Welcome to the Markzware PageZephyr Network. The following terms of use (the “TOU”) will govern your access and use of the web sites of Markzware, a California corporation (”Markzware”) and its affiliated sites, interactive computer services and online properties, including but not limited to PageZephyr Desktop (the Software) together with the Markzware PageZephyr Network (collectively, the “Markzware Network”).
This TOU incorporates by reference Markzware’s Payment Policies, its Privacy Policy, and its Usage Guidelines, and any Markzware licensing agreement to which you are a party (”Product License Agreement”) (Collectively, the “Markzware Agreements”).
By accessing, browsing, submitting information to, or otherwise using the Markzware Network, you acknowledge that you have read, understand and agree to these terms of use and any other terms presented in the Markzware Network. If you do not agree to these terms of use, you must discontinue your access to and use of PageZephyr Desktop and the Markzware Network. Markzware may amend these terms of use at any time and from time to time without specific notice to you. The latest terms of use will be posted on the Markzware Network. Any changes to these terms of use shall be effective immediately following the posting of such changes. You agree to review these terms of use from time to time and agree that any subsequent access to or use by you of the Markzware Network following changes to the terms of use shall constitute your acceptance of all such changes.
2. Markzware Network
A. Service Changes and Discontinuation. Our Markzware PageZephyr Network provides you with access to a rich collection of online resources, including various search, extraction and publication tools, online forums, personalized content and branded programming. Markzware reserves the right to change or to discontinue, temporarily or permanently, the services at any time without notice. You agree that Markzware will not be liable to you or any third party for any modification or discontinuance of the Markzware Network or any services therein.
B. Service Limitations. We work hard to make your experience enjoyable. However, we cannot always anticipate technical or other operational difficulties, which may result in loss of data, personalization settings or other service interruptions. For this reason, you agree that the Markzware Network, including the services of our third-party service providers, is provided “AS IS” and “AS AVAILABLE”. Neither Markzware nor our third-party service providers assume responsibility for the timeliness, deletion, mis-delivery or failure to store any data, communications or personalization settings.
C. Privacy Policy. Markzware respects your privacy and has developed a detailed Privacy Policy that is incorporated into the TOU. Please take the time to read our Privacy Policy. As a User of PageZephyr and the Markzware Network, you are accepting the terms of our Privacy Policy.
D. Posting User Content. The use of the Markzware Network and PageZephyr.com and the posting of content thereon, are provided as a convenience by Markzware and are at the User’s sole discretion and risk. Markzware assumes no liability whatsoever for interruption of service or loss of User posted data. No Endorsement of User Content. You are solely responsible for all User Content that you upload, post, email, transmit or otherwise make available on or through the use of PageZephyr, the Markzware Network or any 3rd party network (collectively, “Post”). “User Content” means User-Posted content or information of any type or medium, including but not limited to: letters, emails or other messages; other forms of communication through the Markzware Network; personal User information; board posts; reader reviews; blogs, Content ratings, data, notes and testimonials; poll votes; images; audio or video files; and software; whether or not derived through the use of PageZephyr or other services of the Markzware Network. It is the Users sole responsibility to independently back up their User Content to insure against any such loss. You may Search, Extract, Convert and/or Post only User Content which you own, have created or which you have clear permission to perform these actions. You acknowledge and agree that Markzware does not endorse any User Content and is not responsible or liable for any User Content, even though it may be unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, or may infringe upon the intellectual property or other rights of another. You acknowledge that Markzware does not pre-screen User Content, and has no obligation to do so, but that Markzware and its designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move or remove any User Content that is posted on or through the Service. Owners of 3rd party Networks may assert similar rights with respect to online properties under their aegis.
E. Third Party Sites; Advertisers. The Markzware Network may provide you with links or other opportunities to use certain sites, services, products, applications or content offered by or through third-party providers, including but not limited to advertisers, content and ecommerce providers and self-publishing sites (collectively “Third-Party Network”). Your use of any Third-Party Network is subject to any terms of service or conditions of use associated with the Third-Party Network. Markzware does not control Third-Party Networks and is not responsible for any Third-Party Network or for the contents thereof, including, without limitation, any links that may be contained in or accessible through Third-Party Network. Markzware does not endorse any Third-Party Network or any products, content or communications linked to or accessible from the Markzware Network. You agree you are wholly responsible for making your own independent judgment regarding your user or interaction with Third-Party Markzware Network.
