Hexamail End User License Agreement
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THE TERMS AND CONDITIONS OF A SIGNED SOFTWARE LICENSE AGREEMENT BETWEEN YOUR COMPANY ("LICENSEE") AND HEXAMAIL, INC. PROCEEDING WITH LOADING OR USING THE SOFTWARE CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THE SOFTWARE LICENSE AGREEMENT AND THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST IMMEDIATELY EXIT FROM, AND CEASE ALL USE OF, THIS SOFTWARE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
TERMS AND CONDITIONS
This is an agreement between you and Hexamail Ltd. ("Hexamail").
1. LICENSE GRANT. Subject to the terms of this Agreement and the signed Software License Agreement ("License Agreement"), Hexamail grants you a personal, non-transferable, non-sublicensable, non-exclusive license to use this software program ("Software"), in accordance with the documentation supplied by Hexamail. The Software shall only be used by the number of authorized users ("Authorized Users") specified in the License Agreement or purchase order if any, and only on the platforms specified in the License Agreement or purchase order if any ("Authorized Platforms").
2. OWNERSHIP. The Software, any accompanying printed materials and all copies of the Software and printed materials, are owned by Hexamail and are protected by copyright, trademark and trade secret laws and international treaty provisions. This Software is licensed and not sold.
3. LICENSEE RESPONSIBILITIES. You may not make any unauthorized copies of the Software, except that Licensee may either make one copy of the Software solely for backup or archival purposes or transfer the Software to a single hard disk provided Licensee keeps the original solely for backup or archival purposes. Licensee may assign only one Authorized User to use each Authorized User account set up by Hexamail. You may not allow anyone to use the Software with the Authorized User account assigned to you. You may not modify, rent, lease, sublicense or use the Software for service bureau purposes. You may not reverse engineer, decompile or disassemble the Software, except to the extent expressly permitted by applicable law.
4. FEES; PAYMENT. The license fees for the Software are based upon the number of Authorized Users and are set forth in the License Agreement or purchase order. All such license fees, shipping, taxes, duties and the like, shall be paid by Licensee.
5. UPGRADES; SUPPORT. From time to time Hexamail may release new versions of the Software which contain improvements. If Licensee purchases or otherwise receives an upgrade, this Agreement will be extended to include both the original version of the Software and the new version. Any support for the Software shall be provided only pursuant to a separate written support agreement with Hexamail and payment of any applicable fees therefor.
6. TERM. This Agreement will remain in effect unless it is terminated earlier by Hexamail due to (a) a breach by you of its terms or (b) a breach by Licensee of the License Agreement. Upon termination you will immediately cease all use of the Software, and destroy or return to Hexamail any and all printed materials and copies of the Software.
7. LIMITED WARRANTY. Hexamail warrants that, for a period of thirty (30) days after receipt by Licensee: (a) the Software will perform substantially in accordance with the accompanying printed materials and (b) the medium upon which the Software is provided shall be free from defects in material and workmanship under normal use. This warranty covers only problems reported to Hexamail during the warranty period.
8. LICENSEE REMEDIES. HEXAMAIL'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY WARRANTY OR LEGAL THEORY SHALL BE LIMITED TO REPLACEMENT OF THE SOFTWARE OR RETURN OF THE PRICE PAID.
9. NO OTHER WARRANTIES. HEXAMAIL DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, WITH RESPECT TO THE SOFTWARE, AND THE ACCOMPANYING PRINTED MATERIALS. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS." The performance of the Software varies with various manufacturers' equipment with which it is used. Hexamail does not warrant that the Software or the functions contained in the Software will meet your's or Licensee's requirements, operate without interruption or be error free.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL HEXAMAIL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR THEORY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF INFORMATION), ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF HEXAMAIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HEXAMAIL'S LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE.
11. NO ASSIGNMENT. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by you, and any such attempted assignment or transfer shall be void and without effect.
12. GOVERNMENT USE. If Licensee is a unit or agency of the government, or acquiring the Software with government funds, the software and documentation are provided subject to Hexamail's standard commercial license; provided, however, that any contracts with non-defense agencies subject to the FAR, the Government shall have the rights set forth in subparagraph (c) of FAR 52.227-19, "Commercial Computer Software-Restricted Rights," as applicable.
13. MISCELLANEOUS. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and, except for the License Agreement or any software license agreement entered into by the Hexamail and Licensee, supersedes any other Agreement relating to the Software. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to the conflict of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of
Goods. To the extent that EC law is applicable, the restriction on reverse engineering is limited to prohibit such activity to the maximum extent without violating the EC Directive on the legal protection on computer programs. The waiver by either party of a breach of this Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been effectively given: (i) immediately upon personal delivery or facsimile transmission to the parties to be notified, (ii) one (1) day after deposit with a commercial overnight courier with tracking capabilities, or (iii) three (3) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth above. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The parties agree that a material breach of this Agreement adversely affecting Hexamail's proprietary rights in the Software would cause irreparable injury to Hexamail for which monetary
damages would not be an adequate remedy and that Hexamail shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.