On-Premise License Ageeement
between Stimulus Software (Pty) Ltd and Licensee
1. INTERPRETATION AND DEFINITIONS
1.1. In this agreement, unless inconsistent with or otherwise indicated by the context:
1.1.1. "Licensee" is the user of the Software;
1.1.2. "Stimulus" is Stimulus Software (Pty) Ltd, a company incorporated according to the laws of South Africa;
1.1.3. "the Parties" are Stimulus and Licensee;
1.1.4. "Commencement Date" means the day on which the user accepts the terms of this agreement by, without limitation: (i) clicking the I Agree, I Accept or similar button on the MailArchiva Installer; or (ii) typing “yes” when prompted to accept this agreement;
1.1.5. "Termination Date" is, in respect of the Free Edition, the date on which Stimulus at its sole discretion ceases to make the Free Edition available to Licensee;
1.1.6. "the Software" means MaillArchiva including all Updates (excluding
Upgrades);
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. "Documentation" means any documentation relating to the Software that is prepared by Stimulus or provided to Licensee by Stimulus;
1.1.10. "the Copyright" means the copyright that subsists in the Software and Documentation;
1.1.11. "Mailboxes" means the number of email accounts on Licensee’s mail server;
1.1.12. "Server" means a computer that runs the Software;
1.1.13 "Free Edition" means the version of the Software (with features deactivated and/or other limitations) that is from time to time made available by Stimulus without payment by Licensee; and
1.1.14 "On-Premise" means the version of the Software that is made available by Stimulus for consideration.
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.
2. LICENSED RIGHTS
2.1 Stimulus hereby grants to Licensee a personal, non-transferable, non-exclusive worldwide licence to:
In respect of the Free Edition
use the Software, subject to clause 2.2.
In respect of the On-Premise
use the Software to archive the number of Mailboxes detailed in the about tab of the MailArchiva server administration console on a single server.
2.2 In respect of the Free Edition: Licensee acknowledges that Stimulus may from time to time at its sole discretion deactivate certain features of the Software. In addition, Licensee undertakes not to dispose of or distribute or otherwise commercialise the Free Edition.
2.3 Licensee may at any time convert the Free Edition licence to an On-Premise licence by purchasing the On-Premise.
3. TERM
This licence commences with effect from the Commencement Date and will remain in force (in respect of the Free Edition) until the Termination Date.
4. CONSEQUENCES OF TERMINATION
4.1. In the event of termination or cancellation of this agreement, Licensee undertakes within one calendar month following such termination or cancellation, and at Licensee’s own cost, to:
4.1.1. delete all copies of the Software from its systems;
4.1.2. destroy all back-ups of the Software;
4.1.3. return or destroy all copies of the Documentation;
In addition, Licensee undertakes not to use or permit persons to use the Software or Documentation after such date of termination or cancellation.
4.2. This clause 4 “Consequences of termination” will survive termination or cancellation of this agreement for any reason whatsoever and remain in force indefinitely.
5. UPDATES AND SOURCE CODE
5.1. Stimulus may from time to time notify Licensee of new Updates (excluding Upgrades), which Licensee will be entitled to download. No additional consideration will be payable by Licensee to Stimulus for such Updates (excluding 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. Licensee undertakes:
6.1.1. In respect of the On-Premise only: to use the Software:
6.1.1.1. only on the number of Mailboxes detailed in the about tab of the MailArchiva server administration console; and
6.1.1.2. only on a single Server processing the licensed Mailboxes.
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. part with possession of, lend or transfer or make available the use of any part of the Software to any other person (apart from users of the licensed Mailboxes); or
6.1.2.4. use the Software or Documentation in any manner not authorised in terms of this agreement.
6.1.3. Not to 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 in terms of this agreement.
6.2. Notwithstanding anything to the contrary contained in this clause 6, 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 Stimulus, and insofar as may be required by law, Licensee hereby assigns to Stimulus all such goodwill that may in future exist, and in this regard undertakes, if required by Stimulus, to perform all acts that may be necessary (at Stimulus’ cost) to effect such assignment.
