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END USER LICENSE AGREEMENT FOR MAILSHELL SOFTWARE.
IMPORTANT-READ CAREFULLY: This Mailshell End-User License Agreement ("EULA")
is a legal agreement between you (either an individual person or a single
legal entity, who will be referred to in this EULA as "You")
and Gozoom.com, Inc. d/b/a Mailshell Corporation ("Mailshell")
for the Mailshell software product that accompanies this EULA, including
any associated media, printed materials and electronic documentation (the
"Software Product"). The Software Product also includes any
software updates, add-on components, web services and/or supplements that
Mailshell may provide to You or make available to You after the date You
obtain Your initial copy of the Software Product to the extent that such
items are not accompanied by a separate license agreement or terms of
use. By installing, copying, downloading, accessing or otherwise using
the Software Product, You agree to be bound by the terms of this EULA.
If You do not agree to the terms of this EULA, do not install, access
or use the Software Product; instead, You should return it to Your place
of purchase for a full refund.
SOFTWARE PRODUCT LICENSE
The Software Product is protected by intellectual property laws and treaties.
The Software Product is licensed, not sold.
1. GRANT OF LICENSE. This Section of the EULA describes Your general
rights to install and use the Software Product. The license rights described
in this Section are subject to all other terms and conditions of this
EULA.
General License Grant to Install and Use Software Product. You may install
and use one copy of the Software Product on a single computer, device,
workstation, terminal, or other digital electronic or analog device ("Device").
You may make a second copy of the Software Product and install it on a
portable Device for the exclusive use of the person who is the primary
user of the first copy of the Software Product. A license for the Software
Product may not be shared.
Alternative License Grant for Storage/Network Use. As an alternative
to the rights granted in the previous section, You may install a copy
of the Software Product on one storage Device, such as a network server,
and allow individuals within Your business or enterprise to access and
use the Software Product from other Devices over a private network, provided
that You acquire and dedicate a license for the storage Device upon which
the Software Product is installed and each separate Device from which
the Software Product is accessed and used. A license for the Software
Product may not be used concurrently on different Devices.
General License Grant to Install and Use Subscription Product. The following
licensing terms apply to You instead of the license grants in the previous
two paragraphs if You licensed a subscription-based Software Product (a
"Subscription Product"). You may install one copy of the Subscription
Product on a single Device and use the Subscription Product for the term
of Your subscription. You may also exercise the additional license rights
described in the paragraphs below, but only for the term of Your subscription.
The initial subscription period begins on the date You first activate
Your copy of the Subscription Product and ends three hundred and sixty
five (365) days thereafter. You cannot use the Subscription Product after
Your subscription expires unless You renew or extend Your subscription.
By renewing or extending Your subscription, You will be entitled to continue
using the Subscription Product for a specified period of time beyond the
date when Your previous subscription would have otherwise ended. All the
terms and conditions of this EULA will continue to apply to Your use of
the Subscription Product during any subsequent renewal periods unless
otherwise specified. After the expiration of Your subscription, You can
continue to open, view and print any documents You created with the Subscription
Product.
Additional License Grant for Media Elements. The Software Product may
include certain photographs, clip art, animations, sounds, music and video
clips (together "Media Elements"). If so, the following terms
describe Your rights to the Media Elements:
- Except as specified in the next Section, You may use, copy and modify
the Media Elements and distribute copies of the Media Elements, along
with Your modifications, as part of Your software product(s) and service(s),
including Your web site(s).
- You are not licensed to do any of the following:
- You may not sell, license or distribute copies of the Media Elements
on a stand-alone basis or as part of any collection, product or service
where the primary value of the product or service are the Media Elements.
- You may not use or distribute any of the Media Elements that include
representations of identifiable individuals, governments, logos, initials,
emblems, trademarks, or entities for any commercial purposes or to express
or imply any endorsement or association with any product, service, entity,
or activity.
- You may not create obscene or scandalous works, as defined by federal
law at the time the work is created, using the Media Elements.
- You must indemnify, hold harmless, and defend Mailshell from and
against any claims or lawsuits, including attorneys' fees, that arise
from or result from the use or distribution of Media Elements as modified
by You.
- You must include a valid copyright notice on Your products and services
that include copies of the Media Elements.
- You may not permit third parties to distribute copies of the Media
Elements except as part of Your product or service.
Reservation of Rights. All rights not expressly granted are reserved
by Mailshell.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
Academic Edition Software. If the Software Product is identified as "Academic
Edition" or "AE," You must be a "Qualified Educational
User" to use the Software Product. If You are not a Qualified Educational
User, You have no rights under this EULA. To determine whether You are
a Qualified Educational User, please contact the Mailshell/695 Fifth St.
#3/San Francisco, CA 94107 or the Mailshell subsidiary serving Your country.
Mandatory Activation. You may not be able to exercise Your rights to
the Software Product under this EULA after a finite number of product
launches unless You activate Your copy of the Software Product in the
manner described during the launch sequence.
