End user agreement for eM Client
END USER LICENSE AGREEMENT
eM Client Software
10 Coldbath Square
London, EC1R 5HL UK
eM Client Software for Commercial and Non-commercial (free) use ("eM Client"), hereby grants Customer and Customer hereby accepts from eM Client, an indefinite, non-exclusive and non-transferable right to use the software products described in Section 1 below (the "Software") on the designated hardware described in Section 2 below (the "Designated Hardware"), subject to the terms and conditions specified below.
IMPORTANT - READ BEFORE COPYING, INSTALLING, OR USING
Do not use or load this software and any associated materials (collectively, the Software) until you have carefully read the following terms and conditions.
By loading or using the Software, you agree to the terms of this Agreement. If you do not wish to so agree, do not install or use the Software.
GENERAL TERMS AND CONDITIONS
1. SOFTWARE: "Software" means (i) the machine-readable object code version of the software that eM Client or its authorized representative makes available and described in the Product Schedule, whether embedded on disc, tape or other media (the "Software"), (ii) the published user manuals and documentation that eM Client or its authorized representative makes generally available for the Software (the "Documentation"), (iii) the updates or revisions of the Software or Documentation that eM Client or its authorized representative may offer to Customer pursuant to Section 6 (the "Updates") and (iv) any copy of the Software, Documentation or Updates. Nothing in this Agreement will entitle Customer to receive source code of the Software or Updates, in whole or in part.
2. DESIGNATED HARDWARE: "Designated Hardware" means the hardware equipment specified on the Product Schedule. Customer may use the Software only on the Designated Hardware while it possesses and operates the Designated Hardware.
3. USE: Customer may use the Software only in and for Customer's own internal purposes and business operations. Customer will reproduce all confidentiality and proprietary notices on each of these copies and maintain an accurate record of the location of each of these copies.
You may copy the Software onto your organization's computers for use within your organization subject to these conditions:
a) You may not copy, modify, rent, sell, distribute or transfer any part of the Software except as provided in this Agreement, and you agree to prevent unauthorized copying of the Software.
b) You may not reverse engineer, decompile, or disassemble the Software.
c) You may not sublicense or redistribute the Software
d) The software may contain the software and other property of third party suppliers, some of which may or may not be identified in, and/or licensed in accordance with, the Agreement, and/or an enclosed license.txt file or other text or file.
e) You shall make reasonable efforts to discontinue use of the older version of Software upon eM Client's release of an update, upgrade, or new version of the Software.
f) You may not make any statement that the Software is certified, or that its performance is guaranteed, by eM Client.
4. SUPPORT: The following terms and conditions shall apply to (i) during the first year after the purchase (the "Initial Support Term") and (ii) during each Additional Support Term (as defined below) that Customer has purchased from eM Client or its authorized representative:
a) Support Agreement: eM Client or its authorized representative will provide support for the Software during the Initial Support Term and each Additional Support term, if any. Support includes configuration assistance, how-tos, problem determinations, reasonable problem resolutions and automatic provisioning of software program temporary fixes. It also includes phone support during working hours via email or other forms of communication. Support will entitle Customer to receive free updates during the Initial Maintenance Term and each Additional Maintenance Term, if any.
b) Support Terms: Upon expiration of the Initial Support Term, support can be purchased for a 12 month period (an "Additional Support Term"), and eM Client will invoice Customer. Upon expiration of any Additional Support Term, support will automatically renew for another 12 month Additional Support Term, and eM Client will invoice Customer unless eM Client or its authorized representatives are notified by Customer 60 days prior to the renewal date. If Customer allows support to lapse, Customer will not be entitled to subsequent support except at full fair market value. If Customer would like to renew the support contract, a new contract will be executed.
c) Free/Non-commercial License Support: Users of eM Client for Free/Non-Commercial use are entitled to use only community based support available at <http://www.emclient.com>
a) Maintenance Agreement: eM Client will provide maintenance for the Software provided that the Customer has purchased the Maintenance agreement. Maintenance includes version upgrades and product enhancements.
b) Program Enhancements and Updates: During the first Maintenance Term and each Additional Maintenance Term, if any, eM Client or its authorized representative shall provide Customer, at no additional charge, with all upgrades and enhancements to the Software which are generally offered by eM Client. These would include (i) enhancements to the application, (ii) updates of the application due to Designated Hardware manufacturers releases (will be available to customer within 30 days of Designated Hardware manufacturer's announcement of their new release), and (iii) any special “fixes” that may be required in order for the software to operate in a specific business environment.
7. OWNERSHIP OF SOFTWARE AND COPYRIGHTS: Title to the Software and all copies thereof remain with eM Client or its suppliers. The Software is copyrighted and is protected by United States copyright laws and international treaty provisions. You will not remove any copyright notice from the Software. You agree to prevent any unauthorized copying of the Software. Except as expressly provided herein, eM Client does not grant any express or implied right to you under any applicable patents, copyrights, trademarks, or trade secret information. Customer will not take any action that jeopardizes eM Client's proprietary rights or acquire any right in the Software, except the limited use rights specified in Section 3. eM Client will own all rights in any copy, translation, modification, adaptation or derivation of the Software, including any improvement or development thereof. Customer will obtain, at eM Client's or its authorized representative's request, the execution of any instrument that may be appropriate to assign these rights to eM Client.
