Terms of Use

The following terms and conditions govern all use of the www.zmanda.com website (the "Website"). Please read these Terms of Use carefully before using the Website. The Website is offered subject to acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time by Zmanda, Inc. ("Zmanda") on www.zmanda.com (collectively, the "Terms of Use").

The Website is available only to individuals who are at least 18 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. If you do not so qualify, do not attempt to register for or use the Website. Zmanda may refuse to offer the Website to any person or entity and may change its eligibility criteria, at any time, in its sole discretion.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE, THEN DO NOT ACCESS OR USE THE WEBSITE. BY VIEWING OR USING ALL OR ANY PART OF THE WEBSITE, DOWNLOADING ANY MATERIALS OR BY COMPLETING THE SUBSCRIPTION AND INFORMATION REQUEST REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS OF USE.

Changes

Zmanda may modify all or any part of these Terms of Use from time to time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of this Website after changes to the Terms of Use have been published constitutes your binding acceptance of the updated Terms of Use. If at any time the Terms of Use are no longer acceptable to you, you should immediately cease all use of the Website.

Proprietary Rights

Zmanda either owns the intellectual property rights in the HTML, text, images audio, video, software or other content that is made available on the Website, or has obtained the permission of the owner of the intellectual property. Zmanda strictly prohibits the redistribution or copying of any part of this Website or content on this Website without written permission from Zmanda, with the exception of open source software, e.g. AMANDA backup software. You agree that all content and materials delivered via the Website or otherwise made available by Zmanda are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Zmanda in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content.

Systematic retrieval of data or other content from the Website to create or compile, directly or indirectly, a collection, database or directory without written permission from Zmanda is prohibited. Use of the content or materials for any purpose not expressly permitted in these Terms of Use is prohibited. Any rights not expressly granted herein are reserved.

Any software ("Software") that is made available to you to download from the Website is the copyrighted work of Zmanda and/or third parties including Open Source projects such as AMANDA. Your use of the Software is governed by the terms of the applicable end-user license agreement that accompanies or is included with such Software ("License Agreement"). You may not install any such Software, unless you first agree to the terms of the License Agreement. If you do not agree to the terms of the License Agreement, you may not use such Software.

License to Zmanda

By uploading, submitting or otherwise disclosing or distributing content of any kind at or through the Website, you:

• grant to Zmanda, its affiliates and their assignees the perpetual, irrevocable, non-exclusive, royalty-free right to use, reproduce, display, perform, adapt, modify, distribute, make derivative works of and otherwise exploit such content in any form and for any purpose, including without limitation, any concepts, ideas or know-how embodied therein;
• represent and warrant to Zmanda that you own or otherwise control all rights to such content and that disclosure and use of such content by Zmanda (including without limitation, publishing content at the Site) will not infringe or violate the rights of any third party; and
• acknowledge that the content may not be treated confidentially.

You agree not to provide Zmanda with any confidential or proprietary information that you desire or are required to keep secret.

Termination

Zmanda may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate your account, you may simply discontinue using the Website.

Linking

This website contains links to other websites and resources and are provided for convenience only. Zmanda, Inc. has not reviewed the linked websites and is not responsible for the content or availability of any linked websites. The inclusion of any link to a website does not imply endorsement by Zmanda, Inc. of the website or their entities, products or services.

Rules of Conduct

Your use of the Website is subject to all applicable local, state, national and international laws and regulations, and you agree to abide by such laws and regulations. By way of example, and not as a limitation, you agree not to (a) take any action or (b) upload, post, submit or otherwise distribute or facilitate distribution of any content (including text, communications, software, images, sounds, data or other information) using any communications service or other service available on or through the Website, that:

• is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, profane or which otherwise violates the Terms of Use;
• infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any party;
• constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
• imposes an unreasonable or disproportionately large load on Zmanda's computing, storage or communications infrastructure, or attempts to gain unauthorized access to the Website, other accounts, computer systems or networks connected to the Website, through password mining or otherwise;
• contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of Zmanda or any third party;
• restricts or inhibits any third party from using or enjoying the Website by "hacking", "cracking", "spoofing", or defacing any portions of the Website;
• harvests or collects any information from the Website or its visitors without their express written consent; or
• impersonates any person or entity, including any employee or representative of Zmanda.

