PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
This MDaemon Technologies End User License Agreement (the "Agreement") is a legal agreement between you, individually if you are agreeing to it in your own capacity, or if you are authorized to acquire the Software (defined below) on behalf of your company or another entity, between the entity for whose benefit you act (in either case, "You"), and MDaemon Technologies, Ltd. ("MDaemon Technologies") with a principal place of business at 4550 State Highway 360, Suite 100, Grapevine, TX 76051 (together the "Parties" and individually a "Party").
BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY INSTALLING, ACTIVATING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF, PRIOR TO INSTALLING, ACTIVATING OR USING THE SOFTWARE, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THIS SOFTWARE AND YOU SHOULD PROMPTLY RETURN THE SOFTWARE TO MDaemon Technologies, DELETE IT, OR DISABLE IT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT MDaemon Technologies AT SALES@HELP.MDAEMON.COM.
Unless otherwise set forth in the Documentation (defined below) for the applicable Software, and subject to the terms and conditions of this Agreement, You may use the Software without requiring a Registration Key (defined below) during the Evaluation Period (defined below). If You wish to continue using the Software following the expiration of the Evaluation Period, You must obtain, and where applicable, pay for a Registration Key. THIS AGREEMENT DOES NOT AFFECT YOUR MANDATORY STATUTORY RIGHTS APPLICABLE IN YOUR JURISDICTION, TO THE EXTENT THAT YOU MAY BE ENTITLED TO SUCH MANDATORY STATUTORY RIGHTS.
Unless the context requires otherwise, the defined terms in this Agreement shall have the meanings set out below (and where the context so admits the singular shall include the plural and vice versa).
"Registration Key" is the code that must be entered in the Software registration wizard in order to use the Software beyond the Evaluation Period.
"Authorized Users" means any of Your employees or dependent contractors to whom You give permission to administer Your use of the Software. This Agreement does not convey the right to have the Software hosted by a third party.
"Documentation" means the applicable installation guide or standard end user documentation prepared and supplied by MDaemon Technologies for the specific type and version of Software. Documentation is also available at www.altn.com/Support/Literature/ or by contacting MDaemon Technologies at email@example.com. For certainty, Documentation does not include any installation guide or end-user documentation that is prepared by any person other than by MDaemon Technologies or any modifications made to documentation made by any person other than MDaemon Technologies.
"Evaluation Period" means the period of thirty (30) consecutive days commencing with, and including, the day that You first install the Software.
"Software" means any of the MDaemon Technologies proprietary software (comprised of MDaemon Technologies proprietary: software, interfaces, content and data, that may or may not technically be considered software code; and Third Party Components), or a portion thereof, provided to You under this Agreement, in whatever form, medium or manner provided or subsequently installed or used and including all updates and upgrades thereto for which other terms and conditions are not provided. The term "Software" does not include any Third Party Software, whether or not the Third Party Software is distributed by MDaemon Technologies, or the Third Party Software accompanies, is provided with, or operates in conjunction with, the Software.
"Third Party Components" means software and interfaces licensed by MDaemon Technologies from a third party for incorporation into an MDaemon Technologies software product, and distributed as an integral part of that MDaemon Technologies product under an MDaemon Technologies brand but does not include Third Party Software.
"Third Party Hardware" means wireless handheld smartphone, computer, equipment, peripherals and any other hardware product that is not an MDaemon Technologies Product.
"Third Party Items" means Third Party Hardware, Third Party Software and Third Party Products.
"Third Party Products" means Third Party Hardware and Third Party Software and any other commercial products that are not MDaemon Technologies Products.
"Third Party Services" means services provided by a third party, including internet or mobile services and any website that is not operated by MDaemon Technologies.
"Third Party Software" means standalone software applications proprietary to a third party that are provided by MDaemon Technologies or its authorized distributors bundled with, or separately for use with, the Software.
"User Account" means a single email address.
The Software is licensed and not sold under this Agreement. Your license to use the Software is conditional upon payment of the license fees, including fees for the Registration Key, if any. Subject to the terms and conditions herein, this Agreement grants You a personal, revocable, non-exclusive, non-transferable license that permits You and Your Authorized Users, collectively:
(a) if You have purchased an Registration Key, to install and use a single copy of the Software, on a single computer to support the number of User Accounts corresponding to the fees paid to MDaemon Technologies or MDaemon Technologies' authorized distributor for the Software, including the Registration Key. Instructions on how to register the Software can be found in the Documentation and at www.altn.com; or
(b) if You have not purchased an Registration Key, to install a single copy of the Software on a single computer and, during the Evaluation Period, use the Software for the sole purpose of evaluating the suitability of the Software for Your internal or personal use.
