AfterLogic Software License Agreement
1. IMPORTANT NOTICE.
YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU
DOWNLOAD, INSTALL OR USE AFTERLOGIC'S PROPRIETARY SOFTWARE AND RELATED
DOCUMENTATION (THE "LICENSED SOFTWARE") DISTRIBUTED UNDER THE TRADEMARK
OF MAILBEE AND/OR AFTERLOGIC. BY INSTALLING OR USING THE LICENSED
SOFTWARE, YOU AGREE TO BE BOUND BY THIS LICENSE AGREEMENT, AND ITS
TERMS SHALL BE BINDING WITH RESPECT TO YOUR USE OF THE LICENSED
SOFTWARE. IF YOU DO NOT AGREE TO THE FOLLOWING TERMS AND CONDITIONS, DO
NOT INSTALL OR USE THE SOFTWARE.
2. DEFINITIONS.
When used in this Agreement, "AfterLogic" means AfterLogic Corporation,
located in Newark, DE, USA, and the words "You" and "Your" mean the
party purchasing a license to use the Licensed Software under the terms
of this agreement.
"Licensed Software" means compiled Objects, Modules, License
Key and any and all updates thereto, together with all associated
documentation provided by AfterLogic or its authorized resellers.
Licensed Software also means uncompiled source code if such source code
is provided to You by AfterLogic.
"License Key" means a unique code provided by AfterLogic or
its authorized resellers which identifies You, as well as the license
type, and which unlocks or enables certain features of the Licensed
Software.
"Application" or "Your Application" means a software
application that You develop which incorporates all or parts of the
Licensed Software.
"Evaluation Trial Period" means a specified period of time
during which You may temporarily use the Licensed Software for
evaluation purposes only.
"Third Party Code" means compiled and/or source code of third
party software modules which may be distributed alongside Licensed
Software.
3. LICENSE GRANT.
The Cumulative License granted to You by AfterLogic is a combination of
the Base License Grant, described in section (3A) below, which is
common to every Licensed Software title covered by this agreement, and
one or more supplemental License Grant which covers the specific
product obtained by You from AfterLogic or its authorized resellers.
Four basic types of supplemental License Grants are described in
sections (3B) through (3E): Evaluation License, Developer License,
Computer License, Hosting Provider License. These four basic types are
hereby further defined and/or restricted as to the number of
developers, servers, locations and distribution method(s), depending on
the specific product(s) being licensed by You. The precise combination
of the Base License Grant and one or more supplemental License Grant(s)
obtained by You is identified by AfterLogic at the time of purchase or
most recent upgrade.
3A. BASE LICENSE GRANT.
In consideration of Your payment of applicable license fees and/or Your
acceptance of the terms of this Agreement, AfterLogic hereby grants to
You certain nonexclusive and nontransferable rights limited by the
terms of this Agreement. The Licensed Software is licensed (not sold)
to You, for use strictly under the terms of this Agreement, and
AfterLogic reserves all rights not expressly granted to You herein. If
You upgrade the Licensed Software to a higher-numbered version thereof
or to a comparable AfterLogic product, this license is terminated and
Your rights shall be limited to the license associated with the
upgraded product or version.
In addition, You acknowledge that the Licensed Software may
contain certain third party software components which are distributed
under the terms of their own licenses.
3B. EVALUATION LICENSE.
In order to facilitate an efficient evaluation process of the Licensed
Software by developers, AfterLogic may, at its discretion, provide
specially designed, temporary License Key(s) that are encoded with an
embedded expiration date. The License granted in conjunction with such
License Key(s) is considered temporary, and multiple developers may use
it for the sole purpose of evaluating the Licensed Software during a
specific Evaluation Trial Period. Licensed Evaluation Trial Software
contains mechanisms that inhibit its ability to function at a later
date. It is Your responsibility to ensure that the Applications You
create do not contain Licensed Evaluation Trial Software and that their
ability to function at a later date is not inhibited or diminished.
3C. DEVELOPER LICENSE.
The following terms and conditions contained in this section (3C) apply
to You ONLY if at the time of original purchase or most recent upgrade,
the License granted to You by AfterLogic was defined as "Developer
License". The specific license level selected by you at the time of
purchase or most recent upgrade determines whether the license applies
to (1) a single named developer, or (2) a team of named developers, for
example a “4 Developer Team,” or (3) a single site (facility or campus)
whereby an unlimited number of developers located within said site
(facility or campus) may be allowed access to the Licensed Software.
