tummy.com Software and User License Agreement
Redistribution or rental not permitted.
These terms apply to QmailInstall
The intent of this license is to provide to you, for your use, the
software QmailInstall. This license explains that you are gaining only
the right to use QmailInstall (as long as you accept this agreement,
and pay for the QmailInstall license) on the number of computers you
have licensed it for.
It does not grant any rights or responsibilities beyond the use of
QmailInstall. So you can't resell it, change it, give it away, or publish
it. If you would like to do any of those things, please contact tummy.com,
and we will be happy to negotiate with you.
General terms and conditions
My installing or using the software products identified above that are
listed on the Product Schedule, Quotation and Offer form, or Invoice
(the "Products"), the individual or entities licensing of the Product(s)
("Licensee") is consenting to be bound by and is becoming a party to
this Agreement. If Licensee does not agree to all of the terms of this
Agreement, tummy.com, ltd. must be notified by email to sales@tummy.com
at the earliest possible time, and Licensee must not install or use
the software. (Depending on the method of acquisition, the licensed
products will be listed on the product's schedule, quotation and of
reform, or invoice. The term "Product Schedule" shall be used herein
to refer to whichever of these documents is applicable.)
1. Agreement. The "Agreement" governing Licensees use of the Product(s)
consists of these General License Terms and Conditions ("General Terms"),
each set of product specific license terms and conditions which follow
("Product Terms"). If more than one license Agreement was provided
for this product, and the terms vary, the order of precedence of those
license Agreements is as follows: a signed Agreement, a license Agreement
available for review on the tummy.com website, a printed or electronic
Agreement that states clearly that is to proceed to other Agreements,
a printed Agreement provided with a Product, and electronic Agreement
provided with the product. The General Terms apply to all Products on
the Product Schedule, and each set of product terms applies only to the
individual Products identified in the Product Term sheet. All Products
are licensed independently of one another. As used in this Agreement,
"tummy.com", shall mean tummy.com, ltd. In this Agreement "Licensor"
shall mean tummy.com, ltd., except: (i) if Licensee acquired the product
as a bundled component of a third party product or service, then such
third-party shall be Licensor; or (ii) if any third-party software is
included with the product without any license Agreement in any form (no
license in the installer, as an electronic file, or in the box in printed
form), that is of such third-party software shall be governed by this
Agreement, and the term "Licensor," with respect to such third-party
software, shall mean the copyright holder of that software and not
tummy.com. If a third-party license Agreement is provided, then the use of
third-party software product shall be governed by such third-party license
Agreement and not by this Agreement. Any third-party software provided
together with the product is intended for use at Licensee's option.
2. Term and termination. This Agreement shall remain in effect until
terminated in accordance with this Section or as otherwise provided in
this Agreement. Licensee may terminate this Agreement and any time by
a written notice to Licensor. Licensor may terminate this Agreement
immediately in the event of (i) any breach of section 6 by Licensees
or (ii) a material breach by Licensee which is not cured within 30
days written notice by Licensor. Upon termination, Licensee shall
discontinue use and certify as destroyed, or return to Licensor, all
copy of the products. Licensees' obligations to pay accrued charges
and fees shall survive any termination of this Agreement. Within 30
calendar days after termination of the Agreement, Licensee shall pay
Licensor all sums then due and owing.
3. Fees and taxes. If a Licensee is purchasing a license for the products
directly from tummy.com, all fees are exclusive of taxes, with holdings,
duties or levies (collectively herein ("Levies"), however designated or
computed, and Licensee shall be responsible for paying all such Levies
except for taxes based on tummy.com's net income. If Licensee is exempt
from such Levies, Licensee shall provide tummy.com a valid tax or other
Levy exemption certificate acceptable to the taxing or other levying
authority.
4 Records; Audit. Licensee shall maintain accurate records as necessary
to verify compliance with this Agreement. Licensor may conduct one or
more audits to verify such complaints. Audits will be conducted during
normal business hours. All audits shall be conducted Licensor's expense
unless the results establish that Licensee has underpaid Licensor by
more than 5% of the amount actually due, in which case Licensee shall
pay all amounts due and bear the expense of the audit.
5. Proprietary Rights. Title, ownership rights, and intellectual
property rights in the Product(s) shall remain in tummy.com, and/or
its suppliers. Licensees acknowledges such ownership and intellectual
property rights and will not take any action to jeopardize, limit or
interfere in any manner with tummy.com, or its suppliers' ownership of or
rights with respect to the Products(s). The Products(s) are protected
by copyright and other intellectual property laws and by international
treaties.