If You do not obtain and use an Registration Key to register the Software prior to the expiry of the Evaluation Period, the Software will cease to function and the only part of the Software that will operate until You register the Software is the registration wizard required to do so.
If You are using the Software pursuant to Section 2(b) above, then the license rights set out above apply only for the Evaluation Period.
In all cases, the license(s) granted under this Agreement permit You and Your Authorized Users to use or allow the use of the Software only for Your own internal or personal purposes.
This Agreement and the licenses granted herein, do not imply any rights or entitlement to: (a) future upgrades or updates of the Software or Third Party Software; or (b) acquire any new or modified Third Party Service. Notwithstanding the foregoing, the Software may include functionality to automatically check for updates or upgrades to the Software. Unless You, or a third party with whom You have an agreement to provide Software or portions thereof to You, configures the Software to preclude the transmission or use of upgrades or updates to the Software or Third Party Software, You hereby agree that MDaemon Technologies may (but is not obligated to) make such updates or upgrades available to You from time-to-time. If MDaemon Technologies, either directly or through a distributor, makes any updates or upgrades to the Software available to You, such updates or upgrades shall be subject to the terms and conditions of this Agreement unless the Software is expressly provided to You under other, or additional terms and conditions, in which case, if You accept the associated terms and conditions or use the update or upgrade, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply.
You may not print, distribute or modify the Software, in whole or in part. Except to the extent that MDaemon Technologies is expressly precluded by law from prohibiting these activities, You may not copy, reproduce or in any other manner duplicate the Software, in whole or in part, except as authorized in this Agreement or in a separate written agreement between You and MDaemon Technologies. For the purposes of this provision "copy" or "reproduce" shall not include copying of statements and instructions of the Software that naturally occurs during normal program execution when used in accordance with and for the purposes described in the Documentation or in the course of making unmodified regular back-ups of the Software or of the computer or system on which the Software is installed, in accordance with industry standard business practices. You may not copy any Documentation or portion thereof unless specifically authorized in writing to do so by MDaemon Technologies. You may download a single copy of the Documentation from www.altn.com/Support/Literature/ solely for Your use under these terms and conditions and in conjunction with the use of the Software.
You are responsible for all activities with respect to Your use of the Software undertaken by You and Your Authorized Users and You will ensure that:
(a) You and Your Authorized Users only use the Software and any portion thereof, in accordance with this Agreement, all applicable laws and regulations, and the appropriate Documentation for the Software or portion thereof;
(b) You have the right and authority to enter into this Agreement, either on Your own behalf or on behalf of a company or other entity, or minor, and You are over the age of majority;
(c) Any information that is provided to MDaemon Technologies pursuant to this Agreement is true, accurate, current and complete;
(d) You and Your Authorized Users will not knowingly, after making such inquiries as a reasonable person in Your or Your Authorized User's position would undertake, use or permit others to use the Software or portion thereof in isolation or with any other software or data in a manner that in MDaemon Technologies' judgment, acting reasonably, interferes with, degrades or adversely affects any software, system, network or data used by any person including MDaemon Technologies or otherwise has a detrimental effect upon MDaemon Technologies or any of its affiliates, and You will immediately cease any such activity upon MDaemon Technologies delivering notice of same to You;
(e) Without limiting Section 3(d) above, no part of the Software will be used as a transport for the dissemination of bulk unsolicited commercial email (commonly referred to as "spam");
(f) You and Your Authorized Users will not use the Software, or any part thereof, to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any breach of privacy or infringement, violation or misappropriation of any intellectual property rights and/or other proprietary rights of any third party (including, without limitation, copying and sharing content for which You and Your Authorized Users do not have the rights to copy and share, or unlawfully circumventing any digital rights management protections);
(g) You and Your Authorized Users will not sell, rent, lease, sub-license, or transfer, or attempt to sell, rent, lease, sub-license, or transfer, the Software or any part thereof (including operating a service bureau or equivalent service using the Software) to any other person, without the prior express written permission of MDaemon Technologies; and
(h) You and Your Authorized Users will cooperate with MDaemon Technologies and provide information requested by MDaemon Technologies to assist MDaemon Technologies in investigating or determining whether there has been a breach of this Agreement and provide MDaemon Technologies or an MDaemon Technologies appointed independent auditor with access to the premises and computers where the Software is or has been used and any associated records. You hereby authorize MDaemon Technologies to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations; (ii) third parties in investigating acts in violation of this Agreement; and (iii) system administrators at Internet service providers, networks or computing facilities in order to enforce this Agreement. Such cooperation may include MDaemon Technologies disclosing Your or Your Authorized Users' username, IP address, or other personal information.