You are hereby granted a nonexclusive, royalty-free license
to integrate the Licensed Software into Your Applications and to
distribute such Licensed Software in connection with said Applications,
provided that (a) said Applications do not in any way compete with the
Licensed Software, or provide substantially the same functionality as
the Licensed Software, or expose the functionality of the Licensed
Software through a programmable interface; (b) each of Your
Applications developed using Licensed Software is substantially larger,
more complex, and contains a significantly wider range of functions as
compared to the Licensed Software; (c) each of Your Applications
developed using Licensed Software is designed for end users, rather
than for developers who would be able to build other software that
would compete with the Licensed Software, and (d) You do not permit
further distribution of the Licensed Software by Your end users.
You may embed the License Keys in the Applications You
distribute, provided that the following conditions are met: (a) each
such Application must be marked with a prominent copyright notice
bearing Your name as declared by You during purchase of the License;
(b) the License Key may not be embedded in any such Application or
distributed in any other manner that makes the License Key visible to
the end user, and (c) each such Application must include the following
comment in its source code within close proximity to each copy of an
embedded License Key: "This application utilizes a licensed copy of
AfterLogic software, copyright (c) 2002-2009, which is the property of
AfterLogic Corporation, www.afterlogic.com. All rights are reserved by
AfterLogic. Use of any objects outside of the context of this
application is a violation of United States and international copyright
laws and other applicable laws."
For each License Key provided to You by AfterLogic, depending
on the specific license level selected by you at the time of purchase
or most recent upgrade, You are granted a nonexclusive License to make
the Licensed Software and/or the License Key(s) available either to the
specified number of Your named developers or to an unlimited number of
Your developers located at a single site (facility or campus) as
indicated by AfterLogic and further explained below. Should either the
number of named developers or the number of sites with access to the
Licensed Software and/or the License Key(s) ever exceed the number
indicated at the time of original purchase or most recent upgrade, You
agree to inform AfterLogic of such change and to upgrade Your License
accordingly by paying an upgrade fee to AfterLogic in a timely manner.
"1 Developer License" which may also be referred to as
"Single Developer License" means that only one named individual
developer employed by You may be given access to the Licensed Software
and/or the License Key(s) for the sole purpose of developing and
maintaining Your Applications. For as long as this specific individual
developer is employed or engaged by You in any capacity whatsoever
whereby he or she may access the Licensed Software and/or the License
Key(s), no other developer may be given access to the Licensed Software
and/or the License Key(s). Should said individual developer leave Your
employ and cease any professional association with You, or otherwise
relinquish any and all access the Licensed Software and/or the License
Key(s), a new named individual developer may then take his or her place
and be given access to the Licensed Software and/or the License Key(s).
"Developer Team License" is equivalent to a specified number
of single developer licenses. For example a "4 Developers Team License"
is equivalent to 4 single developer licenses. The number of developers
in a team identifies the maximum number of the named individual
developers employed by You who may be given access to the Licensed
Software and/or the License Key(s) for the sole purpose of developing
and maintaining Your Applications. For as long as the allowed maximum
number of named individual developers are employed or engaged by You in
any capacity whatsoever whereby these named individual developers may
access the Licensed Software and/or the License Key(s), no other
developer may be given access to the Licensed Software and/or the
License Key(s). Should any single named individual developer leave Your
employ and cease any professional association with You, or otherwise
relinquish any and all access the Licensed Software and/or the License
Key(s), a new named individual developer may then take his or her place
and be given access to the Licensed Software and/or the License Key(s),
whereby the total number of said named developers would not exceed the
licensed team size.
"Unlimited Developer Site License" means that an unlimited
number of developers at one site (facility or campus) may be given
access to the Licensed Software and/or the License Key(s) for the sole
purpose of developing and maintaining Your Applications.
3D. COMPUTER LICENSE.
The following terms and conditions contained in this section (3D) apply
to You ONLY if at the time of original purchase or most recent upgrade,
the License granted to You by AfterLogic was defined as "Single
Computer License" or "Unlimited Computer License".
Important Note: Under the terms of the Computer License,
distribution of the Licensed Software or the related License Keys, in
any form whatsoever, is strictly prohibited. Furthermore, under the
Computer License the use of the Licensed Software may NOT be extended
by hosting providers to their hosting clients and/or subscribers.
