LICENSE AGREEMENT: This Software
License Agreement (this "Agreement") is a legal agreement between
you, the end customer ("Licensee" or "you") and MailSite
Software Incorporated ("MailSite, Inc." or "Licensor").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE ACCOMPANYING MAILSITE
FUSION ENGINE (THE "SOFTWARE"). BY USING THE SOFTWARE, YOU ARE
CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO
NOT CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "I
DO NOT AGREE" BUTTON OR RETURN FOR REFUND THE UNUSED SOFTWARE AND ALL
ACCOMPANYING DOCUMENTATION WITHIN TEN (10) DAYS OF PURCHASE TO THE VENDOR FROM
WHOM YOU OBTAINED IT.
GRANT: Licensor grants you
a non-exclusive, non-transferable license (the "License") to use the
Software on a single computer owned or leased by you ("Server") or on
multiple Servers connected in a network that authenticate against a single
subscriber database ("Cluster of Servers") limited to the total
number of mailboxes that you purchased. The Software is deemed "in
use" on a single Server or on a Cluster of Servers when it is loaded into
the temporary memory (i.e. RAM) or installed onto the permanent memory (e.g.
hard disk or other storage medium) of the Server(s). If you have more than one
License for the Software, then at any time you may have as many copies of the
Software in use as you have Licenses. The MailSite Console is subject to this
Agreement, however it may be freely installed on any of your Servers.
LICENSE KEY: A License Key may
have been supplied to you to activate your use of the Software. The License Key
is confidential information of MailSite, Inc, and you may not disclose it to
any other person or entity.
RESTRICTIONS: The Software and the
accompanying Administration Guide ("Manual") contain copyrighted
material, trade secrets, and other proprietary information belonging to
Licensor and/or its licensors and are therefore protected by United States
copyright laws, international treaty provisions and all other applicable laws.
In order to protect them, and except as permitted by applicable law, you may
not: (a) modify, decompile, disassemble, decrypt, or otherwise reverse engineer
the Software or create derivative works based upon the Software in whole or in
part; (b) rent, transfer, assign, lease, sublicense or grant any rights in the
Software, or any portion thereof, in any form to any person without the prior
written consent of Licensor which, if given, shall be subject to the conferee's
consent to the terms and conditions of this Agreement; or (c) remove any
proprietary notices, labels or marks on the Software.
LIMITED WARRANTY AND
The sole warranty regarding the Software is that the Software will perform in
substantial compliance with the Manual on that hardware and operating system
software for which it was designated (as stated in the Manual) for a period of
90 days from the date of purchase. The entire liability of MailSite, Inc. and
your sole and exclusive remedy for any breach of this limited warranty shall
be, at the option of MailSite, Inc, either (a) the refund of your payment for
the Software upon your return of Software and the Manual along with a copy of
your receipt, or (b) the replacement of the Software on an exchange basis
without charge provided you return the Software and the Manual along with a
copy of your receipt. This Limited Warranty is void if failure of the Software
has resulted from accident, abuse or misapplication. Any replacement Software
will be warranted for the remainder of the original warranty period or 30 days,
whichever is longer.
TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, MAILSITE, INC. DISCLAIMS ALL OTHER WARRANTIES
EITHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE SOFTWARE AND
THE MANUAL, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR
THEIR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT
EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE
OF PURCHASE OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
MAILSITE, INC. AND ITS SUPPLIERS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR THE LIKE), WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
ANY OTHER THEORY OF LIABILITY EVEN IF LICENSOR OR ITS REPRESENTATIVES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH
HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN ANY EVENT, THE
ENTIRE LIABILITY OF MAILSITE, INC. UNDER ANY PROVISION OF THIS AGREEMENT SHALL
BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE, OR TO $1000,
WHICHEVER IS THE LESSER AMOUNT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
TERMINATION: This License is
effective until terminated. You may terminate this License at any time by
destroying the Software, the Manual and any copies thereof. This License will
terminate immediately without notice from Licensor if you fail to comply with
any provision of this License. Upon termination you must destroy or return to
Licensor the Software, the Manual and any copies thereof.