In connection with Your use of the Software, You may acquire or obtain access to, Third Party Items and Third Party Services. You are responsible for ensuring that the Third Party Items and Third Party Services (including, without limitation, computer systems, internet connectivity and cellular services) with which You choose to operate the Software meets MDaemon Technologies' minimum requirements, including, without limitation, the processing speed, memory and the availability of dedicated internet access required for the Software as set out in the Documentation, and that You and Your Authorized Users' use of such Third Party Items and/or Third Party Services with the Software is not in violation of any licenses, terms, conditions, laws, rules and/or regulations respecting the use of such Third Party Items and Third Party Services.
Without limiting the foregoing, the Software may include Third Party Components, and Third Party Software may be provided in conjunction with Software when originally shipped by MDaemon Technologies or may subsequently be transmitted, distributed or otherwise made available to You from time-to-time. Your use of the Third Party Software and Third Party Components (including any updates or upgrades thereto) may be subject to separate or additional terms and conditions. These separate or additional terms and conditions, if any, will be made available in a text file accompanying the Software and/or, in the case of Third Party Software, may be made available when You use or install the Third Party Software for the first time. With respect to Third Party Software provided to You by MDaemon Technologies, MDaemon Technologies is only able to provide such software with Your understanding, acknowledgment and agreement that such software is: (a) provided as a convenience to You only; and (b) if it is not accompanied by a separate software license, it is subject to the terms and conditions of this Agreement as though it were Software, except that in all cases it is provided by MDaemon Technologies "AS IS" and "AS AVAILABLE" with no express or implied conditions, endorsements, guarantees, representations or warranties. If You wish to obtain Third Party Software on other terms, You should acquire this Third Party Software directly from its suppliers. In no event shall such separate license agreements or additional terms and conditions between You and the supplier be binding on MDaemon Technologies or impose any additional obligations, or obligations inconsistent with the terms of this Agreement, upon MDaemon Technologies whatsoever. To the extent that any particular Third Party Component is covered by additional terms and conditions that provide You with rights to use, copy, distribute, or modify all or part of such Third Party Component broader than the rights afforded You under this Agreement for the Software then, solely to the extent You can exercise such broader rights without breaching the terms of this Agreement for the remainder of the Software, You obtain the benefit of such broader rights.
Neither You nor Your Authorized Users acquire hereby any ownership right, title or interest in or to any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright, database rights or rights in any confidential information or trade-secrets, in or relating to the Software or any part thereof. Neither You nor Your Authorized Users acquire any license rights in or related to the Software or any portion thereof, other than the rights expressly licensed to You under this Agreement or in another mutually agreed upon written agreement that You may have with MDaemon Technologies. Any rights not expressly granted herein are expressly reserved. For clarity, notwithstanding anything else in this Agreement, in no event shall the licenses granted in the Software herein extend, or be construed to extend, to the use of any Third Party Software either on a standalone basis or in conjunction with the Software, and, without limiting the foregoing, in no event shall the licenses granted hereunder be construed such that any supplier of such Third Party Software be able to successfully assert that use of such Third Party Software either in conjunction with all or a part of the Software or on a standalone basis are licensed under MDaemon Technologies' patents by virtue of the fact that the Software is licensed hereunder. The Software, including any copies You make of the Software, is only licensed, and not sold, to You, and the Software, all Documentation and any site(s) which allow You to access any services are protected by Canadian, U.S. and international copyright and patent laws and international treaty provisions. There are severe penalties, both civil and criminal, for intellectual property infringement. You agree that nothing in this Agreement shall adversely affect any rights and recourse to any remedies, including, without limitation, to injunctive relief, that MDaemon Technologies may have under any applicable laws relating to the protection of MDaemon Technologies' intellectual property or other proprietary rights.