Copy Protection. The Software Product may include copy protection technology
to prevent the unauthorized copying of the Software Product or may require
original media for use of the Software Product on the Device. It is illegal
to make unauthorized copies of the Software Product or to circumvent any
copy protection technology included in the Software Product.
Not for Resale Software. If the Software Product is labeled "Not
For Resale" or "NFR," then, notwithstanding other sections
of this EULA, Your use of the Software Product is limited to use for demonstration,
test, or evaluation purposes and You may not resell, or otherwise transfer
for value, the Software Product.
Limitations on Reverse Engineering, Decompilation, and Disassembly. You
may not reverse engineer, decompile, or disassemble the Software Product,
except and only to the extent that such activity is expressly permitted
by applicable law notwithstanding this limitation.
Separation of Component Parts. The Software Product is licensed as a
single product. Its component parts may not be separated for use on more
than one Device unless expressly permitted by this EULA.
Trademarks. This EULA does not grant You any rights in connection with
any trademarks or service marks of Mailshell.
No rental, leasing or commercial hosting. You may not rent, lease, lend
or provide commercial hosting services to third parties with the Software
Product.
Support Services. Mailshell may provide You with support services related
to the Software Product ("Support Services"). Use of Support
Services is governed by the Mailshell policies and programs described
in the user manual, in "online" documentation, or in other Mailshell-provided
materials. Any supplemental software code provided to You as part of the
Support Services are considered part of the Software Product and subject
to the terms and conditions of this EULA. You acknowledge and agree that
Mailshell may use technical information You provide to Mailshell as part
of the Support Services for its business purposes, including for product
support and development. Mailshell will not utilize such technical information
in a form that personally identifies You.
Software Transfer. Except as specified in this Section, the initial licensee
of the Software Product may make a one-time permanent transfer of this
EULA and Software Product only directly to an end user. This transfer
must include all of the Software Product (including all component parts,
the media and printed materials, any upgrades, and this EULA). Such transfer
may not be by way of consignment or any other indirect transfer. The transferee
of such one-time transfer must agree to comply with the terms of this
EULA, including the obligation not to further transfer this EULA and Software
Product. [Subscription Products are non-transferable.]
Termination. Without prejudice to any other rights, Mailshell may terminate
this EULA if You fail to comply with the terms and conditions of this
EULA. In such event, You must destroy all copies of the Software Product
and all of its component parts.
3. UPGRADES.
Standard Software Product. If the Software Product is labeled as an upgrade,
You must be properly licensed to use a product identified by Mailshell
as being eligible for the upgrade in order to use the Software Product.
A Software Product labeled as an upgrade replaces or supplements (and
may disable) the product that formed the basis for Your eligibility for
the upgrade. You may use the resulting upgraded product only in accordance
with the terms of this EULA. If the Software Product is an upgrade of
a component of a package of software programs that You licensed as a single
product, the Software Product may be used and transferred only as part
of that single product package and may not be separated for use on more
than one Device.
Subscription Based Software Product. The following terms apply to You
instead of the terms in the previous paragraph if You licensed a Subscription
Product. If Mailshell releases any upgrades or new versions of the Subscription
Product during the term of Your subscription, You will be entitled to
receive a copy of such upgrade(s) or new version(s) at no additional cost,
except for any applicable connection charges, taxes, duties and shipping
costs if You select fulfillment by mail. Such upgrades shall be considered
part of the Subscription Product and subject to all of the terms and conditions
of this EULA unless otherwise indicated in any license agreement that
accompanies such upgrade or new version.
4. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property
rights in and to the Software Product (including but not limited to any
images, photographs, animations, video, audio, music, text, and "applets"
incorporated into the Software Product), the accompanying printed materials,
and any copies of the Software Product are owned by Mailshell or its suppliers.
All title and intellectual property rights in and to the content that
is not contained in the Software Product, but may be accessed through
use of the Software Product, is the property of the respective content
owners and may be protected by applicable copyright or other intellectual
property laws and treaties. This EULA grants You no rights to use such
content. If this Software Product contains documentation that is provided
only in electronic form, you may print one copy of such electronic documentation.
You may not copy the printed materials accompanying the Software Product.
5. BACKUP COPY. After installation of one copy of the Software Product
pursuant to this EULA, you may keep the original media on which the Software
Product was provided by Mailshell solely for backup or archival purposes.
If the original media is required to use the Software Product on the Device,
you may make one copy of the Software Product solely for backup or archival
purposes. Except as expressly provided in this EULA, you may not otherwise
make copies of the Software Product or the printed materials accompanying
the Software Product.
6. U.S. GOVERNMENT LICENSE RIGHTS. All Software Product provided to the
U.S. Government pursuant to solicitations issued on or after December
1, 1995 is provided with the commercial license rights and restrictions
described elsewhere herein. All Software Product provided to the U.S.
Government pursuant to solicitations issued prior to December 1, 1995
is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14
(JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
7. EXPORT RESTRICTIONS. You acknowledge that the Software Product is
of U.S. origin. You agree to comply with all applicable international
and national laws that apply to the Software Product, including the U.S.
Export Administration Regulations, as well as end-user, end-use and destination
restrictions issued by U.S. and other governments.