6. Restrictions. Except as otherwise expressly permitted in this
Agreement, Licensee shall not: (i) modify or create any derivative works
of any product or documentation, including translation or localization
(Licensee's code written to published API's (application programming
interfaces) for the product(s) shall not be deemed derivative works);
(ii) redistribute, encumber, sell, rent, lease, sublicense, use the
Products in a time sharing or service bureau arrangement, or otherwise
transfer rights to any product; (iii) copy any Product (except for an
archival copy) or documentation (copies shall contain all the notices
regarding proprietary rights that were contained in the products were
originally delivered by Licensor);(iv) remove or alter any trade mark,
logo, copyright or other proprietary notices, legends, symbols or labels
and the Product(s); (v) modify any header files or class libraries in
any Product; (vi) use any product on a system with more CPUs to number
licensed, by more users than have been licensed, and more computers than
the number licensed, or by more developers than the number licensed,
as applicable.
7. Limited Warranty. Provided Licensee has paid the applicable
license fees for the Product(s), for 90 days after the date of shipment
to Licensee (date of shipment meaning either the date license were
shipped product on media or the date on which Licensee down loaded the
product from an authorized tummy.com download site) of each Product
(the "Warranty Period"), Licensor warrants that (i) the media on
which the product is delivered will be free of defects in material and
workmanship under normal use; and (ii) and the unmodified Product, when
properly installed and used, will substantially achieve the functionality
described in the applicable documentation. THE EXPRESS WARRANTY SET FORTH
HEREIN CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT(S).
LICENSOR AND ITS SUPPLIERS DO NOT MAKE, AND HEREBY EXCLUDE, ALL OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED
(EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO ANY PRODUCT
OR TEST DATA INCLUDED IN ANY PRODUCT. LICENSOR AND ITS SUPPLIERS
EXPRESSLY DISCLAIMS ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTIES' RIGHTS.
LICENSOR AND ITS SUPPLIERS DO NOT WARRANT THAT THE PRODUCT(S) WILL
MEET LICENSEE'S REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS WHICH
MAY BE SELECTED BY LICENSEE OR THAT THE OPERATION OF THE PRODUCTS WILL
BE SECURE, ERROR FREE OR UNINTERRUPTED AND LICENSOR HEREBY DISCLAIMS
ANY AND ALL LIABILITY ON ACCOUNT THERE OF. THE SECURITY MECHANISMS
IMPLEMENTED BY THE PRODUCT(S) HAVE INHERENT LIMITATIONS, AND LICENSEE MUST
DETERMINE THAT THE PRODUCT(S) SUFFICIENTLY MEET LICENSEE'S REQUIREMENTS.
LICENSOR AND ITS SUPPLIERS SHALL HAVE NO OBLIGATIONS UNDER THIS WARRANTY
PROVISIONS SET FORTH HEREIN IF LICENSEE SUBJECTS THE MEDIA TO ACCIDENT OR
ABUSE; ALTARS, MODIFIES OR MISUSES THE PRODUCT(S); USES THE PRODUCT(S)
INCORPORATED, ATTACHED OR IN COMBINATION WITH NON TUMMY.COM SOFTWARE OR
IN ANY COMPUTER SYSTEM OTHER THAN THAT FOR WHICH THE PRODUCT IS INTENDED;
OR LICENSEE VIOLATES THE TERMS OF THIS AGREEMENT. THE EXTENT OF THE
LICENSER'S DUTY UNDER THIS LIMITED WARRANTY SHALL BE THE CORRECTION OR
REPLACEMENT OF ANY PRODUCT WHICH FAILS TO MEET THIS WARRANTY. IN THE
EVENT OF A BREACH OF THIS WARRANTY, AND IF LICENSEE PROVIDES LICENSE
FOR WITH A WRITTEN REPORT DURING THE WARRANTY PERIOD, LICENSOR WILL USE
REASONABLE EFFORTS TO CORRECT OR REPLACE PROMPTLY AT NO CHARGE TO LICENSEE
THE ERRORS OR FAILURES. THIS IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY
FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES HEREUNDER. NOTWITHSTANDING
THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
IMPLIED WARRANTIES; HOWEVER, THE EXCLUSIONS OF LICENSOR'S WARRANTY IN
THIS LIMITED WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW. THIS AGREEMENT DOES NOT EXCLUDE ANY WARRANTIES THAT
MAY NOT BE EXCLUDED BY LAW AND ANY LIABILITY ARISING HEREUNDER SHALL
BE LIMITED TO THE CORRECTION OR REPLACEMENT OF THE APPLICABLE PRODUCT,
AT LICENSEE'S OPTION.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING
OUT OF THE USE OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE
OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES,
EVEN IF THE ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE
LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE
CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY
PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SOME
OF THE LICENSE FEES PAID TO LICENSOR FOR THE PRODUCT GIVING RISE TO SUCH
DAMAGES, NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY
THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE
LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO
THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ANY DATA INCLUDED
IN THE PRODUCT UPON SHIPMENT FROM LICENSOR IS FOR TESTING PURPOSES ONLY
AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
THE EXTENT OF LICENSOR'S LIABILITY FOR THE LIMITED WARRANTY SECTION
SHALL BE AS SET FORTH THEREIN.