(a) You acknowledge that the Software includes cryptographic technology that may be subject to export, import, and/or use controls by Government Authorities (as hereinafter defined) by way of law or regulation. You agree that the Software will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the Software are being exported or to which the Software are being imported (collectively, the "Government Authority(ies)"). Without limitation, You agree the Software will not be exported: (i) to countries subject to U.S. economic sanctions and embargoes and (ii) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items. If You have any questions regarding this Section, please contact MDaemon Technologies via firstname.lastname@example.org. You hereby represent that: (A) to the best of Your knowledge You are eligible to receive the Software under applicable law; (B) You will not use the Software in the development, production, handling, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or their missile delivery systems, or of materials or equipment that could be used in such weapons or their missile delivery systems, or resell or export to anyone or any entity involved in such activity; and (C) You will ensure that Authorized Users use the Software in accordance with the foregoing restrictions. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if You are any agency of the government of the United States of America, then Your rights in respect of the Software shall not exceed the rights provided under this Agreement, unless expressly agreed upon by MDaemon Technologies in a written agreement between You and MDaemon Technologies and signed by a Chief Operating Officer or Chief Executive Officer of MDaemon Technologies.
(b) You hereby agree to indemnify MDaemon Technologies, its affiliates and its suppliers from any claims, actions, liability or expenses (including reasonable lawyers' fees and costs) resulting from Your failure to act in accordance with the acknowledgements, agreements, and representations in this Section.
You acknowledge and agree that the Software was: (a) developed at considerable time and expense by MDaemon Technologies and/or its affiliates and their respective suppliers; and (b) that the Software, including the Registration Key, contains confidential information including the trade-secrets of MDaemon Technologies and its suppliers. This Agreement gives You no right to obtain from MDaemon Technologies or its distributors any source code for the Software, and, except to the extent that MDaemon Technologies is expressly precluded by law from prohibiting these activities, You agree that You will not alter, modify, adapt, create derivative works, translate, deface, or Reverse Engineer (defined below) the Software, including the Registration Key, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same. For the purpose of this Agreement, "Reverse Engineer" includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of "dumping of RAM/ROM or persistent storage", "cable or wireless link sniffing", or "black box" reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
This Agreement shall be effective upon Your agreeing to be bound by the terms of this Agreement (as described in the preamble above) and shall continue in effect unless terminated in accordance with the provisions set out herein.
(a) If You or Your Authorized Users breach this Agreement, MDaemon Technologies may, in addition to all other rights and remedies provided by this Agreement or by law, immediately terminate this Agreement. Where You have provided MDaemon Technologies with accurate contact information, MDaemon Technologies shall provide You with notice of termination.
(b) Without limiting the generality of the foregoing sentence, You will be deemed to be in breach of this Agreement and MDaemon Technologies will have the right to terminate this Agreement if:
(i) You fail to comply with or perform a term or condition herein;
(ii) You interfere with MDaemon Technologies' customer service or business operations or the services or operations of its suppliers; or
(iii) any monthly or other periodic fees or costs associated with Your use of the Software are not paid within thirty (30) days of their becoming due.
(c) In addition, MDaemon Technologies may terminate this Agreement without any liability whatsoever to You or Your Authorized Users if MDaemon Technologies is prevented from providing any portion or all of any Software, or any services made available through the Software, by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body.
(d) Nothing herein shall be construed to require MDaemon Technologies to seek a waiver of any such law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. MDaemon Technologies shall not have any liability to You or Your Authorized Users arising from or related to the termination of this Agreement in accordance with this Section.
Upon termination of this Agreement, however caused, or the free evaluation period for the Software expires, You will immediately discontinue all use of the Software (or item of Software for which the license has expired) and return all copies of such Software that are in Your possession or control. In the event of the termination of this Agreement by MDaemon Technologies pursuant to provisions of this Agreement, You shall pay to MDaemon Technologies all fees (including reasonable lawyers' fees and costs) and related expenses expended or incurred by MDaemon Technologies in the enforcement of its rights hereunder. Notwithstanding the foregoing, because of the nature of Software, it may be impossible to return the Software because the Software is installed on a desktop or server such that all You could return is a further reproduction of the Software. In such cases, please contact MDaemon Technologies via email@example.com for further instructions.