This Agreement shall be governed by and construed in accordance with the laws
of the United States and the State of California, as applied to agreements
entered into and to be performed entirely within California between California
residents. If for any reason a court of competent jurisdiction finds any
provision of this Agreement or portion thereof, to be unenforceable, that
provision of the License shall be enforced to the maximum extent permissible so
as to effect the intent of the parties, and the remainder of this Agreement
shall continue in full force and effect. This Agreement is deemed entered into
at Campbell, California, and jurisdiction for resolution of any disputes shall
reside solely in the state and federal courts of the County of Santa Clara,
State of California. This Agreement shall be construed as to its fair meaning
and not strictly for or against either party.
MISCELLANEOUS: You acknowledge
that, in providing you with the Software, Licensor has relied upon your
agreement to be bound by the terms of this Agreement. You further acknowledge
that you have read, understood, and agreed to be bound by the terms of this
Agreement, and hereby reaffirm your acceptance of those terms. You further
acknowledge that this Agreement constitutes the complete statement of the
agreement between you and Licensor, and that the Agreement does not include any
other prior or contemporaneous promises, representations, or descriptions
regarding the Software. However, this Agreement does not limit any rights that Licensor
may have under trade secret, copyright, patent, or other laws that may be
available to it. The agents, employees, distributors, and dealers of Licensor
are not authorized to make modifications to this Agreement, or to make any
additional representations, commitments, or warranties binding on Licensor.
Accordingly, additional statements such as dealer or other advertising or
presentations, whether oral or written, do not constitute representations or
warranties by Licensor and should not be relied upon. This Agreement may be
modified only in writing. If any provision of this Agreement is invalid or
unenforceable under applicable law, it is to that extent, deemed omitted and
the remaining provisions will continue in full force and effect. Use, duplication
or disclosure by the U.S. Government is subject to restrictions stated in
paragraph (c) (1) (ii) of the Rights in Technical Data and Computer Software
clause at 252.227-7013.
AVG END USER SOFTWARE LICENSE AGREEMENT
License Grant; Related Provisions
Technologies, subject to the terms and conditions of this Agreement, hereby
grants to you a non-exclusive and non-transferable license during the Term to
use the Software only in executable or object code form solely for your
personal or internal business purposes. This license authorizes you to use the
Software on or in conjunction with up to (i) the number of computers specified
by your order for the Software, or (ii) in the case of Software purchased on a
CD or other physical medium, the number specified on the Software package, or
(iii) if you received the Software in combination with other hardware or
software, solely in conjunction with such other hardware or software.
not, and shall not permit any third party to,
(i) duplicate the Software for any purpose other than as reasonably necessary
to use the same as contemplated by this Agreement and for off-line archival and
disaster recovery purposes;
(ii) except for temporary transfer in the event of computer malfunction,
install the Software on a second computer;
(iii) publish the Software or use the same other than for the purposes
described in Section 1.a of this Agreement;
(iv) except as expressly authorized by law, reverse engineer, disassemble,
decompile, translate, reconstruct, transform or extract the Software or any
portion of the Software (including without limitation any related malware
signatures and malware detection routines);
(v) except as expressly authorized by law, change, modify or otherwise alter
the Software (including without limitation any related malware signatures and
malware detection routines);
(vi) transfer, pledge, rent, share or sublicense the Software other than in
connection with the sale or other transfer of the computer on which it is
(vii) grant any third party access to or use of the Software on a service
bureau, timesharing, subscription service, rental or application service
provider basis or otherwise; or
(viii) defeat or circumvent, attempt to defeat or circumvent, or authorize or
assist any third party in defeating or circumventing controls on the
installation or use of copies of the Software.
Technologies, from time to time during the Term, may provide updates to the
Software and/or the malware signatures included therein (each, an “Update”).
Updates will be deemed Software for all purposes under this Agreement. You
acknowledge that you must routinely download and permit installation of Updates
in order to obtain maximum benefit from the Software.
initial term of this Agreement will commence on the date you download or
otherwise acquire the Software, and will continue
(i) for the term you specified in your order for the Software, or
(ii) if you purchased the Software on CD or other physical medium, on the
Software package, or
(iii) if you received the Software in combination with other hardware or
software, the term specified by your supplier. If renewal terms are available,
AVG Technologies will provide notice offering you the opportunity to purchase
renewals at the then-current renewal price. The initial term and any renewals
purchased are referred to in this Agreement as the “Term”.
