eM Client is a computer program which, as a result of creative intellectual activity of its
authors, is a work
protected by copyright; economic rights of the authors in such computer program.
eM Client hereby grants the Customer and the Customer hereby accepts from eM Client, an
indefinite,
non-exclusive, territorially unrestricted, non-sublicensable and non-transferable right to
use the Software (as
defined in Section 1 below) on the Designated Hardware (as defined in Section 3 below),
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 until you have carefully read
the following terms
and conditions.
By loading or using the Software, you agree to the terms and conditions of this End User License
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, whether embedded on disc, tape or other media
("Computer
Program"), (ii) the updates or revisions of the Computer Program or
Documentation that eM Client or
its authorized representative may offer to the Customer pursuant to Section 6
("Updates") and (iii) any
copy of the Computer Program or Updates. Nothing in this Agreement will entitle the Customer
to
receive source code of the Computer Program or Updates, in whole or in part
Documentation
"Documentation" means published user manuals and any other documentation
that eM Client or its
authorized representative makes generally available for the Software.
"Designated Hardware" means one (1) compatible hardware device. The Customer
may use the
Software only on the Designated Hardware while it possesses and operates the Designated
Hardware.
DESIGNATED HARDWARE
"Designated Hardware" means one (1) compatible hardware device. The Customer
may use the
Software only on the Designated Hardware while it possesses and operates the Designated
Hardware.
4. USE
4.1 The Customer may use the Software and/or Documentation only in and for Customer's own
internal
purposes and business operations. The 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.
Business operations means using the software with any account which is not used solely for
personal
use. For example, use of any account that includes a domain name (e.g. emclient.com) which
is
registered to a business (or any other organization including non-profit or government
organization)
that is in any relation with the customer is understood as business operations.
4.2 The Customer may copy and use the Software onto Customer's computers for use subject to
these
conditions:
-
4.2.1 The Customer may not copy, modify, rent, sell, distribute or transfer any part of
the
Software
except as provided in this Agreement, and agrees to prevent unauthorized copying of the
Software.
-
4.2.2 The Customer may not reverse engineer, decompile, or disassemble the Software.
-
4.2.3 The Customer may not sublicense or redistribute the Software.
-
4.2.4 The Software may contain the software and other property of third party suppliers
("Third
Party Software"), 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. The
use of such Third Party Software is subject to License terms determined by these third
parties. You may use such Third Party Software in accordance with license terms that
apply to
them and which are attached to them.
-
4.2.5 The Customer shall make reasonable efforts to discontinue use of the older version
of the
Software upon eM Client's release of an update, upgrade, or new version of the Software.
-
4.2.6 The Customer may not make any statement that the Software is certified, or that
its
performance is guaranteed, by eM Client.
4.3 The Customer may use the Software either (i) after inputting an "Activation Code"
obtained from eM
Client ("Activating") or (ii) during one-time initial try out period
("Demo Period").
4.4 Activation Code obtained from eM Client is designated either for (i) Commercial use
("Purchase") or (ii)
Non-commercial (free) use.
5. SUPPORT
5.1 The following terms and conditions shall apply (i) during the first year after the
Purchase (the "Initial
Support Term") and (ii) during each Additional Support Term (as defined below) that the
Customer has
purchased from eM Client or its authorized representative:
-
5.1.1 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 support during working hours via email or other forms of communication.
-
5.1.2 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 the Customer.
Upon expiration of any Additional Support Term, support will automatically renew for
another 12 month Additional Support Term, and eM Client will invoice the Customer unless
eM Client or its authorized representatives are notified by the Customer 60 days prior
to the
renewal date. If the Customer allows support to lapse, the Customer will not be entitled
to
subsequent support except at full fair market value. If the Customer would like to renew
the
support contract, a new contract will be executed.
6. Limitations of em Client for Free/non-commercial Use
6.1 The Software Activated using Non-commercial (free) Activation Code ("eM Client for
Free/Non-Commercial Use") may not be used for business operations.
6.2 Users of eM Client for Free/Non-Commercial Use are entitled to use only two (2) e-mail
accounts.
6.3 Users of eM Client for Free/Non-Commercial Use are entitled to use only community based
support
available at http://forum.emclient.com.
6.3 Users of eM Client for Free/Non-Commercial Use are entitled to use only community based
support
available at http://forum.emclient.com.
6.4 Users of eM Client for Free/Non-Commercial Use are not entitled to Support as described
in Section 5
7. MAINTENANCE
7.1 Maintenance Agreement: eM Client will provide maintenance for the Software provided that
the
Customer has purchased the relevant maintenance services. Maintenance includes version
upgrades
and product enhancements.
7.2 Program Enhancements and Updates: Unless expressly agreed between the parties otherwise,
eM
Client, or its authorized representative, shall provide the Customer during the Initial
Support Term and
each Additional Support Term, if any, at no additional charge, with upgrades and
enhancements to the
Purchased version of the Software. These may under the sole discretion of eM Client include
(i)
enhancements to the Software, (ii) Updates due to Designated Hardware manufacturers releases
(will be
available to the 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.
8. OWNERSHIP OF SOFTWARE AND COPYRIGHTS
Title to the Software and/or the Documentation and all copies thereof remain with eM Client
or its
suppliers. The Software and/or the Documentation is copyrighted and is protected applicable
copyright laws and international treaty provisions. The Customer shall not remove any
copyright notice
from the Software. The Customer agrees to prevent any unauthorized copying of the Software
and/or
the Documentation. Except as expressly provided herein, eM Client does not grant any express
or
implied right to the Customer under any applicable patents, copyrights, trademarks, trade
secret
information or any other similar intellectual property rights. The Customer will not take
any action that
jeopardizes eM Client's rights in the Software and/or Documentation or acquire any right in
the Software
and/or Documentation, except the limited use rights specified in Section 4. eM Client will
own all rights
in any copy, translation, modification, adaptation or derivation of the Software, including
any
improvement or development thereof. The 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.
