Parent MailArchiva Multitenant Distribution Agreement

Between Stimulus Software and Distributor

 
1. INTERPRETATION AND DEFINITIONS
 
1.1. In this agreement, unless inconsistent with or otherwise indicated by the context:
 
1.1.1. "StimulusSoft" is Stimulus Software (Pty) Ltd, a close corporation registered according to the laws of South Africa;
 
1.1.2. "Distributor" is the entity offering MailArchiva Tenant (MT) as a service.
 
1.1.3. "Parties" are StimulusSoft and Distributor;
 
1.1.4. "Downstream Agreement Terms" means the terms attached hereto as Schedule 1;
 
1.1.5. "Commencement Date" means the first day of the month in which this agreement was signed by the last Party to sign;
 
1.1.6. "Software" means the MailArchiva Multitenant (MT), including all Updates and Upgrades, but excluding MailArchiva On-Premise software and MailArchiva Cloud software;
 
1.1.7. "Updates" means all incremental enhancements and improvements to the Software that are signified by version number changes to the right of the decimal point, (for example, version 4.10, 4.20);
 
1.1.8. "Upgrades" means all new versions of the Software that include new major features and/or significantly improved functionality, and which are signified by version number changes to the left of the decimal point, (for example, version 5.0, 6.0);
 
1.1.9. "Copyright" means the copyright that subsists in the Software and Documentation;
 
1.1.12. "Tenant" means a virtual application of the Software, i.e. a virtual instance of the Software with its own configuration, mailboxes and archive;
 
1.1.13. "Trial Period" means, in respect of each Tenant, the period commencing on the date on which the Tenant was created and terminating on the last day of the calendar month in which such Tenant was created;
 
1.1.14. "Mailbox" means a unique address that from time to time is or was used for sending and receiving emails archived using the Software during the previous 12 month period, provided that domain aliases registered in the Software are not regarded as additional mailboxes, for example, jamie@stimulussoft.com and jamie@mailarchiva.com would be regarded as a single Mailbox where mailarchiva.com and stimulussoft.com are registered as domains for a tenant;
 
1.1.15. "End Customer" means a person that acquires a Tenant for normal business end use or personal use and not for resale or distribution;
 
1.1.16. "Reseller" means a third party that on licenses Software to End Customers;
 
1.1.17. "Territory" means European Union;
 
1.1.18. "Royalty Month" means a period starting and ending on the first and last day, respectively, of any calendar month;
 
1.1.19. "Prime" means 15% nacm;
 
1.1.20. “Concluded Downstream Agreements” is defined in clause 5.2; and
 
1.1.21. "Taxes" means: (i) VAT, GST or any similar tax; and (ii) withholdings tax where corresponding tax credits or rebates are not available to StimulusSoft.
 
1.2. Words in the singular number include the plural and vice versa.
 
1.3. Words importing any one gender include each of the other two genders.
 
1.4. The headings of the clauses are intended for convenience only and do not affect the interpretation of this agreement.
 
 
PREAMBLE
 
(i) StimulusSoft has developed the Software.
 
(ii) StimulusSoft wishes to grant Distributor the right to conclude Software licences with Resellers and End Customers.
 
(iii) The rights and obligations of the Parties and the manner in which Distributor may commercialise or use the Software is regulated by the terms and conditions of this agreement.
 
 
2. LICENSED RIGHTS
 
StimulusSoft hereby grants to Distributor within the Territory a non-transferable, non-exclusive licence and rights to conclude sub-licences with Resellers and End Customers that incorporate the Downstream Agreement Terms. Nothing in this agreement grants Distributor any rights in respect of MailArchiva On-Premise software or MailArchiva Cloud software.
 
 
3. TERM
 
3.1. This licence commences with effect from the Commencement Date and will remain in force unless terminated by either Party in accordance with the provisions set out in this agreement.
 
3.2. Either Party may terminate this agreement by giving the other Party at least three calendar month written notice of its intention to terminate.
 
 
4. DOWNLOADS
 
4.1. The Software is available at www.mailarchiva.com/downloads or contact support@mailarchiva.com. StimulusSoft may from time to time notify Distributor of new Updates and Upgrades, which Distributor will be entitled to download from the same address. No additional consideration will be payable by Distributor to StimulusSoft for such Updates or Upgrades.
 