You shall defend, indemnify, and hold harmless MDaemon Technologies, MDaemon Technologies' affiliates, suppliers, successors, agents, authorized distributors and assigns and each of their directors, officers, employees and independent contractors (each a "MDaemon Technologies Indemnified Party") from any claims, damages, losses, costs or expenses (including, without limitation, reasonable lawyers' fees and costs) incurred by a MDaemon Technologies Indemnified Party arising from: (a) infringement of patents or other intellectual property or proprietary rights arising from combining with or using any software, system or service in connection with the Software or any portion thereof; (b) damages arising from Your breach of any of the following Sections of Agreement: "Use of the Software" (Section 3), "Software and Documentation License" (Section 2), "Intellectual Property" (Section 6), "Export, Import and Use Restrictions and U.S. Government Licenses" (Section 7), "Confidentiality and No Reverse Engineering" (Section 8); (c) any injury, death or property damage arising from Your or Your Authorized Users' negligence or misconduct in connection with Your or Your Authorized Users' use of the Software or any portion thereof; or (d) claims made by third parties against MDaemon Technologies arising from or related to Your or Your Authorized Users' use of the Software or any portion thereof (other than such claims that arise solely from the use of the Software contemplated by and strictly in accordance with the terms of this Agreement and the Documentation which specifically pertains to such version of the Software). No remedy herein conferred upon MDaemon Technologies is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative.
(a) If during the thirty (30) day period following Your purchase of an Registration Key (the "Warranty Period"), the Software as made available by MDaemon Technologies or any MDaemon Technologies authorized distributor is not capable of performing the functions described in the standard end user Documentation ("Specifications") when used as specified by MDaemon Technologies in the Documentation applicable to the specific type and version of the Software, MDaemon Technologies will, at its sole option and discretion, either make reasonable efforts to correct or provide You with a workaround for such problem (which fix or workaround may be provided to You at MDaemon Technologies' reasonable discretion in one of a variety of forms, including in the course of telephonic or email customer support provided to You, in a generally available software fix release, on MDaemon Technologies' web site or in any other form of which MDaemon Technologies advises You) or provide You with a refund for the one time fees paid by You for the applicable Software, including the Registration key, if You cease to use the Software and the media on which the Software was provided to You and all packaging related thereto is returned to MDaemon Technologies in accordance with Your normal warranty return mechanism (which may be through point of purchase) within the Warranty Period together with proof of purchase.
(b) Notwithstanding anything to the contrary in this Agreement, updates, and upgrades provided to You free of charge are provided "AS IS" and without warranty of any kind.
(c) Updates and upgrades, for which You have paid additional license fees, shall be subject to the warranty set out above for a period of thirty (30) days from the date that the upgrade for any Software is delivered to You.
(d) The above obligation will not apply if the failure of the Software to perform the functions described in the Specifications is due to: (i) use of the Software in a manner inconsistent with any of Your obligations set out in the Sections of this Agreement entitled, "Required Third Party Items" (Section 4), "Use of the Software" (Section 3), "Software and Documentation License" (Section 2), "Export, Import and Use Restrictions and U.S. Government Licenses" (Section 7) or "Confidentiality and No Reverse Engineering" (Section 8) or in a manner inconsistent with the instructions, specified by MDaemon Technologies in the Documentation applicable to the specific type and version of the Software; (ii) a malfunction or other problem related to any hardware, network, software or communication system other than the Software; or (iii) to any external causes affecting the Software, including the media upon which the Software is provided, such as accident, disaster, electrostatic discharge, fire, flood, lightning, water or wind, correction of errors attributable to software other than the Software, or defects due to repairs or modifications not authorized by MDaemon Technologies.
(e) There is no warranty on free Software or on Software during the Evaluation Period. If any item of such Software fails to operate in accordance with its Documentation within thirty (30) days following the date You install it, You may contact MDaemon Technologies and MDaemon Technologies shall identify the support, if any, that is available for such Software (which support may be provided to You at MDaemon Technologies' reasonable discretion in one of a variety of forms, including in the course of telephonic or email customer support provided to You, in a generally available software fix or release, on MDaemon Technologies' website or in any other form of which MDaemon Technologies advises You).
If You wish to purchase support from MDaemon Technologies, please contact MDaemon Technologies at 1-817-601-3222 (or such other location listed on http://www.altn.com/Support/) or an MDaemon Technologies authorized distributor.
THE LAW OF SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THESE EXCLUSIONS MAY NOT APPLY TO YOU.
(a) General Warranties.