Technologies, in addition to such other rights may be available at law or
equity, shall be entitled to terminate this Agreement at any time without
notice if you commit a material breach of this Agreement.
expiration or termination of this Agreement, you will cease using the Software,
AVG Technologies may cease making Updates available to you, and the Software
may cease functioning. Sections 1.b, 3, 4, 5 and 6 will survive the
expiration or termination of this Agreement.
Technologies reserves all rights in the Software not expressly granted by this
Agreement. All copyrights, trademarks and other conceivable intellectual
property rights in and to the Software (including, but not limited to, malware
signatures and other data files, images appearing in the Software and screen
displays as well as any and all documentation relating to the Software) are
owned by AVG Technologies or its licensors, and are protected by United States
and foreign copyright laws, international treaties and other applicable laws.
Any copy of the Software you are allowed to make pursuant to this Agreement
must contain the entire copyright and other notices included with the original
copy of the Software.
Technologies warrants, that on delivery of the Software and for a period of
thirty (30) days thereafter, that the medium (if any) on which the Software is
delivered will be free of material defects, and that the Software will perform
substantially in accordance with the applicable specifications. The foregoing
warranty applies only to the Software as originally delivered, and does not
apply to Updates. Your sole and exclusive remedy for breach of this Warranty is
replacement of the defective media or Software or, at AVG Technologies’ option,
return of the Software for a full refund. In order to exercise your rights
under this Section 4, you must deinstall and destroy all copies of the Software
you may have made (including all archival copies), and (i) if you purchased the
Software by download, follow the instructions on the confirmation email you
received in connection with the purchase, or (ii) for all other purchases,
return the Software in its original package, along with your receipt, to the
point of purchase.
b. Beta Versions
the provisions of Section 4.a, THE PROVISIONS OF THIS SECTION 4.b APPLY IN
PLACE OF SECTION 4.a IF (AND ONLY IF) THE SOFTWARE IS A “BETA TEST” VERSION. In
view of the evaluation nature of Software, Software is provided on an “as is”,
“as available” basis, without warranty and without support or other services by
AVG Technologies. YOU AGREE TO USE THE AVG BETA SOFTWARE STRICTLY FOR THE
PURPOSES OF EVALUATION AND TESTING, AND THAT YOUR RELIANCE ON THE AVAILABILITY
OR ACCURACY OF THE AVG BETA SOFTWARE SHALL BE ENTIRELY AT YOUR OWN RISK.
EXPRESSLY PROVIDED BY SECTION 4.a OF THIS AGREEMENT, AVG TECHNOLOGIES DISCLAIMS
ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, MEDIA AND ANY OTHER SUBJECT
MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTY OF NONINFRINGEMENT. AVG
TECHNOLOGIES DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT THE SOFTWARE WILL PROVIDE 100% PROTECTION.
Some jurisdictions do not allow limitations on an implied warranty, so the
above limitations may not apply to you. You may have other rights that vary from
jurisdiction to jurisdiction.
Limitation of Liability
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVG TECHNOLOGIES
OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER,
WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION,
DAMAGES INCURRED FOR LOSS OF BUSINESS PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS
OF USE OF ANY COMPUTER OR SOFTWARE INCLUDING THE SOFTWARE, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT
OF THIS AGREEMENT OR THE SOFTWARE PROVIDED HEREUNDER, EVEN IF AVG TECHNOLOGIES
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AVG
TECHNOLOGIES’ LIABILITY RELATED TO THE SOFTWARE EXCEED THE LESSER OF THE FEES
YOU ACTUALLY PAID FOR THE SOFTWARE AND AVG TECHNOLOGIES’ SUGGESTED RETAIL PRICE
FOR THE SOFTWARE AS OF THE DATE YOU RECEIVED IT. THE FOREGOING LIMITATION SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Technologies may deliver any notice to you via pop-up window, dialog box or
other means, even though you may not receive the notice unless and until you
launch the Software. Any such notice will be deemed delivered on the date AVG
Technologies first makes it available through the Software, irrespective of
when you actually receive it.
