AfterLogic Software License Agreement
AfterLogic Corporation
http://www.afterlogic.com
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.
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.
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 "Single Developer License" or "Unlimited
Developer License".
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 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) 2002-2008, 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, You are granted a
nonexclusive License to provide the Licensed Software and/or the License Key(s)
to the number of Your employee-developers as indicated by AfterLogic and
further explained below. Should the number of developers 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.
"Single Developer License" means that only one 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, 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, a new individual
developer may then take his or her place and be given access to the Licensed
Software and/or the License Key(s).
"Unlimited Developer License" means an unlimited number of developers at one
organization 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, the Computer License may NOT be extended by
hosting providers to their hosting clients and/or subscribers. Hosting 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) 2002-2008, 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."
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 multiple physical servers maintained or owned by You, without limitation as
to the number of central processing units on each server.
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 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, the term of the license granted
herein is perpetual and 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.