4.2. Distributor will not be entitled to have access to or be supplied with the source code of the Software.
 
 
5. CONCLUSION OF DOWNSTREAM AGREEMENTS BY DISTRIBUTOR
 
5.1. All agreements relating to the Software that Distributor may conclude with Resellers and End Customers will incorporate the Downstream Agreement Terms. Any such agreement with Resellers or End Customers concluded by Distributor in breach of this clause 5.1 will be null and void ab initio.
 
5.2. Distributor shall within 5 business days following conclusion of any agreement relating to the Software with a Reseller or End Customer ("Concluded Downstream Agreements") send a signed copy of such agreement to StimulusSoft by email.
 
 
6. ROYALTIES
 
6.1. In consideration for the licensed rights, Distributor undertakes to pay StimulusSoft an monthly royalty amount agreed in writing between the Parties. The pricing is provided that:
 
(a) Mailboxes associated with a Tenant will not trigger a payment to StimulusSoft hereunder until expiry of the Trial Period; and
 
(b) the minimum amount payable to StimulusSoft in respect of each Tenant is a monthly amount equivalent to ten mailboxes.
 
6.2. StimulusSoft may in its sole discretion change the pricing in clause 6.1 by giving Distributor notice detailing the revised pricing. Such revised pricing will be effective as from the end of the calendar month in which such notice is received, or deemed to have been received by Distributor. It is anticipated that such pricing changes will occur about once per year.
 
6.3. If a Tenant is terminated after the Trial Period, Distributor shall communicate such termination to StimulusSoft and no corresponding payment to StimulusSoft will be payable hereunder in respect of the calendar month following the date of such communication to StimulusSoft.
 
6.4. Amounts payable for a Royalty Month will be calculated and paid by Distributor within 14 calendar days following the end of the Royalty Month.
 
6.5. Distributor shall: (i) deduct from royalties payable to StimulusSoft any withholdings taxes payable; (ii) make timely payment of such taxes to the relevant authorities; and (iii) within 14 calendar days of payment, provide StimulusSoft with documented proof of payment to the satisfaction of StimulusSoft.
 
6.6. Distributor shall make payment to StimulusSoft of all amounts due to StimulusSoft in terms of this agreement in the agreed currency and by credit card or electronic transfer into the following bank account:
 
Stimulus Software CC
Standard Bank of SA Ltd
Account no.: 200277944
Branch: Rosebank (007205)
Swift Code: SBZAZAJJ

or any other account that StimulusSoft may nominate by written notice to Distributor.
 
 
7. COMPLIANCE
 
Distributor shall use best efforts to ensure and procure compliance with the terms of all agreements relating to the Software that Distributor may conclude with Resellers and End Customers.
 
 
8. LIABILITY FOR INTEREST ON LATE PAYMENTS
 
8.1. All amounts which Distributor is required to pay to StimulusSoft in terms of this agreement and which are not paid on due date will bear interest at Prime.
 
8.2. Interest will be calculated on a daily basis in arrears from the due date of payment and will be compounded.
 
8.3. StimulusSoft's right to charge interest on outstanding amounts will not detract from any other rights that StimulusSoft may have in law or in terms of this agreement.
 
 
9. UNDERTAKINGS BY DISTRIBUTOR
 
9.1. Notwithstanding anything to the contrary contained in this agreement, Distributor undertakes not to:
 
9.1.1. modify, adapt, merge, translate, decompile, disassemble, or reverse engineer the Software;
 
9.1.2. convert the whole or any part of the Software from object code into source code;
 
9.1.3. use the Software or Documentation in any manner not authorised in terms of this agreement;
 
9.1.4. create the impression or state that it owns or developed the Software;
 
9.1.5. mashup the Software with other software; or
 
9.1.6. copy the Software and/or Documentation or to permit any person to do so, unless such copies are strictly necessary to exercise the rights granted to Distributor in terms of this agreement.
 
9.2. Notwithstanding anything to the contrary contained in this clause 9, Distributor is entitled to make one back-up copy of the Software solely for Distributor’s security, archival and recovery purposes.
 
9.3. Distributor acknowledges that all goodwill in the Software and related trademarks inure for the benefit of StimulusSoft, and insofar as may be required by law, Distributor hereby assigns to StimulusSoft all such goodwill that may in future exist, and in this regard undertakes, if required by StimulusSoft, to perform all acts that may be necessary (at StimulusSoft’s cost) to effect such assignment.
 
