Email Builder End-User License Agreement
These terms and conditions of using the Email Builder software (the “Software”) created by Sojourn Solutions, LLC 7000 Calmont Avenue Suite 100 Fort Worth, TX 76116 (the “Licensor”), constitute the legally binding contract between the Licensor and an entity using the Software (the “Licensee”). The installation, launch and use of the Software signify the acceptance of the terms and conditions of the license.
Object of the License
- The license pertains to the use of the Software in a version for one workstation or a number of workstations (such number to be agreed between the licensor and the licensee).
- The Licensor represents that it holds the right to grant to the Licensee a non-exclusive, non-transferrable, non-sub licensable license to the Software for an indefinite period of time.
- These terms and conditions specify the rights which the licensor grants to the Licensee to use the software.
- The provisions hereof shall also be applicable to the use of:
- new editions of the Software that will be made available to the Licensee in the period of 12 months of the date of concluding this contact, as part of the fee for granting the license, and then as part of the fee for customer support and technical support;
- modifications of the Software that will be created at the individual request of the Licensee.
Representations and Obligations of the Parties
- The Source Code and structural database of the Software constitute the business secret of the Licensor and they may disclosed and used in their entirety or in any part only on the basis of separate agreements.
- The Licensee shall have no right to modify the Software without the prior written consent of the Licensor. “Modification” is to be understood as activities other than the activities permitted in the documentation. Specifically, modification shall mean activities that are performed in order to or that allow to discover the source code or databases of the Software, decompiling, reproducing, or changing the source code or databases of the Software.
- The Licensee shall have no right to execute a copy of the Software other than expressly indicated in the License.
- The Licensee shall not disclose the Software to third parties save for legal and financial advisors providing services for the benefit of the Licensee as well as vendors cooperating with the Licensee in respect of exchanging data as part of the functions of the Software intended for this purpose.
- The Licensee shall not transfer to third parties the rights obtained hereunder unless such transfer occurs by virtue of law by way of general succession and shall not execute pledge contracts pertaining to the Software or the right to use the Software.
- In the event of the Licensee ordering third parties to prepare an interface to allow the transfer of data between the Software and another IT system, at the request of the Licensee, the Licensor shall provide a description of data structure that ensures such data is transferred to the Software and shall grant other information that is necessary to ensure cooperation.
- Licensing and using the Software in accordance with this License shall not infringe copyright (the Software is free from legal defects), patent rights, or any other rights, including rights to restricted designs and rights held by third parties.
Grant of License
- The License is granted as of the day the License Fee for the first month of the effective term of the License has been paid.
- The License shall be granted without territorial restrictions, for an indefinite or definite period of time.
- As of this date the Licensor shall grant to the Licensee a license certificate as well as license scripts and functional documentation about the Software.
- The Licensee shall be entitled to use the Software together with the documentation in the following fields of exploitation:
- storing into computer memory,
- launching, storing and screening the Software,
- multiplying and recording in the scope specified in clause 5,
- using for the purposes of activity conducted by the Licensee,
- storing, multiplying for own purposes, screening, printing the documentation of the Software,
- The Licensor grants consent to the preparation of one back-up copy for the purposes of record-keeping. The back-up copy may not be used simultaneously with the Software.
- The Licensee may prepare printed copies of the documentation if this serves to facilitate the legal use of the Software.
- The Licensee may not cede, rent, lease the Software, create derivative software nor use the Software in any other manner than provided for herein.
- The Licensor guarantees that the Software shall operate substantially in conformity with the description specified in the documentation. The guarantee shall not mean, however, that the Software will operate without any errors or interruptions and shall not mean that the Licensor will correct all errors in the Software.
- The provisions of clause 1 shall be excluded in the case of:
- creating a translation (decompilation) of the object code of the Software by persons other than those authorized by the Licensor,
- introducing changes to the Source Code of the Software by persons other than those authorized by the Licensor,
- performing any other actions that have not been expressly permitted in the documentation.
- To the extent permitted by law, this guarantee is exclusive and supersedes any other, either express or implied, guarantees or conditions, including guarantees or conditions regarding merchantability, satisfactory quality or fitness for a particular purpose. In particular, the parties exclude the application to the Contact of the provisions of the Civil Code covering the liability of a party on account of warranty and Article 55 of Copyright and Related Rights Act of 4 February 1994 (Dz.U. of 2006, no. 90, item 631, uniform text, as amended).
Controlling the Use of the Software
- The Licensor shall be entitled to control the compliance of using the Software by the Licensee with the License by any means that shall be justified for the purposes of executing such control and, the Licensee shall be obliged to ensure that the Licensor is able to execute such control.
- In case the Licensee violates the terms and conditions of this license, the Licensor shall request that the Licensee stop the violation, setting a 7-day term, and after the ineffective lapse of this term the Licensee shall pay to Licensor the amount of USD 100,000 (one hundred thousand US dollars) in liquidated damages for each case of violation of the license. The payment of liquidated damages shall not exclude the right of the Licensor to seek compensation under general rules up to the full amount of suffered damage. Moreover, in the case of violating the provisions of the license, the Licensor shall be entitled to terminate this License with immediate effect.
Liability and Confidentiality
- The Licensor shall not be liable for any damage that is not adequately causally linked to the reason of its occurrence, for special damage, for personal injury as well as for lost benefits, loss of, damage to, or distortion of data, or for loss of the possibility to use data, loss of reputation or renown and for any other indirect and consequential damage. The total liability of the Licensor for any damage that occurred in connection with the use of the Software (including in connection with installation or uninstallation of the Software) shall be limited to the amounts paid to the Licensor for the license to use the Software within the first year of effective term of the License.
- The Licensee shall be obliged to keep secret technical and commercial information regarding the Software also after the termination of this License. In particular, information of a technical nature and commercially sensitive information of the Licensor, regarding above all the Software, but also the products, procedures and prices, activity, financial standing, type of products offered and the manner of performing production activities as well as any other information granted to the Licensee by the Licensor, or to which the Licensee gained access due to the granted license, shall be deemed confidential information.
- The provisions of Polish law, in particular the provisions of the Civil Code and Copyright and Related Rights Act of 4 February 1994 (Dz.U. of 2006, no. 90, item 631, uniform text, as amended) shall be applicable to this License.
- Any disputes that are impossible to resolve by negotiation shall be settled by a common court having jurisdiction over the Licensor's registered office.