9. LIMITED WARRANTIES
9.1 Warranty: eM Client warrants to the 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.
9.2 Remedies: In case of breach of Warranty, 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 the Customer the amount paid for
the
Software, less depreciation based on a 3-year straight line schedule. The 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
Software.
9.3 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.
10. SOFTWARE DEFECTS
During the term of this Agreement, eM Client's sole obligation regarding Software defects
shall be
limited to repair of any program defect which prevents normal use of the Software at no cost
to the
Customer. The 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, any third party hardware and/or software, or by
improper handling
or use by the Customer, or (ii) an unauthorized alteration or revision to the System by the
Customer or
its employees.
11. LIMITATION OF LIABILITY
11.1 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 eM
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 THE CUSTOMER. THE
CUSTOMER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO
JURISDICTION.
11.2 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 THE CUSTOMER FOR THE SPECIFIC
PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.
12. LIMITATION OF LIABILITY IF the Customer is A BUSINESS USER
12.1 The Customer acknowledge that the Software has not been developed to meet Customer's
individual
requirements, and that it is therefore Customer's responsibility to ensure that the
facilities and functions
of the Software as described in the Documentation meet Customer's requirements.
12.2 eM Client only supply the Software and Documentation for internal use by Customer's
business, and
unless expressly agreed between the parties otherwise the Customer agrees not to use the
Software or
Documentation for any re-sale purposes.
13. INDEMNITY
The Customer 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 Customer's
distribution and/or
dissemination of the Software. eM Client shall have no indemnity obligation to the 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.
14. CONFIDENTIALITY
14.1 Confidentiality: The Customer acknowledges that the Software and/or the Documentation
incorporate
confidential and proprietary information developed or acquired by or licensed to eM Client.
The
Customer will take all reasonable precautions necessary to safeguard the confidentiality of
the Software
and/or the Documentation, including (i) those taken by the 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. The Customer will not allow the removal or defacement of any
confidentiality
or proprietary notice placed on the Software and/or the Documentation. The placement of
copyright
notices on these items will not constitute publication or otherwise impair their
confidential nature.
14.2 Disclosure: If an unauthorized use or disclosure occurs within the Customer's
enterprise, the 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/or the Documentation and to prevent
their
subsequent unauthorized use or dissemination.
15. TERMINATION
The Customer may terminate this Agreement, without right to refund, by delivering a written
notification
to eM Client. The written notification shall be delivered to e-mail sales@emclient.com. eM
Client may
terminate this Agreement by delivering a written notification to the Customer to the e-mail
address, that
the Customer has entered when activating the Software, at will, or without refund
obligation, if the
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. In case of Free/Non-Commercial Use, eM Client may
terminate this
agreement at any time without specifying a reason. Upon the termination of this Agreement
for any
reason, all rights granted to the Customer hereunder will cease, and the Customer will
promptly (i) purge
the Software, the Documentation 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 the
Documentation and all copies thereof and (iii) deliver to eM Client an affidavit which
certifies that the
Customer has complied with these termination obligations. The following paragraphs shall
apply also
after the termination of this Agreement: 6, 8, 9, 10, 11, 12.
16. 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.
17. AUDIT
During the period of validity of this Agreement and for the period of three (3) years after
the termination
of this Agreement, eM Client may audit, upon reasonable notice to you, and at eM Client's
expense, your
compliance with this Agreement.
18. APPLICABLE LAWS
Claims arising under this Agreement shall be governed by the laws of Czech Republic. All
disputes,
controversy or claims, contractual as well as non-contractual, arising out of or in
connection with this
Agreement or the breach, termination or invalidity thereof (which the Parties fail to agree
upon by
negotiations), shall be finally settled by competent courts in the Czech Republic.
19. MISCELLANEOUS
19.1 Copyright, economic rights of the authors of such computer program alongside with all
other rights
consequent from this Agreement are exercised by eM Client s.r.o., a company with the
registered seat at
Thámova 18, Praha 8, postal code 186 00, Czech Republic, registered in Commercial Register
of the
Municipal Court in Prague, Reference No.: C 178930, Company ID: 248 36 940 ("eM
Client").
19.2 The Customer understands and consents that eM Client will receive and store (i) usage
information, (ii)
data related to validity of license based on the unique ID generated on the Designated
Hardware, (iii)
primary e-mail address being set up within the Software and (iv) information from
alphanumeric
identifiers (cookies) transferred to the Customer through the Customer's browser to enable
to keep track
of a life cycle of customers.
19.3 If eM Client has justified doubts about non-commercial use of software activated with
Free/Non-Commercial Use Activation key (as defined in 6.1), it may contact the customer at
the e-mail
address registered with his license or the e-mail address mentioned in 19.2 (iii) to resolve
the issue.
19.4 The 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.
19.5 This Agreement constitutes the entire agreement between the Customer and eM Client and
supersedes
all prior oral or written agreements concerning the subject matter of this Agreement. The
Customer
represents, that when entering this Agreement on behalf of another person or entity, the
Customer has
all necessary authority to enter into this Agreement and has the legal capacity to enter
into this
Agreement and bind such entity or person by this Agreement. The Customer and eM Client have
agreed that eM Client may change or modify this Agreement at any time. The Customer shall be
provided with the proposed amendment to this Agreement via e-mail address that the Customer
has
entered when activating the Software, at least one (1) month before the expected effective
date of the
amendment. The Customer may reject the proposed amendment and terminate the Agreement in
accordance to Clause 15 of this Agreement.