End User License Agreement
For the purpose of this Agreement, “Services ” means services of the Licensor’s proprietary web based software product, namely Mailpunch hosted on the Website made available for download in installable form to you together with any update or upgrade, when and if made available by the Licensor to all its customers including Licensee. The Services mean and include email marketing services.
BY CLICKING ON THE “I AGREE” (OR SIMILAR BUTTON) AND USING THE SERVICES, YOU INDICATE YOU ASSENT TO THE FOLLOWING TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEEMENT, DO NOT INSTALL, USE OR ACCESS THE SERVICES.
“Licensor”, “we”, “us” and “our” shall mean TSL Consulting Pvt Ltd.
1.1 Subject to the terms and conditions of this Agreement, the Licensor hereby grants you a personal, limited, non-exclusive, non-transferable and non-sublicensable license to use the Services and access of the Website in the manner permitted by the terms of this Agreement solely for your internal business purpose commencing from the date of payment of the subscription fees paid by Licensee.
- ACCOUNT MANAGEMENT
As a condition for using the Services, Licensee is required to register with the Licensor and share your email address. The Licensor will provide a password and enter your email address. You must ensure to provide the Licensor with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You shall be responsible for maintaining the confidentiality of your account and password.
- LICENSE RESTRICTIONS
3.1 You shall not copy, modify, distribute, disassemble, de-compile or reverse engineer or otherwise attempt to derive the source code of the Services or permit or encourage any third party, to do so.
3.2 You shall not permit any third party to access the Services, except as expressly provided in this Agreement.
3.3 You shall not defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others and Licensor, directors, employees or representatives, by using the Services;
3.4 You shall not publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information while using the Services;
3.5 You shall not try to hack, crash or sabotage the Services.
3.6 You shall not allow third parties to access or use the Services, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements.
3.7 You shall not sell, resell, rent or lease the Services for timesharing or service bureau purposes, or otherwise use the Services on behalf of any third party.
3.8 You shall not adapt, alter, publicly display, publicly perform, translate, embed into any other product, or otherwise create derivative works of, or otherwise modify the Services.
3.9 You shall not use the Services in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Services.
3.10 You shall not use the Services for performing comparisons or other “benchmarking” activities, either alone or in connection with any Services (and you will not publish or disclose any such performance information or comparisons);
3.11 You shall not interfere with or disrupt the integrity and performance of the Services.
3.12 You shall not copy any features, functions or graphics of the Services.
3.13 You are forbidden to transmit unsolicited commercial email (spam) by using the Services. Repeated violations or failures to comply with this anti-spam policy will result in termination of your access to the Services. You agree and acknowledge that, we shall not be held liable for any claim that may arise due to your violation of this anti-spam policy.
Upon expiry of the Free Service, you will be able to access the Services once the Licensee has paid the subscription fees as may be specified by the Licensor as per the Terms (“Subscription Fees”).
- PROPRIETARY RIGHTS
5.1 You acknowledge and agree that the Services, including without limitation the Services’ sequence, structure, organization, source code and applicable documentation contains valuable trade secrets and other intellectual property of the Licensor, its suppliers or its licensors and is considered Licensor’s confidential information. The Services is licensed and not sold to you, and no title or ownership to such Services or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Services and all intellectual property rights therein are the exclusive property of the Licensor, its suppliers or its licensors, and all rights in and to the Services not expressly granted to you in this Agreement are reserved. Licensor owns all copies of the Services, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future property of the Licensor, except to the extent necessary for users to use the Services as expressly permitted under this Agreement.
5.2 The copyright, trademark, and other proprietary rights notices contained or incorporated in the Services may not be removed, altered, or added to in any way.
You acknowledge that the Services may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Services. Licensor will be free to use for development, diagnostic, compliance monitoring, and corrective purposes any data and information it so collects.
7.1 The Services provided under this Agreement contains valuable trade secrets and is the confidential information of the Licensor. You shall not disclose, provide or otherwise make available the Services to any third party, except as expressly granted under this Agreement.
7.2 You agree to use all commercially reasonable precautions to protect the confidentiality of the Services and shall secure from all third parties having access to the Services, per the terms of this Agreement, commitment to maintain the Services in confidence.
7.3 You agree that under no circumstances the Licensor or its affiliates or subsidiaries shall be held responsible or liable for any loss, damage or harm caused due to your reliance on information obtained from the Services.
This Agreement will commence upon payment of the Subscription Fees by the Licensee and shall remain in force till the time the Licensee uses the Services as per the Subscription Fees paid.
You will defend, indemnify and hold harmless the Licensor from and against any loss, cost, liability or damage, including attorneys’ fees, for which Licensor becomes liable arising from or relating to any claim relating to your data, including but not limited to any claim brought by a third party alleging that your data, or your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.
- WARRANTY DISCLAIMER
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR, ITS SUBSIDIARIES AND AFFILIATES, DO NOT REPRESENT OR WARRANT TO THAT 1) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, 2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERRORS, 3) ANY INFORMATION OBTAINED AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. LICENSOR FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND LICENSOR IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS OR COMMUNICATION OR DELAY, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES .
IN NO EVENT WILL THE CUMULATIVE LIABILITY OF THE LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE SUBSCRIPTION FEES PAID BY LICENSEE FOR THE SERVICES PRECEDING THIRTY (30) DAYS OR INR 1000/- WHICHEVER IS LESS FROM THE DATE THE CLAIM AROSE. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THIS AGREEMENT BETWEEN YOU AND THE LICENSOR. LICENSOR WOULD NOT PROVIDE THE SERVICES TO YOU ABSENT SUCH LIMITATION.
- General Provisions:
12.1 This Agreement along with other policies referred under this Agreement, constitutes the entire or sole legal agreement between you and Licensor and shall govern the use of the Services and shall supersede and prevail over any prior agreements, whether oral or written, regarding subject matter hereof.
12.2 If any court of law, having the jurisdiction to decide on this matter, rules that any provision contained under this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
12.3 Licensor shall have a right to assign this Agreement to its affiliates or any third parties at any time without notice to you.
12.4 This Agreement shall be construed and governed by the laws of India, without regard to principles of conflict of laws. Any dispute arising, between You and Licensor shall be submitted to the arbitration to be conducted in Pune, India in English language, in accordance with the Rules of Arbitration and Conciliation Act,1996 by a sole arbitrator, who shall be appointed by the Licensor and the award made in pursuance thereof shall be binding on the parties. The dispute resolution and arbitration process mentioned in this Section will not prohibit parties from approaching the courts for appropriate interim reliefs. Parties further agree that the courts in Pune, India shall have an exclusive jurisdiction over such disputes.
12.5 Any waivers and modifications must be in writing and signed by both parties. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
12.6 By registering your details with Licensor, you agree that we may contact you with important information relating to the Services.
12.7 No agency, partnership, joint venture, or employment is created between you and the Licensor as a result of this Agreement, and you do not have any authority of any kind to bind Licensor in any respect whatsoever.