3. General Rules
For the benefit of the entire Markzware community, and to comply with applicable laws, we have certain general rules, which Markzware will construe in its sole discretion. Because violation of these rules may be grounds for immediate termination of your right to use the Markzware Network or other actions by Markzware, you should carefully read and follow them.
A. Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself when requested in the Markzware Network registration forms (the “Registration Data”). You agree to update the Registration Data to keep it current and accurate.
B. Guard Your Password. Upon completing the registration process, you will receive an account and select a password. You are responsible for maintaining the confidentiality of your password and account, and you are fully responsible for all activities that occur under your password or account. In the event of any unauthorized use of your password or account or any other breach of security, you must notify Markzware immediately and promptly change your password. Please edit your profile for instructions on how to change your password or to contact Markzware, pagezephyr@markzware.com. In addition, PageZephyr provides the ability to login to your own personal account on Third Party Networks including but not limited to Google, WordPress and others. PageZephyr does not store your login information; it simply passes the information to the Third Party Network login portal. If you check the “Save my … Account Information” box in any of the PageZephyr Third Party Network publishing dialogs; that information is stored in your Macintosh OS/X Keychain, not by PageZephyr or the Markzware Network.
C. Obey the Law. You agree not to use the Markzware Network for illegal purposes or for the transmission of material that is unlawful, harassing, libelous, invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the copyright or other intellectual property rights of others.
D. Permitted Use of Content. The content included in the Markzware Network, including all web site design, text, graphics, photos, audio, video, the selection and arrangement thereof, and all software that are part of the Markzware Network (collectively, the “Content”) is owned by Markzware. All Content is made available to you for your personal, non-commercial use and may be stored on a computer only for such use. You shall not (a) use any content contained in the Content in any manner that may give a false or misleading impression, attribution or statement as to Markzware, the Copyright Holder, or any third party referenced therein, (b) use the Markzware Network and/or the Content and services and products on the Markzware Network or accessible via the Markzware Network for any unlawful purposes, and (e) publicly display, perform, or distribute any Document and shall not modify, translate, alter or create any derivative works thereof. Any other use of the Content without Markzware’s prior written consent is expressly prohibited The Content is protected by copyright, trademark, service mark, patent and other proprietary rights and laws. Publication, sale, redistribution in any form or medium, as well as modification or use of the Content, except as expressly permitted, is prohibited without the prior written permission of Markzware.
E. Limits on Use of the Markzware Network. You agree not engage in any of the following: (i) use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, data scrape, copy or transfer any part of the Markzware Network or the Registration Data or other data of any User (whether individually or in the aggregate); (ii) probe, scan or test the vulnerability of the Markzware Network, or breach the security or authentication measures on the Markzware Network; (iii) reverse look-up, trace or seek to trace any information on any other User of the Markzware Network, including any Markzware account not owned by you, to its source, or exploit the Markzware Network in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information as provided for by the Markzware Network; (iv) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Markzware Network; (v) use any device, software or routine to interfere or attempt to interfere with the proper working or authorized uses of the Markzware Network or with any other person’s use of the Markzware Network; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any message transmittal you send on or through the Markzware Network; (vii) impersonate any other individual or entity or misrepresent your identity or your affiliation with another individual or entity.
F. Limits on Use of PageZephyr Desktop (the Software). Use of PageZephyr Desktop is governed by the Markzware End User License Agreement v2.5 or higher (EULA v2.5) which is available at http://www.markzware.com and/or http://www.pagezephyr.com.
G. The Markzware Network Community
1) Community Conduct. By using and/or registering for the Markzware Network, or creating User Content, you agree to use the Markzware Network only to post User Content that is proper and related to the particular forum. By way of example, and not as a limitation, you agree that when using the Markzware Network, you will not:
a. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
b. Post any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
c. Post files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have expressly received all necessary consents.
d. Post files or content that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer. Post files or content with formatting or other code that may damage or alter the Markzware Network sites or those of the Third Party Network
e. Advertise or offer to sell any goods or services for any commercial purpose.
f. Post surveys, contests, pyramid schemes or chain letters.
g. Download any file posted by another User of a forum that you know, or reasonably should know, cannot be legally distributed in such manner.
h. Restrict or inhibit any other User from using and enjoying any public area of the Markzware Network.
i. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, or impersonate any person or entity or falsely state or misrepresent your affiliation with any person or entity.
j. If you choose to use language, such as a user name that, in Markzware’s sole discretion, is obscene, indecent, offensive, or abusive or that might otherwise be objectionable or inappropriate, we reserve the right without prior notice to you to delete or change the offending language including your user name.