(i) You acknowledge that AVG Technologies collects certain
information regarding the users of the Software, including certain personally
identifiable information. You hereby consent to AVG Technologies’ collection
and use of such information, and agree that AVG Technologies’ collection and
currently published at www.avg.com
as AVG Technologies may revise the same from time to time.
(ii) BY PROCEEDING TO INSTALL THE TOOLBAR, YOU ACKNOWLEDGE AND
ACCEPT THAT, UPON ITS INSTALLATION, THE TOOLBAR WILL MODIFY VIA THE SETTINGS OF
YOUR BROWSER THE “DNS ERROR PAGE” AND “ERROR 404 PAGE”. FURTHERMORE, ONCE
INSTALLED, THE TOOLBAR MAY COMMUNICATE CERTAIN BASIC USAGE INFORMATION TO
VISICOM MEDIA INC. VIA (“APPLICATIONSTAT.COM”) TO HELP VISICOM COMPILE GLOBAL
STATISTICS CONCERNING USAGE OF THE TOOLBAR BY USERS (for example concerning the
number of installations and unique users, the number of clicks which the
Toolbar receives, the number of searches performed by users, etc.). Such statistical
information will not include any personally identifiable information regarding
c. U.S. Government License
Any Software provided to the U.S. Government is provided with the
commercial license rights and restrictions described elsewhere herein. AVG
Technologies reserves all unpublished rights under the United States copyright
d. Complete Agreement
This Agreement constitutes the complete Agreement between the
parties and supersedes all previous communications and representations or agreements,
either oral or written, with respect to the subject matter hereof.
e. Amendments; Waiver
This Agreement may be modified or changed in whole or in part in
any manner other than by an Agreement in writing duly signed by both parties
hereto or by a further electronic agreement presented by AVG Technologies and
accepted by you. AVG Technologies’ failure to insist upon or enforce strict
performance of any provision of this Agreement shall not be construed as a
waiver of any provision or right.
The parties desire and intend that all of the provisions of this
Agreement be enforceable to the fullest extent permitted by law. If any
provision of this Agreement or the application thereof to any person or
circumstances is, to any extent, construed to be illegal, invalid or
unenforceable, in whole or in part, then such provision will be construed in a
manner to permit its enforceability under applicable law to the fullest extent
permitted by law. In any case, the remaining terms of this Agreement or the
application thereof to any person or circumstance, other than those that have
been held illegal, invalid or unenforceable, will remain in full force and
g. Governing Law
This Agreement will be governed by the laws of the State of
Delaware. The exclusive jurisdiction for any dispute will be state or federal
courts sitting in the State of Delaware.
h. Export Controls
You acknowledge that portions of the Software may be of U.S.
origin. You agree to comply with all applicable U.S. and international laws
governing export and reexport of the Software, including the U.S. Export
Administration Regulations, as well as end-user, end-use and destination
restrictions issued by U.S. and other governments.
This Agreement was originally prepared in the English language.
Although AVG Technologies may provide one or more translations for your
convenience, the English version will control in the case of any conflict or
include UNIX password, and DES, encryption developed by Berkeley. The following
copyright notice applies:
(c) 1989, 1993
Regents of the University of California. All rights reserved.
code is derived from software contributed to Berkeley by
and use in source and binary forms, with or without
are permitted provided that the following conditions
Redistributions of source code must retain the above copyright
notice, this list of conditions and the following disclaimer.
Redistributions in binary form must reproduce the above copyright
notice, this list of conditions and the following disclaimer in the
documentation and/or other materials provided with the distribution.
Neither the name of the University nor the names of its contributors
may be used to endorse or promote products derived from this software
without specific prior written permission.
SOFTWARE IS PROVIDED BY THE REGENTS AND CONTRIBUTORS ``AS IS'' AND
EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
DISCLAIMED. IN NO EVENT SHALL THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS
SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.