9. Export Control. Licensee agrees to comply with all export laws and
restrictions and regulations of any United States or foreign agency
or authority, and not to export or re-export any Product or any
direct product thereof in violation of any such restrictions, laws
or regulations, or without all necessary approvals. As applicable,
each party shall obtain and bear all expenses relating to any necessary
licenses and/or exemptions with the respect to its own export of the
product from the U.S.
10. High Risk Activities. The Products(s) are not fault-tolerant
and are not designed, manufactured or intended for use or resale
as on-line control equipment in hazardous environments requiring
fail-safe performance, such as in the operation of nuclear facilities,
aircraft navigation or communications systems, air traffic control,
direct life-support machines, or weapons systems, in which the failure
of any product could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). Accordingly,
Licensor and its suppliers specifically disclaims any express or implied
warranties of fitness for High Risk Activities. Licensee agrees that
Licensor and its suppliers will not be liable for any claims for damages
arising from the use of any Product in such applications.
11. U.S. Government End Users. The project is a "commercial item" as that
term is defined in 48 C.F.R 2.101 (Oct. 1995), consisting of "commercial
computer software" and "commercial computer software documentation," as
such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48
C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995),
all U.S. Government End Users acquire the Product with only those rights
set forth herein.
12. Purchase orders. Licensees shall place written purchase orders for
additional unit licenses. If Licensee is purchasing such licenses from
Licensor, the Purchase Order shall include the following information:
(i) reference to the Agreement number on the order form, if applicable;
(ii) a description of each product ordered, quantity and price; (iii)
shipping instructions and destination; (iv) requested delivery date;
(v) bill to address; and (vi) restatement of the payment terms on the
Product Schedule, if applicable.
13. Notices. Any notice required or permitted hereunder shall be in
English, in writing and shall be deemed to be properly given upon the
earlier of (i) actual receipt by the addressee (including facsimile or
e-mail) or (ii) 5 business days after deposit in the mail, postage prepaid,
when mailed by registered or certified airmail, return receipt requested,
or (iii) 2 business days after being via private industry courier to the
respective parties at the addresses set forth in the Order Form or to such
a person or address as the parties may designate in writing. Notices to
Licensor shall be the to the attention of Legal Department, tummy.com,
ltd., 5400 Fossil Court North, Fort Collins Colorado 80525 USA.
14. Miscellaneous. (a) This Agreement constitutes the entire agreement
between the parties concerning a separate matter hereof and supersedes all
prior and contemporaneous agreements and communications, whether oral or
written, between the parties relating to the subject matter hereof, and
all past courses of dealing or industry custom. The terms and conditions
hereof shall exploit prevail exclusively over any written instrument
submitted by Licensee, including purchase order, and Licensee hereby
disclaims any terms therein except for terms therein related to product
description, quantity thereof, pricing therefor, shipment and delivery.
14.(b) this Agreement may be amended only by of writing signed
by an executive vice president of tummy.com and a duly authorized
representatives of Licensee.
14.(c) Except to the extent applicable law if any, provides otherwise,
this Agreement shall be governed by the laws of the State of Colorado,
USA. excluding its conflict of law provisions.
14.(d) Any dispute hereunder will be negotiated between the parties
commencing upon written notice from one party to the other. Settlement
discussions and materials will be confidential and inadmissible in any
subsequent proceeding without both parties' written consent. If the
dispute is not resolved by negotiation within 45 days following such
notice, the parties will offer this dispute to nonbinding mediation
in Colorado. The parties will share the cost of mediation. If the
dispute is not resolved after 45 days of mediation, the parties will
for the dispute to binding arbitration in Colorado. The results of that
arbitration will be final and non-appealable, except that either party
may petition any court of competent jurisdiction in Colorado to review
any decision in relation to intellectual property matters (including the
scope of license rights), vacating or modifying erroneous conclusions
of law or findings of fact not supported by substantial evidence.