8. LIMITED WARRANTIES:
a) Warranty: eM Client warrants to Customer that during the first 30 days after purchase of the Software (i) the Software will conform to eM Client's published specifications in effect on the date of delivery and (ii) the Software will perform substantially as described in the accompanying Documentation. eM Client does not warrant that (i) the Software will satisfy or may be customized to satisfy all of Customer's requirements or (ii) the use of the Software will be uninterrupted or error-free. Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent. This Agreement shall be read and construed subject to any such statutory provisions.
b) Remedies: In case of breach of warranty or other duty related to the quality of the Software, eM Client or its authorized representative will correct or replace any defective Software or, if not practicable, eM Client or its authorized representative will accept the return of the defective Software and refund to Customer the amount paid for the defective Software, less depreciation based on a 3-year straight line schedule. Customer acknowledges that this Paragraph sets forth Customer's exclusive remedy, and eM Client's and its authorized representatives' exclusive liability, for any breach of warranty or other duty related to the quality of the Products.
c) Exclusion of Other Warranties: THE SOFTWARE IS PROVIDED AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. eM Client does not warrant or assume responsibility for the accuracy or completeness of any information, text graphics, links or other items contained in the Software.
9. LIMITATION OF LIABILITY: IN NO EVENT SHALL eM CLIENT OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
a) No Consequential Damages: UNDER NO CIRCUMSTANCES WILL eM CLIENT OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR THOSE OF CUSTOMER'S (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SOFTWARE, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY EM CLIENT OR ITS AUTHORIZED REPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.
10. INDEMNITY: You shall indemnify, hold harmless, and defend eM Client, and its suppliers from and against any claims or lawsuits, including attorney's fees, that arise or result from your distribution and/or dissemination of the Software. eM Client shall have no indemnity obligation to Customer if the patent, copyright or trade secret infringement claim results from (i) a correction or modification of the Product not provided by eM Client or its authorized representative, (ii) the failure to promptly install an Update or (iii) the combination of the Product with other non-client software.
a) Confidentiality: Customer acknowledges that the Software incorporates confidential and proprietary information developed or acquired by or licensed to eM Client. Customer will take all reasonable precautions necessary to safeguard the confidentiality of the Software, including (i) those taken by Customer to protect Customer's own confidential information and (ii) those which eM Client or its authorized representative may reasonably request from time to time. Customer will not allow the removal or defacement of any confidentiality or proprietary notice placed on the Software. The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature.
b) Disclosure: If an unauthorized use or disclosure occurs within Customer's enterprise, Customer will immediately notify eM Client or its authorized representative and take, at Customer's expense, all steps which may be available to recover the Software and to prevent their subsequent unauthorized use or dissemination.
12. TERMINATION: Customer may terminate this Agreement, without right to refund, by notifying eM Client of such termination. eM Client may terminate this Agreement at will, or at any time if you violate its terms. Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (i) purge the Software and any related Updates from the Designated Hardware and all of Customer's other computer systems, storage media and other files, (ii) destroy the Software and all copies thereof and (iii) deliver to eM Client an affidavit which certifies that Customer has complied with these termination obligations. eM Client may terminate this Agreement, without refund obligation, if Customer breaches this Agreement and fails to cure such breach to eM Client's satisfaction within 30 days of eM Client's demand for cure.
13. SOFTWARE DEFECTS: During the term of this Agreement, eM Client's sole obligation regarding Software defects shall be limited to repair of any program which prevents normal use of the System at no cost to Customer. Customer shall give eM Client prompt notice of any alleged Software defect. eM Client will make every effort to correct the program defect within 30 days. eM Client's obligations shall be waived in the event of (i) any problem with data on disk files or tapes/cds have been caused by deficiencies in Designated Hardware or Designated Hardware manufacturer Products, or by improper handling or use by Customer, or (ii) an unauthorized alteration or revision to the System by Customer or its employees.
14. LEGAL FEES AND ENFORCEABILITY: If any action at law or inequity is brought to enforce or interpret any of the provisions of this Agreement, the prevailing party shall be entitled to reasonable legal fees. In the event any provision of this Agreement is held by any court to be invalid, void, or unenforceable by notion of law or inequity, the remaining provisions shall continue in full force and effect.
15. APPLICABLE LAWS: Claims arising under this Agreement shall be governed by the laws of Czech Republic.
16. MISCELLANEOUS - Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without eM Client's prior approval. All notices or approvals required or permitted under this Agreement must be given in writing. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by eM Client. This Agreement will bind Customer's successors-in-interest.