THIS IS A LEGAL AGREEMENT between you (either an individual or an entity) and e3 Software, LLC ("e3 Software"). By clicking on the "Agree" button, you are agreeing to be bound by the terms and conditions of this License Agreement. If you do not agree to the terms and conditions of this License Agreement, do not click on the "Agree" button.
1. Grant of Limited License.
e3 Software grants to you the non-exclusive, limited right to install and use the e3 Software software program downloaded (the "Software"). The license permits either (a) multiple users to install and use the Software on a single machine; or (b) a single user to install and use the Software on multiple machines. However, a single license does not allow multiple users to ever use the Software on multiple machines, regardless of whether such use is concurrent.
2. Copyright.
The Software is owned by e3 Software and is protected by United States copyright laws and by international treaty provisions. You should therefore treat the Software like any other copyrighted material (such as for example, books or musical recordings). Among other things, copyright laws prohibit you from making derivative works of the Software. You may, however, make copies of the Software solely for your individual and personal use on multiple computers, provided that you include all copyright and proprietary rights notices on any copies. Notwithstanding the foregoing, you may not make copies for use on multiple machines if multiple users (including employees, agents, or contractors) will use those machines unless you purchase a corresponding number of seat licenses.
3. Other Restrictions.
3.1 You may obtain a Registration Code for your copy of the Software by purchasing a software license at https://order.kagi.com/?ORD. Select features of the Software remain disabled until you have obtained a Registration Code by purchasing a software license. You may not copy, sell, rent, loan, lease, sublicense, or redistribute the Registration Code to third parties.
3.2 You may modify, reverse-engineer, decompile, or disassemble the Software. However, you may not do so for the purpose of enabling features that are to remain disabled until a Registration Code is entered (i.e. circumventing the Registration Code system) or for the purpose of circumventing any of the terms of this License Agreement or any other provision of law.
3.3 You may not claim that the Software is yours, and you may not use the name e3 Software to endorse or promote products derived from the Software without prior written permission.
3.4 You must use the Software at all times in a manner that is consistent with the software licenses granted to you by other companies that have provided software for your computer. For example, the Software is designed to be used with the Mac OS X operating system, and so you may not use the Software in a manner inconsistent with the Mac OS X license agreement between you and Apple Computer, Inc.
3.5 You may not distribute copies of the Software, in whole or in part, to any third party, nor may you use, rent, loan, sublicense, or lease the Software to third parties. You further may not use the Software to act as a service bureau or application service provider.
4. Warranties and Limitation of Liability.
e3 Software provides a thirty (30) day money-back guarantee on the Software. If you are dissatisfied with the Software for any reason, e3 Software will refund your money if you return the Software and all copies to the place of purchase within thirty (30) days of the date of the original purchase. EXCEPT FOR THE FOREGOING THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. E3 SOFTWARE FURTHER DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT E3 SOFTWARE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR.
IN NO EVENT SHALL E3 SOFTWARE OR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION, MARKETING, DISTRIBUTION, OR DELIVERY OF THE SOFTWARE, BE LIABLE FOR ANY DAMAGES WHATSOEVER; INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, FOR BUSINESS INTERRUPTION, FOR LOSS OF BUSINESS INFORMATION, OR FOR OTHER MONETARY LOSS, ARISING OUT OF THE USE OF THE SOFTWARE OR THE INABILITY TO USE THE SOFTWARE, EVEN IF YOU HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL E3 SOFTWARE BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES WHATSOEVER, WHETHER IN A CONTRACT ACTION, NEGLIGENCE OR OTHER TORT ACTION, OR OTHER CLAIM OR ACTION, ARISING OUT OF, OR IN CONNECTION WITH, THE USE OR PERFORMANCE OF THE SOFTWARE OR DOCUMENTS AND OTHER INFORMATION PROVIDED TO YOU BY E3 SOFTWARE, OR IN THE PROVISION OF, OR FAILURE TO PROVIDE, SERVICES OR INFORMATION.
Because some states of the United States and some countries do not allow the exclusion or limitation of the liability for consequential or incidental damages, the above disclaimer may not apply to you. Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you downloaded or otherwise received the Software.
5. Your Warranty to e3 Software.
You warrant that all individuals having access to the Software will observe and perform all the terms and conditions of this License Agreement. You shall, at your own expense, promptly enforce the restrictions in this License Agreement against any person who gains access to your copy of the Software (i.e. the copy you obtain upon agreeing to this License Agreement or any other lawful copy you have made from this copy) with your permission or while your employee and who violates such restrictions, by instituting and diligently pursuing all legal and equitable remedies against him or her. You agree to immediately notify e3 Software in writing of any misuse, misappropriation or unauthorized disclosure, display or copying of the Software that may come to your attention. You agree to indemnify and hold harmless e3 Software from any and all claims resulting from your use of the Software or breach of this Agreement.
6. Terms of Service.
If you decide you wish to purchase a software license, we require that you provide us with certain billing information that is personal to you ("Personal Information"). That Personal information includes your name, address and credit card number and may also include other information such as your email address. At time of purchase, this Personal Information is securely transmitted to e3 Software's authorized payment processor, Kagi, 1442-A Walnut Street #392, Berkeley, CA 94709. No credit card information is stored beyond the lifetime of the transaction.