2) Monitoring. Markzware and its affiliates have no obligation to pre-screen or monitor the content Posted on the Markzware Network. However, Markzware and its affiliates reserve the right at all times to edit or remove any content or communications, in whole or in part, in Markzware ’s or any of its affiliates’ sole discretion and to disclose any information or take any action as necessary to satisfy any applicable law, regulation, legal process or governmental request.
3) Usage. Content or communications posted using the Software are generally public, not private communications and others may read your communications without your knowledge or consent. You should not have any expectation of privacy relative to your communications through the Markzware Network. Always use caution when posting personal information especially when posting information that could personally identify you. Your posting of any User Content through the Software is done at your own risk. Markzware is not responsible for its theft, copying or placement of that User Content on other media or networks. Markzware and its affiliates do not control or endorse the content, messages or information found in any community and, therefore, Markzware and its affiliates specifically disclaim any liability with regard to the Software and the content therein and any actions resulting from your participation or the participation of others using the Software. Community participants are not authorized spokespersons of Markzware or any of its affiliates, and their views do not necessarily reflect those of Markzware and its affiliates. Third Party Network site managers do, however, set standards on their own community areas. By posting User Content through the Software you grant Markzware and/or Third Party Networks certain rights as described in Section 4A below.
G. Downloads
Any material or third party software downloaded through or for the use of the Markzware Network is done at your own discretion and risk, and Markzware will not be responsible in any way for any damage to your computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from the Markzware Network or our third party service providers will create any warranty not expressly stated.
4. Rights You Grant to Markzware.
A. User Content. You own your own content. By submitting any User Content through or to the Markzware Network, including the use of the Software, you hereby irrevocably grant to Markzware, its affiliates, distributors and the Third Party Network a worldwide, royalty-free, non-exclusive, and fully sub-licensable license, to publicly perform, publicly display, transfer, transmit and distribute on the Markzware Network or Third Party networks, in connection with promotion or elsewhere, such User Content (in whole or in part) and to incorporate the User Content into other works in any format or medium now known or later developed. Notwithstanding the foregoing, when you submit text, video or images , Markzware may modify the format, content and display of such User Content. The foregoing grants shall include the right to exploit any proprietary rights in such User Content, including but not limited to rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. With respect to User Content you Post for inclusion on publicly accessible areas of the Markzware Network, You grant Markzware the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such User Content on the Markzware Network or on any media. You agree that the foregoing grant of rights by you to Markzware and its affiliates is provided without any the entitlement of payment of fees or consideration of any kind whatsoever.
B. Account Access. In order to ensure that Markzware is able to provide high-quality services that are responsive to Users’ needs, you agree that Markzware representatives will have access to your account and records as reasonably needed to investigate complaints. You are responsible for providing all personal computer and communications equipment necessary to gain access to the Service.
5. Children and Mature Content
The Markzware Network services are not directed to children under the age of 13. Markzware will not knowingly collect personally identifiable information on or through the Markzware Network from anyone under 13. Please be aware that certain areas on the Markzware Network contain mature content and there may be posted specific age restrictions to access and view such areas. You may be exposed to Content on the Markzware Network that you find offensive, indecent or objectionable. By using the Markzware Network you assume all risk associated with its use. We encourage parents to supervise their children’s use of the Markzware Network and maintain open communication regarding appropriate materials for use and viewing by their children. Note to Parents. If you have any concerns about the Markzware Network, please contact us via our online form available at info@markzware.com.