9.4. Distributor shall use MailArchiva branding and trademarks strictly as directed by StimulusSoft from time to time, and any change in the branding and use of MailArchiva trademarks will require StimulusSoft’s prior written consent.
 
 
10. INSPECTION
 
During the term of this agreement and for a period of 3 months following termination or cancellation of this agreement for any reason whatsoever, StimulusSoft or its representatives may at their own cost, upon 10 calendar days prior written notice to Distributor and under the supervision of Distributor, inspect the Distributor’s servers, files, computer processors, equipment, facilities and premises during normal working hours to verify Distributor’s compliance with the terms of this agreement and the legal use of the Software and Documentation. While conducting the inspection, StimulusSoft or its representatives shall be entitled to copy or retain any item that Distributor may possess in violation of this agreement.
 
 
11. INFRINGEMENT
 
11.1. If during the term of this agreement any infringement or illegal use of any aspect of the Copyright by any third party within the Territory should come to the attention of Distributor or should an attack be made or threatened against the validity or enforceability of any aspect of the Copyright within the Territory, then and in such event Distributor shall notify StimulusSoft of such infringement, illegal use or attack.
 
11.2. StimulusSoft shall have the right (without having the obligation), at its own option and expense, to proceed against any third party infringing or illegally using its Copyright and Distributor will co-operate fully with StimulusSoft in such proceedings.
 
 
12. WARRANTIES
 
12.1. StimulusSoft warrants that the Software will perform substantially in accordance with the Documentation and that the Documentation correctly describes the operation of the Software in all material respects.
 
12.2. The Software is supplied “as is” and StimulusSoft does not warrant that the Software is free of bugs, inadvertent errors, defects or malfunctions. If StimulusSoft is notified of any significant inherent defect or error in the Software during the term of this license, it will take all reasonable steps to correct any such defect or error within a reasonable time.
 
12.3. StimulusSoft does not warrant that Distributor’s, Resellers’ or End Customers’ systems have capacity or are adequate to use the Software. Distributor acknowledges that it has been provided with sufficient information regarding system requirements to use and sublicense the Software and Distributor has satisfied itself that Distributor’s systems are adequate for this purpose. StimulusSoft does not warrant that the Software will meet Distributor’s, Resellers’ or End Customers’ requirements or that the operation of the Software will be uninterrupted or error-free or that all errors in the Software can be corrected. Distributor agrees to use the Software at its own risk.
 
12.4. Distributor undertakes to inform StimulusSoft of any bugs, inadvertent errors, defects or malfunctions in respect of the Software as soon as reasonably possible after Distributor discovers or is informed of such fault or problem.
 
12.5. Notwithstanding anything to the contrary contained in this agreement, any liability of StimulusSoft arising out of this agreement will be limited to StimulusSoft rectifying, within a reasonable time and free of charge, any bugs, inadvertent errors or malfunctions in the Software. In no instance, will StimulusSoft be liable to restore or correct data.
 
12.6. The warranties contained in this warranties clause 12 are the Distributor’s sole warranties and are in place of all warranties, conditions or other terms expressed or implied by statute or otherwise, all of which are hereby excluded to the fullest extent permitted by law. This clause 12 also sets out the Distributor’s sole remedies for any breach of StimulusSoft’s warranties. All other warranties, conditions, representations, indemnities and guarantees with respect to the Software, and/or Documentation or related services and information, whether express or implied, arising by law, custom, prior oral or prior written statements by StimulusSoft (including its distributors) or otherwise (including, but not limited to, any warranty for merchantability or fitness for particular purpose) are hereby overridden, excluded and disclaimed by StimulusSoft and StimulusSoft will not be liable in respect of any related claims or damages howsoever arising. In particular, and without derogating from the generality of this clause 12.6, under no circumstances (except in the event of personal injury or death resulting from StimulusSoft’s negligence) will StimulusSoft, its members, directors, officers, employees, servants, contractors or agents be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, whatsoever, including, without limitation, such damages or lost profits based on claims of Distributor and/or user of the Software (including, but not limited to claims for loss of goodwill, use of money or use of such Software) arising out of loss of data; interruption of use or availability, failure or malfunction of the Software, telecommunication facilities or hardware; stoppages or other impairment of other assets; bugs, inadvertent errors, defects or malfunctions in the Software; breach or failure of express or implied warranties; breach of contract; misrepresentation; negligence and strict liability in delict.
 