(i) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
(ii) To the maximum extent permitted under applicable law, any implied warranties or conditions relating to the Software to the extent they cannot be excluded as set out above, but can be limited, are hereby limited to ninety (90) days from the date You first installed any portion of Software on any computer.
(b) Third Party Items and Third Party Services.
(i) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, THE THIRD PARTY SERVICES AND THIRD PARTY ITEMS ARE NOT UNDER THE CONTROL OF MDaemon Technologies, MDaemon Technologies DOES NOT ENDORSE ANY PARTICULAR THIRD PARTY ITEMS OR THIRD PARTY SERVICES, AND MDaemon Technologies HAS NO RESPONSIBILITY WHATSOEVER FOR YOUR SELECTION, USE, ACCESS, OR IMPLEMENTATION OF THE THIRD PARTY SERVICES OR THIRD PARTY ITEMS.
(ii) THE FOREGOING APPLIES REGARDLESS OF: (A) HOW YOU ACQUIRE OR OBTAIN ACCESS TO THIRD PARTY ITEMS AND/OR THIRD PARTY SERVICES, I.E. WHETHER INDEPENDENT OF, OR THROUGH MDaemon Technologies; OR (B) WHETHER ANY SUCH THIRD PARTY ITEMS OR THIRD PARTY SERVICES ARE REQUIRED IN ORDER TO USE ALL OR ANY PORTION OF THE SOFTWARE.
(iii) WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, ALL THIRD PARTY SERVICES AND THIRD PARTY ITEMS ARE PROVIDED BY MDaemon Technologies ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, AND MDaemon Technologies SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY THIRD PARTY CLAIMING BY OR THROUGH YOU, FOR ANY ISSUE RELATING TO THE THIRD PARTY SOFTWARE INCLUDING, WITHOUT LIMITATION: (A) THE ACCURACY, TRANSMISSION, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY ITEMS, OR THIRD PARTY SERVICES, OR OF ANY PORTION OF THE SOFTWARE THAT IS DESIGNED SOLELY TO ENABLE SUCH ACCESS; (B) THE PERFORMANCE OR NON-PERFORMANCE OF THE THIRD PARTY ITEMS, OR THIRD PARTY SERVICES; OR (C) THE INTEROPERABILITY OF THE THIRD PARTY SOFTWARE WITH ALL OR A PORTION OF THE SOFTWARE.
(iv) WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, YOU SPECIFICALLY AGREE THAT MDaemon Technologies IS NOT RESPONSIBLE OR LIABLE FOR, ANY VIRUSES, OR ANY THREATENING, DEFAMATORY, OBSCENE, TORTIOUS, OFFENSIVE OR ILLEGAL THIRD PARTY SERVICES, THIRD PARTY ITEMS OR FOR ANY THIRD PARTY ITEMS OR THIRD PARTY SERVICES OR THE TRANSMISSION THEREOF, THAT INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. YOUR RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY THIRD PARTY ITEMS, OR THIRD PARTY SERVICES, SHALL BE SOLELY AGAINST THE RELEVANT THIRD PARTIES.
(c) Mission Critical Applications. THE SOFTWARE AND ANY PART THEREOF, IS NOT SUITABLE FOR USE IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE FOREGOING, YOU REPRESENT AND WARRANT THAT IN THE USE OF THE SOFTWARE, YOU WILL MAINTAIN ADEQUATE DATA RECOVERY AND BACK-UP SYSTEMS, AND IN THE EVENT OF: (i) USE OR SERVICE INTERRUPTION; OR (ii) DIFFICULTIES OR ERRORS IN DATA TRANSMISSION; YOU AGREE TO IMMEDIATELY MITIGATE ANY AND ALL LOSSES AND DAMAGES AND REPORT SUCH ISSUES TO MDaemon Technologies.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SPECIFIC REMEDIES SET OUT IN THIS AGREEMENT, IN NO EVENT SHALL MDaemon Technologies BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF DAMAGES: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, FAILURE TO REALIZE ANY EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE SOFTWARE, DOWNTIME COSTS, LOSS OF THE USE OF THE SOFTWARE OR ANY PORTION THEREOF, COST OF SUBSTITUTE GOODS, COSTS OF COVER, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NON-PERFORMANCE OFTHE SOFTWARE, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF MDaemon Technologies HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) To the maximum extent permitted by applicable law, in no event shall the aggregate liability of MDaemon Technologies exceed the greater of: (i) the amount paid by You for the Software (or portion thereof), including the Registration Key, that gave rise to the claim; and (ii) five (5) United States dollars.