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, Stimulus 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 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, Stimulus or its representatives shall be entitled to copy or retain any item that Licensee may possess in violation of this agreement.
8. WARRANTIES BY STIMULUS
8.1. Stimulus 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.
8.2. The Software is supplied “as is” and Stimulus does not warrant that the Software is free of bugs, inadvertent errors, defects or malfunctions. In respect of the On-Premise: if Stimulus is notified of any significant inherent defect or error in the Software within the first 12 months following the Commencement Date, it will take all reasonable steps to correct any such defect or error within a reasonable time.
8.3. Stimulus 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. Stimulus 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.
8.4. Licensee undertakes to inform Stimulus by written notice 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.
8.5. Notwithstanding anything to the contrary contained in this agreement, Licensee acknowledges that:
(i) proper use of the Software is dependent upon the Software’s continuing ability to integrate with and use the Google web service API (“the API”);
(ii) Stimulus has no control over the API; and
(iii) (a) modification, deprecation or substitution of the API,
(b) changes to the terms of use of the API, and/or
(c) blockage of the API’s use by the Software,
may cause disruption or cessation of proper use of the Software by Licensee that cannot be remedied by Stimulus. Licensee accepts such risk and waives any consequential rights, claims, damages and/or demands against Stimulus relating to reimbursement of amounts paid hereunder and/or liability for accrued payments hereunder.
8.6. Notwithstanding anything to the contrary contained in this agreement, any liability of Stimulus arising out of this agreement will be limited to Stimulus rectifying, within a reasonable time and free of charge, any bugs, inadvertent errors or malfunctions in the Software (On-Premise only) in respect of which notice have been provided in terms of clause 8.4. In no instance, will Stimulus be liable to restore or correct data.
8.7. The warranties contained in this warranties clause 8 are Licensee’s 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 8 also sets out Licensee’s
sole remedies for any breach of Stimulus’ 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 Stimulus (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 Stimulus and Stimulus 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 8.7, under no circumstances (except in the event of personal injury or death resulting from Stimulus’ negligence) will Stimulus, 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.
The Software may malfunction and to prevent loss of data and emails, it is suggested that the data is
backed-up regularly.
9. SUPPORT AND UPGRADES
9.1. Stimulus’ technical support staff will endeavour to respond to any queries Licensee may have about the Software (On-Premise) during a period of 12 Months following the Commencement Date (“Initial Support Term”). For support, consult the Stimulus’ web site at www.mailarchiva.com, or email Stimulus at info at mailarchiva.com.
9.2. Extended Support Term: Licensee may prior to expiry of the Initial Support Term or any Extended Support Term, pay to Stimulus the amount detailed on www.mailarchiva.com to extend the support services for a further 1, 2 or 3 year period (“Extended Support Term”). Upon such payment, Stimulus shall provide Licensee with Tier 1 and 2 email and telephone support services for the Extended Support Term. Support will be provided on weekdays 9am to 5pm London Standard Time and 9am to 5pm Eastern Standard Time, excluding US Federal holidays, and Stimulus shall use reasonable efforts to respond to support requests within 48 hours.
9.3. Should Licensee wish to obtain support services (1, 2 or 3 years) from Stimulus following expiry of the Initial Support Term or Extended Support Term (if applicable), Licensee may pay Stimulus:
9.3.1. where such payment is made within 4 months following expiry of the Initial Support Term or Extended Support Term (if applicable): the amount detailed on www.mailarchiva.com to extend the support services for a further 1, 2 or 3 year period.
9.3.2. where such payment is made between 4 and 12 months following expiry of the Initial Support Term or Extended Support Term (if applicable): 20% of the price from time to time to purchase the Software (On-Premise) (together with support). Software purchase prices are available at www.mailarchiva.com.
9.3.3. where such payment is made between 12 and 24 months following expiry of the Initial Support Term or Extended Support Term (if applicable): 35% of the price from time to time to purchase the Software (On-Premise) (together with support).
9.3.4. where such payment is made between 24 and 36 months following expiry of the Initial Support Term or Extended Support Term (if applicable): 50% of the price from time to time to purchase the Software (On-Premise) (together with support).