The Software may malfunction and to prevent loss of data and emails, it is suggested that the data is backed-up regularly.
 
 
13. INDEMNIFICATION
 
13.1. Without derogating from other provisions in this agreement, Distributor shall procure that all users of the Software in terms of Concluded Downstream Agreements accept the limitation of liabilities detailed in clause 12. Distributor indemnifies StimulusSoft (including indemnification relating to legal fees) against any claim, action or proceedings instituted by such users, where such claim, action or proceedings arise from such users’ failure to accept the limitation of liabilities detailed in clause 12.
 
13.2. In addition to clause 13.1, Distributor indemnifies StimulusSoft and its directors, members, officers, employees, servants, contractors and agents against damage, cost or expense (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the Software that is based on Distributor’s conduct, action or inaction.
 
13.3. In the event that any claim is made successfully against StimulusSoft in respect of a corresponding Concluded Downstream Agreement, the liability of StimulusSoft is limited to an amount equal to the corresponding amounts paid to StimulusSoft in respect of such agreement.
 
 
14. SUPPORT AND UPGRADES
 
14.1. StimulusSoft’s technical support staff will endeavour to respond to any queries Distributor may have about the Software. For support, consult StimulusSoft’s web site at www.mailarchiva.com, or email StimulusSoft at support@mailarchiva.com.
 
14.2. StimulusSoft agrees to provide reasonable support and assistance to Distributor in developing familiarity with the Software insofar as is necessary for Distributor to exercise its licensed rights in terms of this agreement.
 
14.3. Distributor shall, at its own expense, be solely responsible for providing technical support (including, without limitation trouble-shooting) and training to its customers using the Software. Distributor shall use its best efforts to ensure that all questions from Distributor’s customers regarding the use or operation of the Software are addressed to and answered by Distributor. StimulusSoft may refer any questions received from Distributor’s customers to Distributor. StimulusSoft shall provide, at no additional cost, response back-up technical support to Distributor with information to answer customer’s questions as defined in Schedule 2.
 
14.4. StimulusSoft will at all times during the term of this licence provide Distributor with access to any Updates and Upgrades. All right, title and interest in such Updates and Upgrades will vest in StimulusSoft.
 
14.5. Apart from the obligations specifically detailed in this Support and Upgrades clause 14, StimulusSoft has no obligation to furnish Distributor with technical support unless separately agreed in writing between the Parties.
 
 
15. THIRD PARTY INFRINGEMENT CLAIMS
 
StimulusSoft does not warrant that the Software does not infringe the intellectual property of third parties or that the Software is compliant with all legal requirements (including, without limitation, statutes and regulations) that Distributor may operate under, and StimulusSoft does not assume any obligation to indemnify Distributor against any claims based on either infringement of intellectual property rights of third parties or non-compliance resulting from use of the Software.
 
 
 
16. LANGUAGE OF SOFTWARE AND DOCUMENTATION
 
The Software and Documentation shall be provided by StimulusSoft in English only, and Distributor will have no claim against StimulusSoft for a translated version of such Software or Documentation.
 
 
17. FORCE MAJEURE
 
In the event of force majeure, being unforeseeable events beyond the control of StimulusSoft and preventing StimulusSoft from meeting its obligations under this agreement, it is agreed that if notice of such situation is given by StimulusSoft within 2 weeks of the occurrence of force majeure, the contract obligations as far as effected by such event will be suspended for as long as the inability to perform owing to such situation continues.
 
18. CESSION, ASSIGNMENT AND SUBLICENSING
 
Apart from being entitled to grant sublicences to Resellers and End Customers strictly in conformity with this agreement, the rights and obligations of Distributor may not be ceded, assigned, let or otherwise disposed of in any manner whatsoever without the prior written consent of StimulusSoft.
 
19. RELATIONSHIP BETWEEN THE PARTIES
 
Nothing in this agreement will be construed so as to create or deem a partnership or a principal and agent relationship between the Parties, and neither Party will hold itself out in any manner which would indicate or imply any such relationship with the other. Furthermore, neither Party is entitled to bind the other, whether in contract or otherwise.
 
20. SURVIVAL
 
Clauses 8 (Interest), 9 (Undertakings), 10 (Inspection), 13 (Indemnification), and this clause 21 will survive termination or cancellation of this agreement for any reason whatsoever.
 
