End user agreement for Email Marketing Courier
PLEASE READ THIS CONTRACT CAREFULLY. BY INSTALLING OUR SOFTWARE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE, PLEASE DO NOT INSTALL OUR SOFTWARE.
1. "Software" means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media (including electronic media) with which this Agreement is provided or such contents as are hosted by F Key Solutions, Inc. or its distributors, resellers, OEM/MSP partners, or other business partners (collectively "Authorized Partner(s)"), including but not limited to (i) F Key Solutions, Inc. or third party computer information or software; (ii) related explanatory materials in printed, electronic, or online form ("Documentation"); and (b) upgrades, modified or subsequent versions and updates (collectively "Updates"), and Software, if any, licensed to you by F Key Solutions, Inc. or an Authorized Partner as part of a maintenance contract or service subscription.
2. "Use" or "Using" means to access, install, download, copy or otherwise benefit from using the Software.
3. "Permitted Number" means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by F Key Solutions, Inc. or an Authorized Partner.
4. "Computer" means a device that accepts information in digital or similar form and manipulates it for a specific result based upon a sequence of instructions.
2. Licence Grant.
Subject to the payment of the applicable license fees, and subject to the terms and conditions of this Agreement, F Key Solutions, Inc. hereby grants to you a non-exclusive, non-transferable license to Use the Software on computers owned or controlled by you for your own use subject to any restrictions or usage terms specified on the applicable product packaging included as part of the Documentation. Some third party materials included in the Software may be subject to other terms and conditions.
Unless earlier terminated as set forth herein, this Agreement is effective indefinitely. This Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must cease use of the Software and destroy all copies of the Software and the Documentation.
This license is limited to the version of the Software delivered by F Key Solutions, Inc. and does not include Updates. F Key Solutions, Inc. has the right (but not obligation) to offer you upgrades at a discounted rate in the future. F Key Solutions, Inc. will determine prices for the software and prices for upgrades as it sees fit and may change it from time to time with or without notice to you. If you decide to purchase upgrade to a previous version from F Key Solutions, Inc., you must be a current and legal owner of the previous version of the software as determined by F Key Solutions, Inc. Your preferential pricing is a right and you are the only one, who may purchase the upgrade to the original version of software. This right is not transferable.
5. Ownership Rights.
The Software is protected by Canadian and other copyright laws, international treaty provisions and other applicable laws in the country in which it is being used. F Key Solutions, Inc. and its suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Your possession, installation, or Use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. Any copy of the Software and Documentation authorized to be made hereunder must contain the same proprietary notices that appear on and in the Software and Documentation.
6. Multiple Environment Software/Multiple Language Software/Dual Media Software/Multiple Copies/Bundles/Updates.
If the Software supports multiple platforms or languages, if you receive the Software on multiple media, if you otherwise receive multiple copies of the Software, or if you receive the Software bundled with other software, the total number of your Computers on which all versions of the Software are installed may not exceed the Permitted Number. If the Software is an Update to a previous version of the Software, you must possess a valid license to such previous version in order to Use the Update. You may continue to Use the previous version of the Software on your Computer after you receive the Update to assist you in the transition to the Update, provided that the Update and the previous version are installed on the same Computer; the previous version or copies thereof are not transferred to another Computer unless all copies of the Update are also transferred to such Computer, and you acknowledge that any support F Key Solutions, Inc. may have extended to the previous version of the Software ends upon availability of the Update.
You may not sell, lease, license, rent, loan, resell or otherwise transfer, with or without consideration, the Software. You may not reverse engineer, decompile, or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon, the Software in whole or in part. You may not copy the Software or Documentation except as expressly permitted in Section 1 above. You may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement. You may not remove any proprietary notices or labels on the Software. All rights not expressly set forth hereunder are reserved by F Key Solutions, Inc. You may not back up electronic/digital content for which you do not have sufficient legal rights to the content being backed up. You may not: (a) use the Software for any illegal purposes; (b) use the Software to store, retrieve, transmit or view any file, data, image or program that contains: (i) any illegal pictures, materials or information; (ii) any harassing, libelous, abusive, threatening, harmful, vulgar, pornographic, obscene or otherwise objectionable material of any kind or nature; (iii) any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation; (iv) any code or material that violates the intellectual property rights of others; (v) any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); (vi) any viruses, worms, "Trojan horses" or any other similar contaminating or destructive features; or (vii) use the software to send spam as defined in our Anti spam policy.
8. Warranty and Disclaimer.
THE SOFTWARE IS PROVIDED "AS IS" AND F KEY SOLUTIONS, INC. MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, F KEY SOLUTIONS, INC., ITS SUPPLIERS, AND AUTHORIZED PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, F KEY SOLUTIONS, INC. MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.
9. Limitation of Liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL F KEY SOLUTIONS, INC., OR ITS AUTHORIZED PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR GROSS NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN NO EVENT SHALL F KEY SOLUTIONS, INC., OR ITS AUTHORIZED PARTNERS OR SUPPLIERS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE PRICE PAID FOR THE SOFTWARE, IF ANY, EVEN IF F KEY SOLUTIONS, INC. OR ITS AUTHORIZED PARTNERS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Furthermore, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to you. Nothing contained in this Agreement limits F Key Solutions, Inc.'s liability to you for F Key Solutions, Inc.'s gross negligence or for the tort of fraud. F Key Solutions, Inc. is acting on behalf of its suppliers and Authorized Partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
10. High Risk Activities.
The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). F Key Solutions, Inc. EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
11. Governing Law.
This Agreement will be governed by and construed in accordance with the substantive laws in effect in province of Ontario, Canada. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are an individual consumer, this shall not affect any mandatory right you may have to take action in your country of residence and under the laws of that country.
12. Free Software.
This product includes or may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (GPL) or other similar licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code ("Free Software licenses"). The GPL requires that for any software covered under the GPL, which is distributed to someone in an executable binary format, that the source code also be made available to those users. For any such software, the source code is made available in a designated directory created by installation of the Software or designated internet page. If any Free Software licenses require that F Key Solutions, Inc. provide rights to use, copy or modify a software program that are broader than the rights granted in this agreement, then such rights shall take precedence over the rights and restrictions herein.
14. Audit for Volume Licences.
F Key Solutions, Inc. reserves the right to periodically audit you to ensure that you are not using any Software in violation of this Agreement. During standard business hours and upon prior written notice, F Key Solutions, Inc. may visit you and you will make available to F Key Solutions, Inc. or its representatives any records pertaining to the Software. The cost of any requested audit will be solely borne by F Key Solutions, Inc., unless such audit discloses an underpayment or amount due to F Key Solutions, Inc. in excess of five percent (5%) of the initial license fee for the Software or you are using the Software in an unauthorized manner, in which case you shall pay for the cost of the audit in addition to any other fees due F Key Solutions, Inc. based on your violations.
This Agreement sets forth all rights for the user of the Software and is the entire agreement between the parties. This Agreement supersedes any other communications, representations or advertising relating to the Software and Documentation. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of F Key Solutions, Inc. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by F Key Solutions, Inc. If any provision of this Agreement is held invalid; the remainder of this Agreement shall continue in full force and effect.