To the extent e3 Software may access Personal Information, e3 Software will not transmit Personal Information voluntarily to any third party without your express consent. Your Personal Information remains in your full control.
7. e3 Delivery Service
7.1 e3 Software provides to you, as an optional pay-per-use service ("the Service"), the ability to use e3 Software email servers to deliver email. The Service is available for your use only upon purchase of a license for Direct Mail Pro. Upon purchase of a Direct Mail Pro license, you are provided with an e3 Delivery Service account including a number of complimentary email credits. Your account is debited one email credit per recipient for each message sent using the Service. Once you have exhausted your available email credits, you can purchase additional credits for a fee. All prices relating to the Service are subject to change at any time with or without notice. e3 Software agrees to honor the price offered at time of most recent email credit purchase for the life of the account. Unused email credits can be refunded at any time.
7.2 You represent, covenant, and warrant that you will use the Service only in compliance with the Agreement and all applicable laws (including, but not limited to, policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless e3 Software against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from alleged violation of the foregoing or otherwise arising from or relating to your use of the Service. Although e3 Software has no obligation to monitor the content provided by you or your use of the Service, e3 Software may do so and may remove any such content or prohibit any use of the Service it believes may be (or is alleged to be) in violation of the foregoing.
7.3 e3 Software will not use any of your mailing lists or any other information for any other purposes than those intended with the Service. Your subscriber information will not be shared with any other parties. e3 Software will not use your subscriber information for the purpose of sending unsolicited commercial email.
7.4 e3 Software may terminate this Agreement or access to the Service at any time with or without cause, and with or without notice. e3 Software shall have no liability to you or any third party because of such termination.
7.5 USE OF THE SERVICE AND ANY RELIANCE BY YOU UPON THE SERVICE, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. e3 Software DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, THE SERVICES ARE PROVIDED "AS IS" AND e3 Software DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Service shall be for e3 Software to use commercially reasonable efforts to adjust or repair the Service.
8. Email and Permission Practices
8.1 The Software may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state, or other laws that may apply in your local jurisdiction is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights. You may not use the Software to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns. You may not use the Software to send email campaigns that link to or display nudity, obscene content, gambling-related content, pharmaceutical-related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
8.2 All email sent using the Software must follow the rules of the federal CAN-SPAM act. Every email must contain an "unsubscribe" link or other mechanism that allows recipients to remove themselves from your mailing list. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message. You are responsible for monitoring, correcting, processing unsubscribe requests within 10 days, and updating the email addresses to which messages are sent using the Software.
8.3 You agree to use only permission-based lists. You cannot mail to purchased lists, distribution lists, newsgroups, or spam email addresses.
8.4 You are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry norms.
9. Export Control Laws.
You agree to comply with all laws, rules and regulations applicable to the export of the Software. Specifically, you shall not export, re-export or transship the Software, or the direct product thereof, in violation of any United States laws and regulations which may from time to time be applicable. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Order. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
10. Injunctive Relief.
Because of the unique nature of the Software, you understand and agree that e3 Software will suffer irreparable injury in the event you fail to comply with any of the terms of paragraph 3 of this License Agreement and that monetary damages may be inadequate to compensate e3 Software for such breach. Accordingly, you agree that e3 Software will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement.
11. Termination.
You may terminate this Agreement at any time. e3 Software may immediately terminate this License Agreement if you breach any representation, warranty, agreement or obligation contained or referred to in this License Agreement. Upon termination, you must dispose of the Software and all copies or versions of the Software by destroying the Software. The provisions of Sections 3, 4, 5, 6, 7, 8, 9 and 11 of this License Agreement shall survive termination of this Agreement.
12. Miscellaneous.
If any litigation is brought to enforce this License Agreement, or arises out of this License Agreement, and in the case that e3 Software is the prevailing party, e3 Software shall be awarded its reasonable attorneys' fees together with expenses and costs incurred in such litigation. This Agreement shall be governed by the laws of the State of Utah, but not including the 1980 United Nations Convention on Contracts for International Sale of Goods. Venue for any action under this Agreement shall be in Provo, Utah. You consent to the personal jurisdiction of the courts of such venue. This License Agreement is the complete agreement between e3 Software and you and supersedes all prior agreements, oral or written, with respect to the subject matter hereof.
13. U.S. Government Restricted Rights.
The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at 48 CFR § 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights 48 CFR § 52.227-19, as applicable. Manufacturer is e3 Software, LLC, 251 N. University Ave., Provo, Utah 84601.
If the Commercial Computer Software Restricted Rights clause at 48 CFR § 52.227-19 or its successors apply, the Software constitutes restricted computer software as defined in that clause and the Government shall not have the license for published software set forth in subparagraph (c)(3) of that clause.
The Software (i) was developed at private expense, and no part of it was developed with governmental funds; (ii) is a trade secret of e3 Software for all purposes of the Freedom of Information Act; (iii) is "restricted computer software" subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (iv) in all respects is proprietary data belonging solely to e3 Software.
COPYRIGHT NOTICE. Copyright (c) 2007-2008 e3 Software, LLC, 251 N. University Ave., Provo, Utah 84601. All rights reserved. Any rights not expressly granted in this License Agreement are reserved.