Zmanda may, at its sole discretion, immediately terminate your access to the Website should your conduct fail to conform strictly with any provision of this section, or may seek other legal remedies, including without limitation, criminal penalties.

Monitoring

Zmanda has the right, but not the obligation, to monitor the content of the Website, to determine compliance with these Terms of Use and any other operating rules established by Zmanda from time to time. Zmanda has the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on the Website that Zmanda finds to be in violation of these Terms of Use or in its sole discretion, is otherwise objectionable. You are solely responsible for any information you post, transmit or otherwise make available on the Website. You acknowledge and agree that Zmanda does not have any liability for any action or inaction with respect to any conduct, communication or posting on the Website.

Export Control and International Use

By using the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods. You agree you will not export or re-export any goods or products unless you have complied with all applicable U.S. and foreign government export controls and approvals. Zmanda makes no claim that content contained on the Website is appropriate or may be downloaded outside the United States. If you access the Website from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

No Warranties

EXCEPT AS OTHERWISE SET FORTH HEREIN (OR UNLESS OTHERWISE SPECIFIED IN THE LICENSE AGREEMENT), THE WEBSITE AND ALL CONTENT, MATERIALS, INFORMATION, SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS", "WITH ALL FAULTS", AND "AS AVAILABLE" BASIS. ZMANDA MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. FOR THE SAKE OF CLARITY, EXCEPT AS MAY BE SPECIFIED IN THE APPLICABLE LICENSE AGREEMENT, YOU BEAR THE ENTIRE RISK AS TO QUALITY AND PERFORMANCE WITH RESPECT TO ANY SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT ZMANDA OR ITS AFFILIATES, LICENSORS, AND SUPPLIERS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. YOUR USE OF THE WEBSITE AND ANY SOFTWARE PROVIDED HEREUNDER IS ENTIRELY AT YOUR OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZMANDA OR ANY OF ITS AGENTS SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. Some states or jurisdictions do not allow the exclusion of implied warranties, so the above limitations may not apply to you.

Limitation of Liability and Remedies

TO THE FULLEST EXTENT PERMITTED BY LAW (OR UNLESS OTHERWISE SPECIFIED IN THE LICENSE AGREEMENT), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL ZMANDA OR ITS AFFILIATES, LICENSORS, AND SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM YOUR USE OF THE WEBSITE OR ANY SOFTWARE OR OTHER CONTENT PROVIDED HEREUNDER), EVEN IF ZMANDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE LIABILITY OF ZMANDA UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR USE OF THE CONTENT OR SOFTWARE PROVIDED HEREUNDER OR U.S. $5.00. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some states or jurisdictions do not allow the exclusion or limitation of direct, incidental, or consequential damages, so the above limitation or exclusion may not apply to you.

Privacy

Zmanda's current privacy policy is available at www.zmanda.com contained within the Privacy Policy, which is incorporated herein by reference.

Dispute Resolution

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Zmanda agree that any cause of action arising out of or related to the Website must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

These Terms of Use shall be governed by and construed in accordance with the laws of the California, excluding its conflicts of law rules, and the United States of America. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Use or your use of the Website shall be filed only in the state or federal courts located in California, USA, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. Use of the Website is not authorized in any jurisdiction that does not give effect to all provisions of these Terms of Use, including without limitation, this section.

Integration and Severability

These Terms of Use are the entire agreement between you and Zmanda with respect to the Website, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Zmanda with respect to the Website (but excluding the use of any Software which may be subject to a separate end-user license agreement). If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable.

Miscellaneous

These Terms of Use and the Website contemplated hereunder are personal to you, and are not assignable, transferable or sublicensable by you except with Zmanda's prior written consent. Zmanda may assign, transfer or delegate any of its rights and obligations hereunder without consent. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery Website.

Copyright and Trademark Notices

Unless otherwise indicated, these Terms of Use and all content provided by Zmanda are copyright 2005 Zmanda, Inc. All rights reserved.

Zmanda is a trademark of the Company. The names of actual companies and products mentioned at the Website may be the trademarks of their respective owners.

Contact

If you have any questions about Terms of Use by Zmanda, Inc., please feel free to contact us via feedback (at) zmanda.com, or by mail at:
Zmanda, Inc.
505 N. Mathilda Ave. #120
Sunnyvale, CA 94085