6. Other Legal Stuff
A. Disclaimer of Warranties. You expressly understand and agree that:
YOUR USE OF THE MARKZWARE NETWORK IS AT YOUR SOLE RISK. THE MARKZWARE NETWORK IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MARKZWARE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE “MARKZWARE PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE MARKZWARE PARTIES MAKE NO WARRANTY THAT (I) THE MARKZWARE NETWORK WILL MEET YOUR REQUIREMENTS, (II) THE MARKZWARE NETWORK WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MARKZWARE NETWORK WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, MARKZWARE NETWORK, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE MARKZWARE NETWORK WILL MEET YOUR EXPECTATIONS, (V) THAT YOUR MESSAGES, DATA OR INFORMATION, IN WHATEVER FORM OR MEDIUM, WILL NOT BE LOST, AND (VI) ANY ERRORS WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE MARKZWARE NETWORK IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY MARKZWARE PARTY, OR THROUGH OR FROM THE MARKZWARE NETWORK WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH JURISDICTIONS, LIABILITY OF THE MARKZWARE PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
To the extent that any part of this section is not consistent with any other part of the TOU, then this Disclaimer of Warranties will override it.
C. Limitation of Liability. YOU AGREE THAT THE MARKZWARE PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE MARKZWARE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE MARKZWARE NETWORK; (II) THE COST OF GETTING SUBSTITUTE GOODS AND MARKZWARE NETWORK RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR MARKZWARE NETWORK PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE MARKZWARE NETWORK; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANYONE ON THE MARKZWARE NETWORK; OR (V) ANY OTHER MATTER RELATING TO THE MARKZWARE NETWORK. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, ANY MARKZWARE PARTY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS ANY WAY CONNECTED TO YOUR USE OF THE MARKZWARE NETWORK, LIABILITY OF THE MARKZWARE PARTIES SHALL IN NO EVENT EXCEED THE GREATER OF (I) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO ANY SERVICE OR FEATURE OF THE MARKZWARE NETWORK PAID IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST Markzware, OR (II) US$100.00.
D. Indemnification. You agree to protect and fully compensate the Markzware Parties from any and all third-party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorneys’ fees) arising from your use of the Markzware Network, or violation of the TOU by you or any other user of your account (whether or not authorized).
E. Copyright Infringement. Markzware takes the protection of intellectual property rights very seriously. You must have legal ownership rights to extract and publish content using PageZephyr and the Markzware PageZephyr Network. All content must be created by you. No exceptions. If your content has been published elsewhere, make sure you still own the copyright to it and the byline matches your real name.
If you feel that content on the Markzware PageZephyr Network may be infringing on your copyright or other intellectual property rights, please contact us at the address below.
If you believe that content you own has been used on the Markzware PageZephyr Network in a way that violates your copyright or other intellectual property rights, please provide Markzware’s Copyright Agent the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. A description of the copyrighted work or other intellectual property that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on the site;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Markzware’s Designated Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By Mail:
Designated Agent
Attention Legal Department
1805 E. Dyer Road
Suite 101
Santa Ana, CA 92705
By Facsimile:
949-756-5108
By email:
Copyright@markzware.com
F. Miscellaneous. Markzware’s rights under the TOU may not be waived unless Markzware agrees to such change in writing. The TOU and your account on the Markzware Network are personal to you and may not be transferred or assigned. These Terms of Use shall be governed by and construed in accordance with the laws of the State of California, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California. Any action, proceeding, dispute, claim or controversy arising out of or relating to the Markzware Network or these Terms of Use shall be brought exclusively in the United States District Court for the District of California or the District Court in and for the City of Santa Ana, Orange County, State of California. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum. Markzware’s performance of the TOU is subject to existing laws and legal process, and nothing contained in the TOU is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Markzware Network or information provided to or gathered by Markzware with respect to such use. If any part of the TOU is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the TOU shall continue in effect. The TOU, together with any additional terms and conditions or policies referred to and incorporated herein (including additional terms applicable to various parts of the Markzware Network and the Privacy Policy), constitutes the entire understanding between you and Markzware regarding the Markzware Network. A printed version of the TOU and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the TOU to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The parties have agreed that the TOU shall be written in English.
G. Notices. Markzware may give you notice of certain events from time to time and may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on our Markzware Network or delivering them to you through email if you have provided Markzware with your accurate email address.
Direct questions or notices to Markzware as follows:
Markzware, Inc.
Attn: Customer Service
1805 E. Dyer Road
Suite 101
Santa Ana, CA 92705
Email:
info@markzware.com
