agree the Software may contain Aptimize branding and restrictive use mechanisms as determined by Aptimize from time to time. Aptimize may terminate Your trial use at any time. Pending termination, the terms of this license apply to all trial use subject to this clause.

Evaluation Use: If You have downloaded the Software but have not paid the applicable license fees or subscriptions, then You may also request the right to use the Software for an evaluation period strictly for the purposes of ensuring the Software works in Your operational or test environment. Aptimize in its discretion may provide You with a key or other capability to activate the Software for an evaluation period (without the Aptimize branding but with restrictive use mechanisms as determined by Aptimize from time to time). Aptimize may terminate Your evaluation use at any time. Pending termination, the terms of this license apply to all evaluation use subject to this clause.

In consideration of Aptimize allowing any trial or evaluation use, You agree to respond to any user surveys or other information requests from Aptimize and You agree to inform Aptimize (via email or using the online support capabilities available on the website from which You have accessed the Software) of Your impressions of the Software, positive and negative, and to provide ideas for enhancements to the Software. Where You encounter any problems or defects relating to the Software You agree to inform Aptimize of them. Aptimize may use all feedback in any manner it chooses, including, without limitation, in press releases, as user testimonials, or as a reference in marketing and sales initiatives.

2. License Grant

Aptimize grants to You and You hereby accept from Aptimize, a non-exclusive, non-transferable, non-sub licensable and non-assignable license, to install and use the Software on the agreed number of servers and otherwise only in accordance with the terms of this License. You will provide to Aptimize from time to time such details as Aptimize requires to identify those servers (approved servers).

3. Ownership and Intellectual Property Rights

The Software is protected by copyright and other interests and the Software is the property of Aptimize and confidential information of Aptimize (or its third party suppliers). All rights, title and interest in and to the Software and all modifications to the Software (and all associated intellectual property rights) are and will remain vested in Aptimize or its third party suppliers. These rights are protected by law and international treaties. You acknowledge that no rights, license or interest to any Aptimize trade-marks or trade names are granted under this License.

Aptimize shall indemnify and keep You indemnified against all costs, damages, loss and liability incurred by You by reason of any claim of infringement of any patent, copyright or other intellectual property right as a result of Your use of the Software in accordance with the provisions of this License (“claim”), provided that You have notified Aptimize promptly in writing of the claim; have permitted Aptimize (acting reasonably) to control the defence of the claim; provide reasonable assistance to Aptimize in the conduct of defence of the claim; and agree to any reasonable settlement of the claim, in each case at Aptimize's cost.

If any third party brings a claim against you to prevent Your use of the Software, Aptimize may, at its expense and option: (a) procure for You the necessary right to continue using the Software; (b) modify the Software or replace the infringing portion of the Software with a functionally equivalent non-infringing item; (c) terminate this Agreement and in the event of such termination, You shall be entitled to a proportionate refund of all fees prepaid as at the date of termination in addition to any other rights and remedies You may have. Exercise of any rights under (a), (b) or (c) shall not relieve Aptimize of its obligations under the indemnity given above.

4. License Restrictions

THE SOFTWARE IS LICENSED TO YOU, NOT SOLD. YOU MAY NOT SUBLICENSE, ASSIGN, RESELL, SHARE, PLEDGE, RENT OR TRANSFER ANY OF YOUR RIGHTS UNDER THIS LICENSE IN RELATION TO THE SOFTWARE OR ANY PORTION THEREOF.

EXCEPT AS EXPRESSLY PERMITTED BY RELEVANT COPYRIGHT LAWS, NO COPYING, REDISTRIBUTION, DISPLAYING, PERFORMING, REPRODUCING, LICENSING, TRANSFERRING OR PUBLICATION OF THE SOFTWARE OR ANY OF ITS CONTENT IS PERMITTED WITHOUT THE EXPRESS PERMISSION OF APTIMIZE, WHICH CONSENT SHALL BE AT APTIMIZE'S DISCRETION. ANY SUCH COPY WHICH IS MADE IS SUBJECT TO THE PROVISIONS OF THIS LICENSE, AND ALL TITLES, TRADEMARKS, COPYRIGHT NOTICES AND OTHER LEGENDS SHALL BE REPRODUCED ON SUCH COPY.

YOU MAY NOT USE OR COPY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE. YOU MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE SOFTWARE OR OTHERWISE ATTEMPT TO (A) DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY SOFTWARE PROTECTION MECHANISMS IN THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY SUCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE SOFTWARE OR (B) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATION FORM OF THE SOFTWARE. YOU WILL AT ALL TIMES, INCLUDING DURING AND AFTER THE TERM OF THIS LICENSE, KEEP THE SOFTWARE CONFIDENTIAL.

YOU AGREE THAT THE SOFTWARE WILL NOT BE SHIPPED, TRANSFERRED OR EXPORTED INTO ANY OTHER COUNTRY, OR USED IN ANY MANNER PROHIBITED BY ANY APPLICABLE EXPORT LAWS AND REGULATIONS. YOU AGREE TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS.

YOU AGREE TO INDEMNIFY AND HOLD APTIMIZE, ITS RESELLERS AND THIRD PARTY SUPPLIERS, DIRECTORS, OFFICERS AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES AND EXPENSES, DUE TO OR ARISING OUT OF YOUR USE OF THE SOFTWARE OR BREACH OF THIS LICENSE (SUBJECT ALWAYS TO THE EXCLUSION OF LIABILITY CLAUSE IN THIS LICENSE).