21. GOVERNING LAW
 
This agreement is governed in all respects by the laws of the Republic of South Africa.
 
22. CANCELLATION
 
Should a Party be in breach of any of the terms or conditions hereof and fail to remedy such breach within 14 calendar days of the receipt of notice, then the aggrieved Party will be entitled at such Party's option to institute proceedings immediately for enforcement of the terms of this agreement or, alternatively and without further notice, to declare this agreement cancelled all of which may be done without prejudice to any claim the aggrieved Party may have in law for damages arising from breach of contract or any other cause.
 
 
23. WHOLE AGREEMENT
 
23.1. This document (including the Schedules) constitutes the whole of the agreement (to the exclusion of all else) between the Parties relating to the subject matter hereof.
 
23.2. Subject to clause 6.2 (Pricing revision), no amendment, alteration, addition, variation or consensual cancellation of this document will be valid unless in writing and signed by the Parties.
 
 
24. WAIVER
 
24.1. No waiver of any of the terms or conditions of this agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same and any such waiver will be effective only in the specific instance and for the purpose given.
 
24.2. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
 
 
25. CHOSEN ADDRESS
 
Each Party chooses as its address for citation, service of legal processes, execution or any other purpose connected with this agreement, its address set out herein, which it is entitled to vary on notice.
 
 
26. NOTICES
 
26.1. All notices in terms of this agreement must be in writing addressed to the chosen address of the Party and sent by courier.
 
26.2. Couriered notices will be deemed to have been received on the tenth calendar day following dispatch by courier.
 
 
27. SEVERABILITY
 
In the event that any of the provisions of this agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which shall continue to be valid and enforceable.
 
 
Stimulussoft is deemed to have agreed to this agreement on the date the I AGREE button is clicked.
 

Schedule 1

DOWNSTREAM AGREEMENT TERMS

1. INTERPRETATION AND DEFINITIONS
 
In addition to the terms defined in Parent MailArchiva Multitenant Software Distribution Agreement, "Licensee" is a Reseller or an End Customer.
 
 
2. LICENSED RIGHTS
 
2.1. Distributor hereby grants to Licensee within the Territory a personal, non-transferable, non-exclusive sub-licence to use MailArchiva as a service provided the service is managed, hosted and controlled by Distributor.
 
3. TERM
 
Distributor may terminate this agreement by giving Licensee at least three calendar months written notice of its intention to terminate.
 
 
4. CONSEQUENCES OF TERMINATION
 
In addition, Licensee undertakes not to use or permit persons to use the Software or Documentation after termination of this agreement.
 
 
5. DOWNLOADS
 
5.1. The Software is available at www.mailarchiva.com/downloads or contact support@mailarchiva.com. StimulusSoft or Distributor may from time to time notify Licensee of new Updates and Upgrades, which Licensee will be entitled to download from the same address. No additional consideration will be payable by Licensee to Distributor or StimulusSoft for such Updates or Upgrades.
 
5.2. Licensee will not be entitled to have access to or be supplied with the source code of the Software.
 
 
6. UNDERTAKINGS BY LICENSEE
 
6.1. Notwithstanding anything to the contrary contained in this agreement, Licensee undertakes:
 
6.1.1. To use the Software only on servers managed or controlled by Distributor.
 
6.1.2. Not to:
 
6.1.2.1. modify, adapt, merge, translate, decompile, disassemble, or reverse engineer the Software;
 
6.1.2.2. convert the whole or any part of the Software from object code into source code;
 
6.1.2.3. use the Software or Documentation in an unauthorised manner;
 
6.1.2.4. create the impression or state that it owns or developed the Software;
 
6.1.2.5. mashup the Software with other software; or
 
6.1.2.6. copy the Software and/or Documentation or to permit any person to do so, unless such copies are strictly necessary to exercise the rights granted to Licensee.
 
6.2. Notwithstanding anything to the contrary contained herein, Licensee is entitled to make one back-up copy of the Software solely for Licensee’s security, archival and recovery purposes.
 
6.3. Licensee acknowledges that all goodwill in the Software and related trademarks inure for the benefit of StimulusSoft, and insofar as may be required by law, Licensee hereby assigns to StimulusSoft all such goodwill that may in future exist, and in this regard undertakes, if required by StimulusSoft, to perform all acts that may be necessary (at StimulusSoft’s cost) to effect such assignment.
 
