END-USER LICENSE AGREEMENT
IMPORTANT: THIS AGREEMENT IS LEGALLY BINDING. READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE CLICKING “Buy Now” OR DOWNLOADING OR USING THE SOFTWARE.
As of the Effective Date and for sufficient and valuable consideration received, the parties to this End-User License Agreement (“Agreement”) hereby agree to the foregoing and as follows:
1. Contract Formation and Nature of Agreement
a. The parties to this Agreement are GmailXpress.com and affiliates, collectively (“LICENSOR”), and you, the purchaser of a limited license under this Agreement, the end user of the Software to which this Agreement relates, or both (“you” or “LICENSEE”).
b. You and LICENSOR agree that this Agreement is a legally binding contract. You acknowledge that you have fully read, understand, and are bound by all terms and conditions of this Agreement. Your use of any Gmail Xpress product is conditional upon your complete acceptance of and complete and timely performance under this Agreement.
c. THE SOFTWARE IS COPYRIGHTED AND OTHERWISE CONSTITUTES IMPORTANT INTELLECTUAL PROPERTY BELONGING TO LICENSOR. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOUR PURCHASE UNDER THIS AGREEMENT IS ONLY OF A LIMITED LICENSE TO USE A SINGLE COPY OF THE SOFTWARE, AND NOT OF THE SOFTWARE ITSELF.
d. IF YOU DO NOT AGREE TO BE BOUND AS SET FORTH IN THIS AGREEMENT, DO NOT PROCEED. DO NOT CLICK THE ONLINE PAYMENT PROCESSING BUTTON, AND DO NOT DOWNLOAD, OBTAIN, USE, OR OTHERWISE PROCEED WITH THE SOFTWARE OR ANY LICENSE KEY TO THE SOFTWARE. LIKEWISE, IF YOU DO NOT AGREE TO BE SO BOUND AND IF YOU PURCHASED A PACKAGE CONTAINING THE SOFTWARE FROM LICENSOR OR ITS AUTHORIZED DISTRIBUTOR, PROMPTLY RETURN THE PACKAGE AND ALL CONTENTS, INCLUDING, WITHOUT LIMITATION, ANY LICENSE KEY AND DOCUMENTATION, TO LICENSOR OR SUCH DISTRIBUTOR BY FIRST-CLASS, POSTAGEPREPAID MAIL OR BY HAND DELIVERY, AND LICENSE SHALL REMIT TO YOU A FULL REFUND OF THE PURCHASE PRICE YOU PAID UNDER THIS AGREEMENT, LESS A 30% ADMINISTRATIVE FEE.
2. Defined Terms
a. Capitalized terms in this Agreement shall have the meanings defined in this Section or elsewhere in this Agreement.
i) “Software” shall mean, collectively, any and all computer programs produced, created, developed, or provided by LICENSOR or its affiliates, including, without limitation, fonts, components, source code, object code, modules, updates, upgrades, or modifications thereto, license keys, and any and all related printed or online materials, packaging, instructions, or documentation in whatever form (collectively, “Documentation”) that is sold or offered for sale, in whole or in part, for the general function of enabling a licensed user to post material to one or more online forums (“Online Forum”).
ii) “Term” shall mean the period of time during which this Agreement is in effect and commencing upon the Effective Date and ending upon the expiration or earlier termination of this Agreement.
3. License Grant
a. Subject to the terms and conditions of and to LICENSEE’S full and complete performance under and compliance with this Agreement, LICENSOR hereby grants to LICENSEE a non-exclusive, limited-use, time-limited, personal, non-transferable, non-assignable license to use one copy of the Software during the Term of this Agreement with permitted and prohibited uses as additionally set forth herein, except that this license grant shall exclude:
i) Any and all rights to create derivative works of, copy, publicly display, or publicly perform the Software, in whole or in part;
ii) Any and all rights as to LICENSOR’S current or future patents, trademarks, trade secrets, and confidential or proprietary information; and
iii) Any other licenses of any type, implied or otherwise.
b. LICENSEE shall be solely responsible for complying with all terms of use and other contractual obligations that govern its conduct in and as to Online Forum, including, without limitation, as to intellectual property rights and the posting of content, including, without limitation, images of any type.
c. Permitted Conduct.