(c) To the maximum extent permitted by applicable law, notwithstanding anything else in this Agreement, to the extent MDaemon Technologies is liable to You, MDaemon Technologies shall only be liable for damages incurred during the period of such failure, delay or non-performance of the Software.
(d) Nothing in this Section limits MDaemon Technologies' liability to You in the event of: (i) death or personal injury to the extent resulting directly from MDaemon Technologies' negligence; or (ii) any intentional fraudulent act or intentional fraudulent omission of MDaemon Technologies.
(e) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY SHALL BE LIABLE TO THE OTHER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER WHETHER IN CONTRACT, TORT, OR OTHERWISE.
(f) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL: (i) APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION BY YOU INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, TORT, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY; (ii) SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN; (iii) NOT APPLY TO THE INDEMNITY OBLIGATIONS SET OUT HEREIN OR MISAPPROPRIATION OR INFRINGEMENT BY EITHER PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY OR A BREACH OF THE SECTIONS OF THIS AGREEMENT ENTITLED: "USE OF THE SOFTWARE" (SECTION 3), "SOFTWARE AND DOCUMENTATION LICENSE" (SECTION 2), "INTELLECTUAL PROPERTY" (SECTION 6), "EXPORT, IMPORT AND USE RESTRICTIONS AND U.S. GOVERNMENT LICENSES" (SECTION 7), AND "CONFIDENTIALITY AND NO REVERSE ENGINEERING" (SECTION 8); AND (iv) APPLY IN THE AGGREGATE, TO MDaemon Technologies OR ITS AFFILIATES, THEIR SUCCESSORS, ASSIGNS, AND AUTHORIZED MDaemon Technologies DISTRIBUTORS.
(g) IN NO EVENT SHALL ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER, SERVICE SUPPLIER, INDEPENDENT CONTRACTOR OF MDaemon Technologies HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT.
(h) YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS: (i) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (ii) MDaemon Technologies' ABILITY TO OFFER AND YOUR ABILITY TO LICENSE SOFTWARE UNDER THIS AGREEMENT WOULD BE IMPACTED.
You may provide feedback to MDaemon Technologies about the Software. Unless MDaemon Technologies otherwise agrees in writing, You hereby agree that MDaemon Technologies shall own all feedback, comments, suggestions, ideas, concepts and changes that You provide to MDaemon Technologies regarding the Software and all associated intellectual property rights (collectively the "Feedback") and You hereby assign to MDaemon Technologies all of Your right, title and interest thereto. You will not knowingly provide MDaemon Technologies any Feedback that is subject to third party intellectual property rights. You agree to cooperate fully with MDaemon Technologies with respect to signing further documents and doing such other acts as are reasonably requested by MDaemon Technologies to confirm that MDaemon Technologies owns the Feedback and to enable MDaemon Technologies to register and/or protect any associated intellectual property rights and/or confidential information.
MDaemon Technologies may assign this Agreement without notice to You. You shall not assign this Agreement in whole or in part without the prior written consent of MDaemon Technologies (such consent may be withheld or conditioned at MDaemon Technologies' discretion) and any assignment without MDaemon Technologies' prior written consent shall be null and void and of no effect. MDaemon Technologies may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractor or subcontractors or its subsidiaries or affiliates.
Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, postage prepaid, registered mail or its equivalent, return receipt requested, and addressed to You at the billing address supplied to MDaemon Technologies by You, and addressed to MDaemon Technologies, Ltd. at c/o 4550 State Highway 360, Suite 100, Grapevine, TX 76051, Attention: Legal. In addition to the foregoing, MDaemon Technologies may, at its option, give You any notice under this Agreement electronically. Electronic notice to You shall be deemed to have been duly given when transmitted to an email address furnished by You to MDaemon Technologies.
Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfil its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing non-performance of any obligation by either Party to make payment to the other Party under this Agreement.
(a) Third Party Beneficiaries. MDaemon Technologies' affiliates and MDaemon Technologies' suppliers and their respective directors, officers and employees thereof are intended third party beneficiaries for the purpose of the Sections of this Agreement entitled, "Limitation of Liability" (Section 16) and "Disclaimer" (Section 15). Except as otherwise specifically stated in this Section, the provisions herein are for the benefit of the Parties and not for any other person or entity.