8. APPLICABLE LAW.
If you acquired this Software Product in the United States, this EULA
is governed by the laws of the State of California.
If you acquired this Software Product in Canada, unless expressly prohibited
by local law, this EULA is governed by the laws in force in the Province
of Ontario, Canada; and, in respect of any dispute which may arise hereunder,
you consent to the jurisdiction of the federal and provincial courts sitting
in Toronto, Ontario. If this Software Product was acquired outside the
United States, then local law may apply.
Should you have any questions concerning this EULA, or if you desire
to contact Mailshell for any reason, please contact the Mailshell subsidiary
serving your country, or write: Mailshell/695 Fifth St. #3/San Francisco,
CA 94107.
9. LIMITED WARRANTY
LIMITED WARRANTY FOR SOFTWARE PRODUCTS ACQUIRED IN THE US AND CANADA.
Mailshell warrants that the SOFTWARE PRODUCT will perform substantially
in accordance with the accompanying materials for a period of ninety (90)
days from the date of receipt.
If an implied warranty or condition is created by your state/jurisdiction
and federal or state/provincial law prohibits disclaimer of it, you also
have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED
DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS
DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION
OF ANY KIND. Some states/jurisdictions do not allow limitations on how
long an implied warranty or condition lasts, so the above limitation may
not apply to you.
Any supplements or updates to the SOFTWARE PRODUCT, including without
limitation, any (if any) service packs or hot fixes provided to you after
the expiration of the ninety (90) day Limited Warranty period are not
covered by any warranty or condition, express, implied or statutory.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive
remedy for any breach of this Limited Warranty is as set forth below.
Except for any refund elected by Mailshell, YOU ARE NOT ENTITLED TO ANY
DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software
Product does not meet Mailshell's Limited Warranty, and, to the maximum
extent allowed by applicable law, even if any remedy fails of its essential
purpose. The terms of Section [11] below ("Exclusion of Incidental,
Consequential and Certain Other Damages") are also incorporated into
this Limited Warranty. Some states/jurisdictions do not allow the exclusion
or limitation of incidental or consequential damages, so the above limitation
or exclusion may not apply to you. This Limited Warranty gives you specific
legal rights. You may have others which vary from state/jurisdiction to
state/jurisdiction.
YOUR EXCLUSIVE REMEDY. Mailshell's and its suppliers' entire liability
and your exclusive remedy shall be, at Mailshell's option from time to
time exercised subject to applicable law, (a) return of the price paid
(if any) for the Software Product, or (b) repair or replacement of the
Software Product, that does not meet this Limited Warranty and that is
returned to Mailshell with a copy of your receipt. You will receive the
remedy elected by Mailshell without charge, except that you are responsible
for any expenses you may incur (e.g. cost of shipping the Software Product
to Mailshell). This Limited Warranty is void if failure of the Software
Product has resulted from accident, abuse, misapplication, abnormal use
or a virus. Any replacement Software Product will be warranted for the
remainder of the original warranty period or thirty (30) days, whichever
is longer. Outside the United States or Canada, neither these remedies
nor any product support services offered by Mailshell are available without
proof of purchase from an authorized international source. To exercise
your remedy, contact: Mailshell, Attn. Mailshell/695 Fifth St. #3/San
Francisco, CA 94107, or the Mailshell subsidiary serving your country.
LIMITED WARRANTY FOR SOFTWARE PRODUCTS ACQUIRED OUTSIDE THE US AND CANADA.
FOR THE LIMITED WARRANTIES AND SPECIAL PROVISIONS PERTAINING TO YOUR PARTICULAR
JURISDICTION, PLEASE REFER TO YOUR WARRANTY BOOKLET INCLUDED WITH THIS
PACKAGE OR PROVIDED WITH THE SOFTWARE PRODUCT PRINTED MATERIALS.
10. DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY THAT APPEARS ABOVE
IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY
OTHER EXPRESS WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING.
EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, MAILSHELL AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SUPPORT
SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS
OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR
COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK
OF VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE,
AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE
IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION,
CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
11. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MAILSHELL
OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION,
FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY
INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR
ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY
WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, THE
PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER
OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF
THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT
OR BREACH OF WARRANTY OF MAILSHELL OR ANY SUPPLIER, AND EVEN IF MAILSHELL
OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES
THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE
LIABILITY OF MAILSHELL AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF
THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR
ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY MAILSHELL WITH RESPECT
TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS
AND DISCLAIMERS (INCLUDING SECTIONS [7, 8, AND 9] ABOVE) SHALL APPLY TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS
ITS ESSENTIAL PURPOSE.
13. ENTIRE AGREEMENT. This EULA (including any addendum or amendment
to this EULA which is included with the Software Product) is the entire
agreement between you and Mailshell relating to the Software Product and
the support services (if any) and they supersede all prior or contemporaneous
oral or written communications, proposals and representations with respect
to the Software Product or any other subject matter covered by this EULA.
To the extent the terms of any Mailshell policies or programs for support
services conflict with the terms of this EULA, the terms of this EULA
shall control.
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