i) Single Computer Use Permitted. Subject to the other terms and conditions of the license granted in this Agreement, LICENSEE shall be permitted to use one licensed copy of the Software on a single personal computer satisfying LICENSOR’S minimum system and performance requirements as posted online by LICENSOR and as may be modified from time to time at LICENSOR’S sole discretion and without notice. The Software shall be deemed to be “in use” on a computer when it is loaded into temporary memory, e.g., random access memory or RAM, or installed into permanent memory, e.g., hard drive, CD-ROM, or other storage device, of that single computer. LICENSEE shall be permitted to transfer the Software from one such single computer to another such single computer in LICENSEE’S possession or control, provided the Software is in use on only one computer at a time.
ii) One Archival Copy Permitted. Subject to the marking and notice requirements of this Agreement, LICENSEE shall be permitted to make and possess one additional copy only of the Software, excluding Documentation, only during the Term of this Agreement, provided that:
(1) Such copy shall be maintained in LICENSEE’S possession or control and shall be solely for archival purposes;
(2) Such copy must include all markings and notices on and related to Software; and
(3) Such copy shall be, upon LICENSOR’S request, promptly destroyed and timely certified in writing by LICENSEE to LICENSOR as such under penalty of perjury.
d. Prohibited Conduct.
i) Unlicensed Conduct. LICENSEE shall not engage in or permit any conduct not expressly licensed hereunder and shall be prohibited from same.
ii) Network and Remote Access Use Prohibited. LICENSEE shall be prohibited from use of the Software on a computer network or server or in any remote access arrangement whereby two or more users in one or more locations may use the Software. LICENSEE shall purchase one license from LICENSOR for each user and thereafter separately download one copy of the Software for each user in which a multiple-user situation is desired by LICENSEE, and each such purchase shall be subject to the terms and conditions then applicable.
iii) Documentation and License Key Copying Prohibited. LICENSEE shall not copy any Documentation or license key, or attempt to do so.
iv) Permanent Transfer Prohibited. LICENSEE shall not transfer the Software, in whole or in part, to any third party, or attempt to do so.
v) Rent or Lease Prohibited. LICENSEE shall not rent or lease or temporarily loan the Software, in whole or in part, to any third party, or attempt to do so.
vi) Assignment and Sublicense Prohibited. LICENSEE shall not sublicense or assign the Software, in whole or in part, or any of its rights or duties under this Agreement to any third party, or attempt to do so.
vii) Modification, Reverse Engineering, and Derivative Works Prohibited. LICENSEE shall not modify, translate, reverse engineer, decompile, disassemble, or create derivative works based upon the Software, in whole or in part, and shall not attempt to do any of the foregoing.
viii) Removal of Markings and Notices, and most reproduction of same prohibited. LICENSEE shall not remove any product identification, ownership, and copyright and other intellectual property rights markings and notices from any part of the Software, or attempt to do so. Except as and the extent permitted otherwise under this Agreement, LICENSEE shall not reproduce any markings or notices contained in or on the Software, or attempt to do so.
ix) Inappropriate and Illegal Conduct Prohibited. LICENSEE shall not to use Software to carry out or participate in inappropriate or illegal activity, including, without limitation, the sending of unsolicited commercial email or “spamming” or practices that may violate the Federal Trade Commission Act or any federal or state consumer protection law.
x) Business Interference and Agitation Prohibited. LICENSEE shall not interfere with LICENSOR’S business operations, including, without limitation, its Web presence, and shall not agitate LICENSOR’S business relationships, including, without limitation, customers, or attempt to so interfere or agitate.
4. LICENSEE’S Duties as to Legal, Contractual and Tax Compliance
a. LICENSEE shall comply with all applicable laws, including, without limitation, the Federal Trade Commission Act or any federal or state consumer protection law and regulations promulgated by the Foreign Trade Regulation.
b. LICENSEE shall be solely responsible for any and all tax obligations arising out of LICENSEE’S purchase under this Agreement and shall completely and timely satisfy such obligations.