(b) Waivers of Default. No Party is to be deemed to have waived or forfeited any right under this Agreement, whether on the basis of failure, delay or any other legal or equitable doctrine, unless such waiver is made in writing signed by an authorized signatory of the Party against whom the waiver is sought to be enforced. Waiver of any provision, or any breach of any provision, of this Agreement in one instance shall not constitute a waiver as to any other instance.
(c) Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this Agreement.
(d) Governing Law and Dispute Resolution. This Agreement is to be governed by and construed under the laws of the State of Texas, excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the Parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the Parties. The Parties, through their upper management level representatives, which if You are an individual, is You, shall meet within thirty (30) days of the dispute being referred to them, and if the Parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in Your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Tarrant County, Texas in accordance with the Commercial Rules of the American Arbitration Association (the "AAA Rules") and shall be heard by one arbitrator appointed in accordance with the AAA Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in Your jurisdiction, the arbitration shall be: (i) held in Your jurisdiction; (ii) settled by arbitration in accordance with the AAA Rules; and (iii) heard by one arbitrator appointed in accordance with the AAA Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each Party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the Parties, or involving any person but You, may be joined or combined together, without the prior written consent of MDaemon Technologies. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, MDaemon Technologies has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding: (i) amounts owed by You to MDaemon Technologies in connection with Your acquisition of the Software or any portion thereof, if applicable; and (ii) Your violation or threatened violation of the Sections of this Agreement entitled, "Use of the Software" (Section 3), "Software and Documentation License" (Section 2), "Intellectual Property" (Section 6), "Export, Import and Use Restrictions and U.S. Government Licenses" (Section 7), "Confidentiality and No Reverse Engineering" (Section 8) and "Effect of Termination" (Section 11). You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent, submit and attorn to the jurisdiction of the courts located in the County of Tarrant, Texas for any such claims arising from or related to this Agreement. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The Parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement.
(e) Severability. To the extent any section, clause, provision or sentence or part thereof ("Part") of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
(f) Language. If this Agreement is translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. Unless, and only to the extent, prohibited by law in Your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including, without limitation, any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.
(g) Inconsistency. If there is any inconsistency between this Agreement and any software license or end user agreement (other than this Agreement) provided in the packaging or accompanying materials of any portion of the Software, the provisions of this Agreement shall apply to the extent of the inconsistency. If there is any inconsistency between this Agreement and any software license or end user agreement provided in connection with any upgrades or updates to the Software, the provisions of such other license or end user agreements shall apply to the extent of the inconsistency.
(h) Entire Agreement. This Agreement (which for the purposes of any Addenda hereto, shall in relation to the subject matter of that Addenda, include the terms of the Addenda), constitute(s) the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between the Parties relating to the Software other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous provisions, understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and You acknowledge that You have not relied on any of the foregoing in agreeing to enter into this Agreement. This Agreement may be amended at any time upon mutual agreement by the Parties. Except to the extent that MDaemon Technologies is expressly precluded by applicable law, MDaemon Technologies further reserves the right to make changes to this Agreement on a prospective basis, either to reflect changes in or required by law (including without limitation changes to ensure the enforceability of this Agreement) or changes in business practices, by providing You with reasonable notice of the change either electronically (as contemplated by the Notice provision above) or by posting notice of the change at www.altn.com/Company/Policies/LegalNotice/ and You should regularly review that site for changes. If You continue to use the Software more than sixty (60) days after notice of the change has been given, then You shall be deemed to have accepted this change. If You have a concern about the change(s) please contact MDaemon Technologies at firstname.lastname@example.org within sixty (60) days after notice of the change(s) has been given to inquire as to Your options.
(i) Compliance With Laws. You will, at Your expense, obtain and maintain all licenses, registrations and approvals required by the government authorities or applicable law in Your jurisdiction for the execution and performance of this Agreement or any related license agreements. In particular and for the avoidance of doubt, You will comply with all applicable laws and regulations and will obtain any necessary license, registration and approval from competent government authorities for the importation and use of any Software that contains commercial encryption or other security function required by applicable law. You will provide MDaemon Technologies with the assurances and official documents that MDaemon Technologies periodically may request to verify Your compliance with this obligation.
IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT MDaemon Technologies C/O email@example.com