Hosting providers and Internet Service Providers must select the
Hosting Provider License if any functionality of the Licensed Software
is to be made available, accessible or usable by their hosting clients
and/or subscribers.
You may embed the License Keys in other Applications
installed on the same physical server(s) provided that the following
conditions are met: (a) each such Application must be marked with a
prominent copyright notice bearing Your name as declared by You during
purchase of the License; (b) the License Key may not be embedded in any
such Application or stored in any other manner that makes the License
Key visible to the end user, and (c) each such Application must include
the following comment in its source code within close proximity to each
copy of an embedded License Key: "This application utilizes a licensed
copy of AfterLogic software, copyright (c) 2002-2009, which is the
property of AfterLogic Corporation, www.afterlogic.com. All rights are
reserved by AfterLogic. Use of any objects outside of the context of
this application is a violation of United States and international
copyright laws and other applicable laws."
"Single Computer License" means that You are granted a
license to install the Licensed Software on a single physical
production server, without limitation as to the number of central
processing units on the server, and on any number of development
workstations and servers which can only be used for testing and
development purposes.
"Unlimited Computer License" means that You are granted a
license to install the Licensed Software on any number of physical
servers maintained or owned by You, without limitation as to the number
of central processing units on each server.
3E. HOSTING PROVIDER LICENSE.
The following terms and conditions contained in this section (3E) apply
to You ONLY if at the time of original purchase or most recent upgrade,
the License granted to You by AfterLogic was defined as "Hosting
Provider License" which permits access to or use of shared server
installed instance(s) of the Licensed Software by third party users,
including hosting clients and/or Internet service subscribers.
Important Note: Under the terms of the Hosting Provider
License, distribution of the Licensed Software or the related License
Keys, in any form whatsoever, is strictly prohibited.
You are hereby granted a nonexclusive license to install the
Licensed Software on physical server(s) maintained or owned by You,
without limitation as to the number of central processing units on each
server. The specific license level selected by you at the time of
purchase or most recent upgrade determines the maximum number of
allowed shared server installed instances of the Licensed Software as
well as the maximum number of domain names that may be serviced by the
Licensed Software.
The License Key obtained by You as part of Your Hosting
Provider License may only be entered into the registry or config file
of the applicable physical server provided that the License Key may not
be stored in any manner that makes the License Key visible to the end
user.
Installation of the Licensed Software on any server,
accessible to your hosting clients and/or subscribers, in any manner,
which would make it physically possible for Your hosting clients,
subscribers, or any other individual not directly employed by Your
organization, to potentially migrate, reinstall, transfer or copy the
Licensed Software to any other server whatsoever would be considered
unauthorized distribution and is expressly prohibited under this
license.
In case any of Your hosting clients and/or subscribers
desires to use a dedicated installed server instance of the Licensed
Software, or to gain the type of access to the Licensed Software which
may potentially allow such client and/or subscriber to migrate,
reinstall, transfer or copy the Licensed Software to another server,
each such client and/or subscriber would be required to obtain a
separate software license from AfterLogic Corporation.
4. RESTRICTIONS ON USE AND TRANSFER.
You may not sublicense, rent, lease, assign or otherwise transfer the
Licensed Software or any of Your rights thereto, either in whole or in
part, to anyone else, except that You may, after obtaining written
permission from AfterLogic, permanently transfer the Licensed Software
in its entirety, provided You retain no copies of the Licensed Software
and the transferee agrees to the terms and conditions of this
Agreement. Use of the Licensed Software with a License Key obtained
from a source other than AfterLogic or its authorized resellers is
expressly and strictly forbidden. AfterLogic reserves the right to take
any and all actions that AfterLogic, in its sole discretion, deems
necessary to protect against, monitor and control the use of the
Licensed Software with illegal License Keys. You agree to ensure that
anyone who uses any portion of the Licensed Software provided to You
complies with the terms and conditions of this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS.
You acknowledge that the Licensed Software contains copyrighted
material, trade secrets, trademarks and other proprietary material of
AfterLogic ("Confidential Information"), and is protected under United
States and international copyright law and other applicable laws. You
may not engage in any unauthorized use or disclosure of any
Confidential Information. You agree that the source code of the
Licensed Software is confidential and proprietary to AfterLogic.