5. License Duration and Termination
a. License Duration. The license herein granted shall continue only during the Term of this Agreement and shall immediately and entirely terminate upon the expiration or termination of this Agreement.
b. Expiration. This Agreement shall expire with or without notice upon LICENSOR’S cessation of operations or of sales or offers of sale of the Software or upon LICENSOR’S determination, in its sole discretion, that it no longer desires the Software to be in use. Furthermore, this Agreement shall expire upon LICENSEE’S filing for bankruptcy protection, liquidation, or apparent cessation of operations.
c. Amendment. LICENSOR may, from time to time and with or without notice, amend this Agreement. LICENSEE, by continuing to use the Software, manifests consent to such amendments and shall be bound by same upon LICENSOR’S online posting of same. If LICENSEE does not agree to be bound by such amendments, LICENSEE must refrain from any use of the Software and must terminate this Agreement in accordance with the relevant provisions herein.
d. Termination.
i) LICENSEE shall have the right to terminate this Agreement only upon written notice to LICENSOR, provided that LICENSEE simultaneously:
(1) Returns the Software in its entirety, including all copies thereof in any form, by hand delivery or first-class, postage-prepaid mail to LICENSOR; or
(2) Destroys the Software in its entirety, including all copies thereof in any form, and providing written certification, upon penalty of perjury, of such destruction to LICENSOR, and
(3) Provided that this Agreement and the license herein-granted shall immediately terminate upon the date on which LICENSOR receives such notice and returned Software or such notice and certification of destroyed Software, as the case may be.
ii) LICENSOR shall have the right to immediately terminate this Agreement and the license granted herein at any time upon sending written notice of same to LICENSEE.
iii) Notwithstanding LICENSOR’S rights of termination with notice, this Agreement shall immediately terminate upon any unlicensed or prohibited conduct by or permitted by LICENSEE.
e. Certified Disposition of Software. Upon the expiration or termination of this Agreement, and except for termination under any provision of this Agreement that requires the return of the Software to LICENSOR, LICENSEE shall promptly destroy the Software in its entirety, including all copies thereof in any form, and provide written certification, upon penalty of perjury, of such destruction to LICENSOR.
6. Disclaimers, Limitations, and Exclusions
a. EXCEPT TO THE EXTENT SET FORTH ELSEWHERE IN THIS AGREEMENT, LICENSOR AGREES TO PROVIDE THE SOFTWARE UNDER THIS AGREEMENT “AS IS” AND WITH ALL FAULTS, AND LICENSOR DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE SOFTWARE AND ITS DOWNLOADING, INSTALLATION, OR USE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY, OF NON-INFRINGEMENT, OF NON-MISAPPROPRIATION, AND OF FITNESS FOR PARTICULAR PURPOSE REGARDLESS; AND AS TO LICENSEE’S ABILITY TO USE THE SOFTWARE ON AN UNINTERRUPTED, ERROR-FREE, OR SECURE BASIS OR WITHOUT FLAGGING OR DELETION OF CONTENT POSTED TO ANY ONLINE FORUM; and LICENSEE ACCEPTS THE SOFTWARE SUBJECT TO SAME AND TO ALL OTHER LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT.
b. LICENSOR’S SOLE REPRESENTATION TO LICENSEE AS TO THE SOFTWARE’S FUNCTIONALITY SHALL BE THAT, AT THE TIME OF THE LICENSEE’S INITIAL PURCHASE, THE SOFTWARE FUNCTIONS TO ENABLE A LICENSED USER WHO UTILIZES THE SOFTWARE ON A SINGLE COMPUTER THAT SATISFIES LICENSOR’S MINIMUM SYSTEM AND PERFORMANCE REQUIREMENTS TO POST MATERIAL TO AT LEAST ONE ONLINE FORUM FOR AT LEAST ONE (1) WEEK FOLLOWING THE EFFECTIVE DATE. AFTER THAT POINT IN TIME, HOWEVER, AND GIVEN THAT LICENSOR DOES NOT CONTROL THE OPERATION OF OR ANY OTHER ASPECT OF ONLINE FORUM, LICENSOR DISCLAIMS ANY AND ALL REPRESENTATIONS TO LICENSEE WHATSOEVER.
a. IN NO EVENT SHALL LICENSOR OR ITS PRINCIPALS, OWNERS, EMPLOYEES, OFFICERS, ATTORNEYS, ACCOUNTANTS, AGENTS, REPRESENTATIVES, SUPPLIERS, OR DISTRIBUTORS BE LIABLE FOR LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, BY NEGLIGENCE AND INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, OUT OF THE DOWNLOADING, INSTALLATION, OR USE OF THE SOFTWARE OR ANY FAILURE OR LOSS OF USE OF SAME, LOSS OF USE OF OR DAMAGE TO ANY COMPUTER, FILES, DOCUMENTS, OR ANY OTHER PROPERTY OF LICENSEE OR ANY THIRD PARTY, OR THE USE OR OPERATION OF LICENSOR’S WEB SITE OR SERVICES.
b. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY AND ALL DAMAGES, FORESEEN OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES, TO THE EXTENT THAT SUCH EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PROHIBITED BY LAW, FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT OR ANY AND ALL THIRD-PARTY CLAIMS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
c. LICENSOR’S entire liability and LICENSEE’S entire and exclusive remedy for any claims related to this Agreement, including third-party claims, shall be limited to, at LICENSOR’S sole option, the replacement of the Software or a refund of the purchase price paid by LICENSEE, less a 30% administrative fee, subject to LICENSEE’S postage-prepaid return of the Software in its entirety and a legible copy of the purchase receipt or written certified of destruction of the Software in its entirety including any and all copied thereof, to the LICENSOR; and further subject to LICENSEE’s prior contact with and good faith efforts to resolve with LICENSOR’s Help Desk any difficulties regarding the functioning of the Software.
d. In the event that the law of a jurisdiction does not permit the disclaimers, limitations, or exclusions set forth herein, such terms and conditions shall nevertheless apply to the fullest extent permitted by law, provided, however, that this provision shall not be construed to mean that the law of such a jurisdiction controls over the choice of governing law provision set forth elsewhere herein.
NOTICE. Some states may not allow one or more of such limitations, exclusions, or disclaimers, and LICENSEE is notified to evaluate and determine the applicability of the foregoing to LICENSEE.
c. LICENSEE’S Assumption of Risk, Warranties and Representations, Waivers, and Releases.
i. LICENSEE hereby assumes all risks and responsibilities as to the selection, appropriateness, downloading, installation, and use of the Software and the results obtained thereby; and LICENSOR shall bear no risk or responsibility whatsoever as to same.
ii. LICENSEE hereby warrants and represents, and LICENSOR reasonably relies upon same, that:
(a) LICENSEE, including its principals, owners, employees, officers, agents, and representatives, shall fully comply with the terms and conditions of the Agreement;
(b) if LICENSEE is a natural person, LICENSEE is at least eighteen (18) years of age at the time of his or her initial purchase under this Agreement; and
(c) LICENSEE shall comply and be solely responsible for compliance with any and all terms of use or other contractual obligations LICENSEE undertakes as to third parties, including, without limitation, Online Forum as to which LICENSEE’S use of the Software may relate to such obligations.
iii. LICENSEE hereby forever releases and covenants not to sue LICENSOR or its principals, owners, employees, officers, attorneys, accountants, agents, and representatives, from any actual or alleged claims, damages, or demands of any type arising out of or related to the Agreement in any way whatsoever.
7. Information Provision and Privacy
a. LICENSEE hereby authorizes LICENSOR to share limited information, including personallyidentifiable and payment information, with appropriate third parties so as to carry out transactions related to this Agreement and otherwise carry out its business operations.
b. LICENSEE shall provide to LICENSOR complete and accurate information during the process of carrying out your purchase under this Agreement, and LICENSOR reasonably relies upon the completeness and accuracy thereof.
8. Taxes
LICENSEE shall pay to the appropriate governmental authorities, and shall promptly reimburse LICENSOR upon request if LICENSOR is required to pay such authorities, any sales, use, valueadded, consumption, or other tax, excluding LICENSOR’S income tax, or any other fee or charge whatsoever levied or imposed by any governmental authority with regard to your purchase of a package containing the Software or Documentation, your use of the Software, or the herein-granted license.
9. Indemnification
LICENSEE hereby fully indemnifies, holds harmless, and agrees to defend, at its sole cost, LICENSOR and its principals, owners, employees, officers, attorneys, accountants, agents, and representatives, for any and all harm and damages, legal or otherwise, arising from LICENSEE’S conduct under this Agreement or from its downloading, installation, or use of the Software, including, without limitation, claims of violation of consumer protection laws and of infringement, dilution, or misappropriation.
10. General Provisions
a. This Agreement constitutes the complete and exclusive agreement between the parties and supersedes any and all prior proposal, agreement, and communication, in electronic or whatever form, between the parties regarding the subject matter hereof.
b. If any provision of this Agreement is held to be void, illegal, or unenforceable, all other provisions of this Agreement shall remain in full force and effect.
c. Upon the expiration or termination of this Agreement, the license herein granted shall expire in its entirety. Other provisions of this Agreement that by their nature do survive the expiration or termination of this Agreement shall so survive.
d. As to LICENSEE, there shall be no third-party beneficiaries to the Agreement.