YOU MAY NOT: (A) USE THE SOFTWARE FOR ANY UNLAWFUL PURPOSE, (B) USE THE SOFTWARE IN A MANNER THAT MAY DAMAGE, DISABLE, OVERBURDEN OR IMPAIR NETWORKS CONNECTED TO APTIMIZE, OR (C) ATTEMPT TO GAIN UNAUTHORIZED ACCESS TO APTIMIZE, INCLUDING, WITHOUT LIMITATION, THROUGH HACKING OR PASSWORD MINING.

5. Software Feature Updates in Service Period

Aptimize intends to improve the usability and performance of its products and services. Aptimize may, at its discretion and without notice, add, modify or remove features from the Software at any time provided functionality of the Software is not adversely affected. You shall have the right to receive new features to the Software where Aptimize, in its sole discretion, makes such features available with the Software during the initial Service Period or any renewed Service Period. Your initial Service Period starts at the time You accept this License and continues for 12 months. The Service Period may be renewed for additional consecutive periods of 12 months. You will not be entitled to receive any feature or content updates to the Software unless the Service Period has remained current. Subscriptions for renewals of the Service Period will be available in accordance with Aptimize's support policy posted at http://www.aptimize.com from time to time.

6. Term of License

This license shall be in effect from the time You accept this License, and shall remain in effect until the earlier of: the end of your agreed term (if any); You remove the Software from the approved server; or this license is otherwise terminated. This license will terminate if You fail to comply with any term or condition of this License. You agree upon termination of this License to immediately uninstall the Software and destroy all copies of the Software in Your possession or under Your control.

7. Notice to U.S. Government End Users

The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.

8. Product Protection

There may be technological measures in this Software that are designed to prevent unlicensed, unpaid, unauthorized or illegal use of the Software. You agree that Aptimize may use these measures to protect Aptimize against software piracy and unauthorized use. The Software may contain enforcement technology that limits the ability to install, activate and uninstall the Software.

9. Disclaimer of Warranty

THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. USE OF THE SOFTWARE IS AT YOUR OWN RISK. APTIMIZE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR SECURE OR ACCURATE OR COMPLETE OR CURRENT OR WILL NOT BREACH THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS DISCLAIMER EXTENDS TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, WHERE THE SOFTWARE PROVIDED UNDER THIS LICENSE IS ACQUIRED FOR THE PURPOSES OF A BUSINESS, THE GUARANTEES PROVIDED UNDER THE NEW ZEALAND CONSUMER GUARANTEES ACT 1993 DO NOT APPLY.

10. Exclusion of Liability

NEITHER APTIMIZE NOR YOU WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S ENTIRE LIABILITY IN CONTRACT (OTHER THAN YOUR LICENCE FEES PAYMENT OBLIGATIONS), TORT, OR OTHERWISE ARISING OUT OF OR IN ANYWAY CONNECTED WITH THE USE OF THE SOFTWARE OR OTHERWISE RELATED TO THE SOFTWARE SHALL BE THE ACTUAL DIRECT DAMAGES OF THE OTHER PARTY, BUT IN NO EVENT SHALL THE AMOUNT BE GREATER THAN THE FEES PAID BY YOU TO APTIMIZE. 

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO APTIMIZE’S INTELLECTUAL PROPERTY INDEMNITY, TO ANY BREACH BY YOU OF APTIMIZE’S INTELLECTUAL PROPERTY RIGHTS OR TO ANY BREACH OF CONFIDENTIALITY BY A PARTY.

11. Confidentiality and Privacy

You must not disclose to any third party any information obtained by You under or in connection with this License, which is not in the public domain, including information about the Software, associated documentation and any feedback provided by You.

From time to time, with Your consent, the Software may collect certain information from the server on which it is installed, which may include: (a) Information regarding installation of the Software, this information indicates to Aptimize whether installation of the Software was successfully completed and is collected by Aptimize for the purpose of evaluating and improving Aptimize's product installation success rate. This information will not be correlated with any personally identifiable information; (b) The name given during initial setup to the server on which the Software is being installed. If collected, the name will be used by Aptimize as an account name for such server under which You may elect to receive additional services and/or under which You may use certain features of the Software; (c) Other general, statistical information used for license administration, product analysis, and for improving product functionality. This information will not be correlated with any personally identifiable information.

You acknowledge the collected information as set out above is necessary for the purpose of optimizing the functionality of Aptimize's products and may be used by Aptimize in New Zealand, the United States or other countries that may have less protective data protection laws than the region in which You are situated (including the European Union), but Aptimize agrees to take steps so that the collected information receives an adequate level of protection.

Aptimize may disclose the collected information if asked to do so by a law enforcement official as required or permitted by law or in response to a subpoena or other legal process. Aptimize may share certain information with research organizations and other vendors. Aptimize may also use statistics derived from the information to track and publish reports on internet trends. By using the Software, You acknowledge and agree that Aptimize may collect, transmit, store, disclose and analyze such information for these purposes.

12. Assignment

This license may be assigned by Aptimize.  This license is personal to You and You may not assign this license without the prior written consent of Aptimize.

13. Governing Law

These terms and the license will be governed by New Zealand law and You agree to submit to the exclusive jurisdiction of the New Zealand Courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.