Accordingly, You may not copy the Licensed Software, or decompile,
disassemble, reverse engineer or create a derivative work based upon
the Licensed Software, or authorize anyone else to do so. You must
reproduce and maintain all copyright notices that are contained in the
Licensed Software on any copy thereof that You make or use.
6. TERM AND TERMINATION.
Except as otherwise provided in this Agreement, depending on the
specific license level selected by you at the time of purchase or most
recent upgrade, the term of the license granted herein is either
perpetual, or alternatively the license is periodic, valid for a
specific period of time, such as a month or a year. The license becomes
effective when You install or use the Licensed Software. You may
terminate this license at any time by destroying any and all copies of
the Licensed Software or by returning all such copies to AfterLogic.
This Agreement and the associated license for the Licensed Software
will terminate automatically and without provision of notice by
AfterLogic if You fail to comply with any of the terms or conditions of
this Agreement or if You cease permanent use of the Licensed Software,
for whatever reason. Upon termination of this Agreement for any reason,
You agree that You will destroy all copies of the Licensed Software or
return all such copies to AfterLogic. In addition to this sentence and
the previous sentence, Sections 4, 5 and 7-13 shall survive any
termination of this Agreement.
7. LIMITED WARRANTY.
AfterLogic warrants that the Licensed Software will perform
substantially in accordance with its accompanying documentation, when
operated in the execution environment specified in such documentation,
for the warranty period ending thirty (30) days following the date on
which You first install or first use the Licensed Software. This
limited warranty is void if failure of the Licensed Software to conform
to such warranty is caused in whole or in part by (a) any defect in any
hardware or other equipment used with the Licensed Software; (b) any
failure of any hardware or any other equipment used with the Licensed
Software to function in accordance with applicable manufacturer's
specifications for such items; (c) any alteration, modification or
enhancement of the Licensed Software by You or anyone other than
AfterLogic; (d) any failure by You or anyone else to follow
AfterLogic's instructions with respect to proper use of the Licensed
Software; or (e) improper use, abuse, accident, neglect or negligence
on the part of You or anyone other than AfterLogic. AfterLogic will not
be obligated to honor the limited warranty or provide any remedy
thereunder unless the Licensed Software is returned to AfterLogic along
with the original dated receipt. Any replacement Licensed Software will
be warranted for thirty (30) days following the date on which
AfterLogic provides it to You. You understand that no Licensed Software
updates or upgrades are included with this limited warranty and that
AfterLogic may update or revise the Licensed Software at any time and,
in so doing, incurs no obligation to furnish such updates or revisions
to You.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE LICENSED
SOFTWARE IS PROVIDED TO YOU "AS IS", AND AFTERLOGIC MAKES NO EXPRESS OR
IMPLIED WARRANTIES WHATSOEVER WITH RESPECT TO ITS FUNCTIONALITY,
CONDITION, PERFORMANCE, OPERABILITY OR USE. WITHOUT LIMITING THE
FOREGOING, AFTERLOGIC DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU
SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY
FROM ONE JURISDICTION TO ANOTHER.
8. LIMITATIONS OF LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING LIMITED
WARRANTY SHALL BE, AT AFTERLOGIC'S OPTION, EITHER (A) REPAIR OR
REPLACEMENT OF THE LICENSED SOFTWARE SO THAT IT CONFORMS TO THE
FOREGOING LIMITED WARRANTY, OR (B) REFUND OF THE FEE THAT YOU PAID TO
LICENSE THE LICENSED SOFTWARE. IN NO EVENT SHALL AFTERLOGIC BE LIABLE
FOR ANY DAMAGES OF ANY TYPE, WHETHER DIRECT OR INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST
REVENUES, LOST PROFITS, LOSSES RESULTING FROM BUSINESS INTERRUPTION OR
LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY UNDER
WHICH SUCH LIABILITY MAY BE ASSERTED, EVEN IF AFTERLOGIC HAS BEEN
ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. AFTERLOGIC
SHALL HAVE NO LIABILITY WITH RESPECT TO ANY DATA THAT IS READ,
ACCESSED, STORED OR PROCESSED WITH THE LICENSED SOFTWARE, OR FOR THE
COSTS OF RECOVERING ANY SUCH DATA. IN NO EVENT SHALL AFTERLOGIC'S
MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES
PAID OR PAYABLE BY YOU TO LICENSE THE LICENSED SOFTWARE. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
9. INDEMNIFICATION.
You agree to defend, indemnify, and hold AfterLogic and all of its
employees, agents, representatives, directors, officers, partners,
shareholders, attorneys, predecessors, successors, and assigns harmless
from and against any and all claims, proceedings, damages, injuries,
liabilities, losses, costs, and expenses (including reasonable
attorneys' fees and litigation expenses), relating to or arising from
Your use of the Licensed Software, or any breach of this Agreement,
except to the extent such claim relates to or arises from a violation
by AfterLogic of any third party copyright, trademark, trade secret or
other intellectual property right.