6.4. Licensee shall use MailArchiva branding and trademarks strictly as directed by StimulusSoft from time to time, and any change in the branding and use of MailArchiva trademarks will require StimulusSoft’s prior written consent.
 
 
7. INSPECTION
 
During the term of this agreement and for a period of 3 months following termination or cancellation of this agreement for any reason whatsoever, Distributor or its representatives may at their own cost, upon 10 calendar days prior written notice to Licensee and under the supervision of Licensee, inspect the servers managed or controlled by Licensee, files, computer processors, equipment, facilities and the premises of Licensee during normal working hours to verify Licensee’s compliance with the terms of this agreement and the legal use of the Software and Documentation. While conducting the inspection, Distributor or its representatives shall be entitled to copy or retain any item that Licensee may possess in violation of this agreement.
 
 
8. INFRINGEMENT
 
8.1. If during the term of this agreement any infringement or illegal use of any aspect of the Copyright by any third party within the Territory should come to the attention of Licensee or should an attack be made or threatened against the validity or enforceability of any aspect of the Copyright within the Territory, then and in such event Licensee shall notify Distributor of such infringement, illegal use or attack.
 
8.2. StimulusSoft shall have the right (without having the obligation), at its own option and expense, to proceed against any third party infringing or illegally using its Copyright and Licensee will co-operate fully with Distributor and StimulusSoft in such proceedings.
 
 
9. WARRANTIES
 
9.1. Distributor warrants that the Software will perform substantially in accordance with the Documentation and that the Documentation correctly describes the operation of the Software in all material respects.
 
9.2. The Software is supplied “as is” and Distributor does not warrant that the Software is free of bugs, inadvertent errors, defects or malfunctions. If Distributor is notified of any significant inherent defect or error in the Software during the term of this licence, it will take all reasonable steps to correct any such defect or error within a reasonable time.
 
9.3. Distributor does not warrant that Licensee’s systems have capacity or are adequate to use the Software. Licensee acknowledges that it has been provided with sufficient information regarding system requirements to use the Software and Licensee has satisfied itself that Licensee’s systems are adequate for this purpose. Distributor does not warrant that the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free or that all errors in the Software can be corrected. Licensee agrees to use the Software at its own risk.
 
9.4. Licensee undertakes to inform Distributor of any bugs, inadvertent errors, defects or malfunctions in respect of the Software as soon as reasonably possible after Licensee discovers such fault or problem.
 
9.5. Notwithstanding anything to the contrary contained in this agreement, any liability of Distributor arising out of this agreement will be limited to Distributor rectifying, within a reasonable time and free of charge, any bugs, inadvertent errors or malfunctions in the Software. In no instance, will Distributor be liable to restore or correct data
 
9.6. The warranties contained in this warranties clause are Licensee’s sole warranties and are in place of all warranties, conditions or other terms expressed or implied by statute or otherwise, all of which are hereby excluded to the fullest extent permitted by law. This warranties clause also sets out Licensee’s sole remedies for any breach of Distributor’s warranties. All other warranties, conditions, representations, indemnities and guarantees with respect to the Software, and/or Documentation or related services and information, whether express or implied, arising by law, custom, prior oral or prior written statements by Distributor (including its distributors) or otherwise (including, but not limited to, any warranty for merchantability or fitness for particular purpose) are hereby overridden, excluded and disclaimed by Distributor and Distributor will not be liable in respect of any related claims or damages howsoever arising. In particular, and without derogating from the generality of this warranties subclause, under no circumstances (except in the event of personal injury or death resulting from Distributor’s negligence) will Distributor, its members, directors, officers, employees, servants, contractors or agents be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, whatsoever, including, without limitation, such damages or lost profits based on claims of Licensee and/or user of the Software (including, but not limited to claims for loss of goodwill, use of money or use of such Software) arising out of loss of data; interruption of use or availability, failure or malfunction of the Software, telecommunication facilities or hardware; stoppages or other impairment of other assets; bugs, inadvertent errors, defects or malfunctions in the Software; breach or failure of express or implied warranties; breach of contract; misrepresentation; negligence and strict liability in delict.
 
9.7. Licensee hereby holds StimulusSoft harmless and hereby indemnifies StimulusSoft from any claims based on use of the Software by Licensee or its customers and/or this agreement. Without derogating from the generality of the aforegoing, in no instance will Licensee have a claim against StimulusSoft where no such claim exists against Distributor.
 