9.3.4. where such payment is made after 36 months following expiry of the Initial Support Term or Extended Support Term (if applicable): 100% of the price from time to time to purchase the Software (On-Premise) (together with support).
The period of support in terms of this clause 9.3 is deemed included in the definition of “Extended Support Term”.
9.3. In respect of the On-Premise: Stimulus will during the Initial and Extended Support Term(s) provide Licensee with access to any Upgrades.
9.4. Licensee will during the term of this agreement be entitled to Updates, provided that Licensee will only have access to the auto-update feature during the Initial and Extended Support Terms. All right, title and interest in Upgrades and Updates will vest in Stimulus.
9.5. Apart from the obligations specifically detailed in this Support and Updates clause 9, Stimulus has no obligation to furnish Licensee with technical support unless separately agreed in writing between the Parties.
9.6. Due to complexities associated with API level integration, Stimulus is not required to respond to support queries involving the MailArchiva REST or SOAP API's.
10. STIMULUS’ WARRANTIES
10.1. Stimulus does not warrant that:
10.1.1. the Software does not infringe the intellectual property of third parties;
10.1.2. the Software is compliant with all legal requirements (including, without limitation, Sarbanes-Oxley Act, Gramm-Leach Bliley Act, the Freedom of information Act, Health Insurance Portability and Accountability Act, other statutes and regulations) that Licensee may operate under; and
10.1.3. the Software guarantees the security of the Licensed Mailboxes and the integrity of the data contained therein.
Stimulus assumes no obligation to indemnify Licensee against any claims based on either infringement of intellectual property rights of third parties, non-compliance resulting from use of the Software, loss of data contained in Licensed Mailboxes, or breaches of security in respect of the licensed Mailboxes.
11. INDEMNITY
11.1. Licensee indemnifies Stimulus and its members, 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.
11.2. In the event that any claim is made successfully against Stimulus, the liability of the Stimulus is limited to an amount equal to the licence fee payable in terms of this agreement.
12. USE AND STORAGE OF PERSONAL INFORMATION BY STIMULUS
12.1. Licensee hereby consents to Stimulus requesting, collecting, collating, processing, storing and/or disclosing personal information for the purposes, without limitation, of:
12.1.1. publicising the Software;
12.1.2. advertising the Software;
12.1.3. compiling a customer reference list that is available to the public; and
12.1.4. generally promoting the Software.
13. LANGUAGE OF SOFTWARE AND DOCUMENTATION
The Software and Documentation shall be provided by Stimulus in English only, and Licensee will have no claim against Stimulus for a translated version of such Software or Documentation.
14. FORCE MAJEURE
In the event of force majeure, being unforeseeable events beyond the control of Stimulus and preventing Stimulus from meeting its obligations under this agreement, it is agreed that if notice of such situation is given by Stimulus 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.
15. CESSION, ASSIGNMENT AND SUBLICENSING
15.1. The rights and obligations of Licensee may not be ceded, assigned, let or otherwise disposed of in any manner whatsoever without the prior written consent of Stimulus.
15.2. Licensee may not sub-license its rights in terms of this agreement.
16. 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.
17. GOVERNING LAW
This agreement is governed in all respects by the laws of the Republic of South Africa.
18. CANCELLATION
Should a Party be in breach of any of the terms or conditions hereof and fail to remedy such breach within 60 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.
19. WHOLE AGREEMENT
19.1. This document constitutes the whole of the agreement (to the exclusion of all else) between the Parties relating to the subject matter hereof.
19.2. No amendment, alteration, addition, variation or consensual cancellation of this document will be valid unless in writing and signed by the Parties.
20. WAIVER
20.1. 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.
20.2. 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.
21. 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.
22. NOTICES
22.1. All notices in terms of this agreement must be in writing addressed to the chosen address of the Party and sent by prepaid registered post.
22.2. Posted notices will be deemed to have been received on the twentieth calendar day following posting.
23. 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.
Stimulus is deemed to have agreed to this agreement on the date the I AGREE button is clicked.
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