10. EXPORT.
You agree that You will not export or transmit the Licensed Software or
any Applications, directly or indirectly, to any restricted countries
or in any manner that would violate United States laws and regulations
as shall from time to time govern the license and delivery of
technology abroad by persons subject to the jurisdiction of the United
States government, including the Export Administration Act of 1979, as
amended, and any applicable laws or regulations issued thereafter.
11. U.S. GOVERNMENT RESTRICTED RIGHTS.
If You are licensing the Licensed Software on behalf of the U.S.
Government or any of its agencies ("Government"), the use, duplication,
reproduction, release, modification, disclosure or transfer of the
Licensed Software by the Government is subject to restricted rights in
accordance with Federal Acquisition Regulation ("FAR") 12.212 for
civilian agencies and Defense Federal Acquisition Regulation Supplement
("DFARS") 227.7202 for military agencies. The Licensed Software is
commercial. Use of the Licensed Software by the Government is further
restricted in accordance with the terms and conditions of this
Agreement.
12. MISCELLANEOUS.
If any provision of this Agreement is held to be invalid or
unenforceable under any circumstances, its application in any other
circumstances and the remaining provisions of this Agreement shall not
be affected. No waiver of any right under this Agreement shall be
effective unless given in writing by an authorized representative of
AfterLogic. No waiver by AfterLogic of any right shall be deemed to be
a waiver of any other right of AfterLogic arising under this Agreement.
This Agreement is solely between You and AfterLogic and shall not be
construed to create any third party beneficiary rights in any other
individual, partnership, corporation or other entity. This Agreement
shall be governed by and interpreted in accordance with the laws of the
State of New York, without regard to its provisions governing conflicts
of law. Any and all disputes between You and AfterLogic pertaining to
this Agreement shall be submitted to one arbitrator in binding
arbitration within ten miles of New York City, New York in accordance
with the Commercial Rules of the American Arbitration Association
("AAA"). The arbitrator shall be experienced in computer consulting,
the development of custom software, the sale of packaged software, or
related services. If You and AfterLogic do not agree on an arbitrator
within sixty (60) days of the institution of the arbitration, the
arbitrator shall be chose by AAA. Evidence and argument may be
presented in person or by telephone, fax, postal mail, electronic mail,
and other methods of communication approved by the arbitrator. The
prevailing party in such proceeding shall be entitled to recover its
actually incurred costs, including reasonable attorney's fees,
arbitration and court costs. All hearings shall be held and a written
arbitration award issued within one-hundred eighty (180) days of the
date on which the arbitrator is appointed. Judgment on the award shall
be final and binding and may be entered in any court of competent
jurisdiction.
13. ENTIRE AGREEMENT.
YOU AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN YOU AND AFTERLOGIC, AND THAT IT SUPERSEDES ANY
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER
COMMUNICATIONS RELATING TO THE LICENSED SOFTWARE AND THE SUBJECT MATTER
HEREOF. AFTERLOGIC SHALL NOT BE BOUND BY ANY PROVISION OF ANY PURCHASE
ORDER, RECEIPT, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHERWISE,
OR BY ANY AGREEMENT BETWEEN YOU AND ANY OTHER PARTY, UNLESS AFTERLOGIC
SPECIFICALLY AGREES TO SUCH PROVISION IN WRITING IN A FORM OF A LEGAL
CONTRACT, DATED AND SIGNED BY YOU AND BY AFTERLOGIC'S OFFICER OR
AUTHORIZED EMPLOYEE. NO VENDOR, DISTRIBUTOR, PROVIDER, RESELLER, OEM,
SALES REPRESENTATIVE, OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS
AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE REGARDING
THE LICENSED SOFTWARE WHICH IS DIFFERENT FROM THOSE SET FORTH IN THIS
AGREEMENT.
Should you have any questions or concerns regarding licensing options, please don't hesitate to contact us.