The arbitrator may fashion any legal or equitable remedy except punitive
or exemplary damages, which both parties hereby waive. The arbitrator
will render a written decision, which may be entered and enforced by any
court of competent jurisdiction, but which will have preclusive effect
in other matters involving third parties. The losing party will pay
the costs of the arbitration and the reasonable legal fees and expenses
of the prevailing party, as determined by the arbitrator. The parties
will jointly pay arbitration costs pending the final allocation by the
arbitrator. At any point in dispute resolution process, either party
may seek injunctive relief preserving the status quo pending the outcome
of that process. Except as noted, the parties hereby waive any right to
judicial process. The U.S. Arbitration Act will govern the arbitration
process. Absent fraudulent concealment, neither party may raise the
claim more than 3 years after it arises or any shorter period provided
by applicable statutes of limitation. Notwithstanding the foregoing,
Licensor reserves the right to invoke the jurisdiction of any competent
court to remedy or prevent violation of any provision in the Agreement
relating to payment, tummy.com , confidential information or tummy.com
intellectual property.
14.(e) If any dispute arises under this Agreement, the prevailing party
shall be reimbursed by the party for any and all legal fees and costs
associated therewith.
14.(f) This Agreement shall not be governed by the United Nations
Convention on Contracts of the International Sale of Goods.
14.(g) If any provision in this Agreement should be held illegal
or unenforceable by court having jurisdiction, such provisions to be
modified to the extent necessary to render it enforceable without losing
its intent, or severed from this Agreement if no such modification is
possible, and other provisions of this Agreement shall remain in full
force and effect.
14.(h) The controlling language of this Agreement is English. If Licensee
as received a translation of into another language, it has been provided
for the Licensee's convenience only.
14.(i) A waiver by either party of any term or condition of this Agreement
or any breach thereof, in any one instance, shall not waive such term
or condition or any subsequent breach thereof.
14.(j) The provisions of this Agreement which require or contemplate
performance after the expiration or termination of this Agreement shall
be enforceable notwithstanding said expiration or termination.
14.(k) Licensee may not assign or otherwise transfer by operation of law
or otherwise this Agreement or any rights or obligations herein without
prior written consent of Licensor, which will not be unreasonably
withheld.
14.(l) this Agreement shall be binding upon and shall inure to the
benefits of the parties, their successors and permitted assigns.
14.(m) If applicable, this Agreement may be executed in counterpoints
or by facsimile, each of which shall be deemed an original, and all of
which together shall constitute one and the same Agreement.
14.(n) Neither party shall be in default or be liable for any delay,
failure in performance (excepting the obligation to pay) or interruption
of service resulting directly or indirectly from any cause beyond its
reasonable control.
14.(o) the relationship between Licensor and Licensee is that of
independent contractors and neither Licensee nor its agents shall have
any authority to bind Licensor in any way.
14.(p) tummy.com and its suppliers are direct and intended third-party
beneficiaries of this Agreement.
14.(q) If any tummy.com professional services are being provided,
then such professional services are provided pursuant to terms of a
separate Professional Services Agreement between tummy.com, and Licensee.
The parties acknowledge that such services are acquired independently
of the Products licensed hereunder, and that provision of such services
is not essential to the functionality of such Products.
14.(r) The headings to the sections of this Agreement are used for
convenience only and shall have no substantive meaning.
14.(s) Licensor may use Licensee's name in any customer reference list
or any press release issued by the Licensor regarding the licensing
of the product and/or provide Licensee's name and the names of products
licensed by Licensee to third parties.
QmailInstall Product Terms and Conditions
1. Agreement. The Agreement governing Licensees use of the Product(s)
identified above consists of these QmailInstall Product Terms and
Conditions, the General Terms, and, if provided, the (i) Corporate End
User Order Form and Product Schedule or (ii) Quotation and Offer form,
as applicable.
2.License Grant. Subject to payment of applicable license fees, Licensor
grants Licensee a non-exclusive and non-transferable license to use the
executable code version of the QmailInstall Product(s) and accompanying
documentation in the territory of use allowed under the license fee paid
by Licensee (the =93Territory=94), according to the terms and conditions
of this Agreement. Licensee is only entitled to refund if one is offered
by Licensee's place of purchase. Licensee may:
A. For packaged products:
a. Install the QmailInstall Product(s) on only one
computer on a single platform unless Licensee has paid
fees for use by additional users. In that case, for
Products that license on a per-CPU basis, Licensee may
install one copy for every purchased additional license.
If License has purchased a bundled product, Licensee
may install each included Server Product on a different
computer and/or platform. Licensee may also switch its
installation from one platform to another.
b. If the products contain header files, a copy and use
the header filessolely to create and distribute programs
to interface with the server API.
3. Fees. License fees for most Server Product(s) are based in the number
of CPUs accessing certain functionality and/or services of the Product.
$Revision: 342 $
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