The Software may malfunction and to prevent loss of data and emails, it is suggested that the data is backed-up regularly.
 
 
10. INDEMNIFICATION
 
10.1. Licensee shall procure that all users of the Software running on servers managed or controlled by Licensee accept the limitation of liabilities detailed in the warranties clause. Licensee indemnifies Distributor and StimulusSoft (including indemnification relating to legal fees) against any claim, action or proceedings instituted by users of the Software running on servers managed or controlled by Licensee, where such claim, action or proceedings arise from such user’s failure to accept the limitation of liabilities detailed in the warranties clause.
 
10.2. In addition to the preceding clause, Licensee indemnifies Distributor and StimulusSoft and its directors, officers, employees, servants, contractors and agents against damage, cost or expense (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the Software that is based on Licensee’s conduct, action or inaction.
 
10.3. In the event that any claim is made successfully against Distributor and/or StimulusSoft, the liability of StimulusSoft and Distributor is limited to an amount equal to the licence fee payable in terms of this agreement.
 
 
11. SUPPORT AND UPGRADES
 
11.1. Distributor’s technical support staff will endeavour to respond to any queries Licensee may have about the Software. For support, consult StimulusSoft’s web site at www.mailarchiva.com, or email Distributor at rcasey@theemaillaundry.com.
 
11.2. Distributor agrees to provide reasonable support and assistance to Licensee in developing familiarity with the Software insofar as is necessary for Licensee to exercise its licensed rights in terms of this agreement.
 
11.3. Apart from the obligations specifically detailed in this Support and Upgrades clause 13, neither StimulusSoft nor Distributor has no obligation to furnish Licensee with technical support unless separately agreed in writing between the Parties.
 
 
12. THIRD PARTY INFRINGEMENT CLAIMS
 
Neither Distributor nor StimulusSoft warrants that the Software does not infringe the intellectual property of third parties or that the Software is compliant with all legal requirements (including, without limitation, statutes and regulations) that Licensee may operate under, and neither Distributor nor StimulusSoft assumes any obligation to indemnify Licensee against any claims based on either infringement of intellectual property rights of third parties or non-compliance resulting from use of the Software.
 
 
13. USE AND STORAGE OF PERSONAL INFORMATION BY STIMULUSSOFT
 
13.1. Licensee hereby consents to Distributor and StimulusSoft requesting, collecting, collating, processing, storing and/or disclosing personal information for the purposes, without limitation, of:
 
13.1.1. publicising the Software;
 
13.1.2. advertising the Software;
 
13.1.3. compiling a customer reference list that is available to the public; and
 
13.1.4. generally promoting the Software.
 
 
14. LANGUAGE OF SOFTWARE AND DOCUMENTATION
 
The Software and Documentation shall be provided by Distributor in English only, and Licensee will have no claim against either Distributor or StimulusSoft for a translated version of such Software or Documentation.
 
 Schedule 2
 
SUPPORT TERMS
 
Support: Explanation of Tier 1, 2 and 3 Support and Responsiveness
 
StimulusSoft’s technical support team is set up to provide expert technical support for all Tier 3 support/issues involving the Software. Distributor will provide Tier 1 and Tier 2 support to its end customers. In order to facilitate this, StimulusSoft will provide a “Train the Trainer” type of class to members of the Distributor’s support staff that will enable them to provide this support.
 
Guidelines to assist in understanding what constitutes a Tier 3 issue:
 
_ Tier 1 – Issues regarding installation, operational issues regarding use of the product; End user calls Licensee tech support team whose members have been trained to support
_ Tier 2 – Isolate and work through problems that related to the use of the Software with the end customer. Help customer with workarounds and solutions. End user calls Distributor tech support team whose members have been trained to answer these questions.
_ Tier 3 – StimulusSoft will work with Distributor support staff in the resolution of problems that they cannot independently resolve:
 
Once Distributor determines that a problem is of sufficient magnitude to contact StimulusSoft, Distributor may contact StimulusSoft in the following ways:
 
_ Telephone – Available for all levels of support. Distributor will be provided with a support license number. Upon keying in this number, calls will be routed into the appropriate queue to be handled by StimulusSoft.
_ E-mail support – for less urgent issues, e-mail support will be available.