WayCoolMail.com End User License Agreement
IMPORTANT – PLEASE READ CAREFULLY
Before reading the articles below, please note the following preliminary terms, which use some of the definitions specified in Article 1 below:
Entering into this Agreement: This End User License Agreement constitutes a valid and binding agreement between Kinetic Web Solutions, d/b/a WayCoolMail.com (“WCM”) and You, as a user, for the use of the WCM Software. You must enter into this Agreement by clicking on the ACCEPT button and register within a proper login and password to use the WCM Software. You hereby agree and acknowledge that this Agreement covers all Your use of WCM Software, whether it be from this installation or from any other terminals where WCM Software will be used by You or by third parties.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by WCM to show Your approval of any foregoing texts and/or to download and use the WCM Software, You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the WCM Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Jurisdiction’s Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the WCM Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, You may not enter into this Agreement and You may not download, install or use the WCM Software. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the WCM Software is allowed.
Article 1 Definitions
In this Agreement the following capitalized definitions are being used, singular as well as plural.
1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with WCM. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
1.3 Documentation: any online or otherwise enclosed documentation provided by WCM.
1.4 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above.
1.5 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the WCM Software, the Documentation, the WCM Website or the WCM Promotional Materials.
1.6 Password: refers to a code You select, which, in combination with the login or User ID, gives You access to Your Account;
1.7 WCM: refers to the company established under the laws of the Commonwealth of Pennsylvania, Kinetic Web Solutions, d/b/a WayCoolMail.com, with its address at 192 West Ridge Pike, Limerick, Pennsylvania, 19468.
1.8 WCM Online Material: the WCM pre-designed template software available for use on the WCM Website..
1.9 WCM Promotional Materials: any and all trademarks, names, signs, logos, banners, WCM Online Material and any other materials, in whatever form, owned and/or used by WCM for the promotion of its company, its products and activities.
1.10 WCM Software: the software used by WCM for direct mail templates, including without limitation the WCM API, UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
1.11 WCM Staff: the officers, directors, employees and agents of WCM or its Affiliates, or any other persons hired by WCM or its Affiliates.
1.12 WCM Website: any and all elements, contents and the ‘look and feel’ of the website available under the URL WayCoolMail.com, – among other URL’s –, from which website the WCM Software can be used.
1.13 Terms of Service: means the agreement between Kinetic Web Solutions, d/b/a WayCoolMail.com and You, for the use of the WCM service;
1.14 User Account: refers to the account with User ID or login and Password that You create for Your use of the WCM Software;
1.15 User ID: refers to a User ID or login You selected, which in combination with the Password, gives access to Your User Account;
1.16 WCM Service: means the payable services provided under the Terms of Service
1.17 You: you, the end user of the WCM Software, also used in the form “Your” where applicable.
Article 2 License and Restrictions
2.1 License. Subject to the terms of this Agreement, WCM hereby grants You a limited, non-exclusive, non-sublicensable, non-assignable, license to use the WCM Software on Your computer, phone or PDA for the sole purpose of personally using the applications provided by WCM and any other applications that may be explicitly provided by WCM. You cannot use the design created by use of the WCM software on the WCM website, for reprinting or any other use except for the mail customized directly on and by the WCM software on the WCM website. For the avoidance of doubt, You are allowed to use WCM Software at work, in accordance with the terms of this Agreement.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, copy, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the WCM Software, applications, or templates or any part thereof.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the WCM Software or any part thereof.
2.4 Third Parties. You acknowledge and agree that the WCM Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the WCM Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the WCM Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with WCM or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to WCM or its Affiliates to enforce any of your rights.
2.5 New Versions of the WCM Software. WCM, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the WCM Software. You acknowledge and agree that WCM has no obligation to make available to You any subsequent versions of the WCM Software without additional purchase by You. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the WCM Software. Furthermore, You acknowledge and agree that WCM, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the WCM Software, without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, at WCM’s discretion, are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. WCM will not accept any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the WCM Software and (2) by the suspension or termination of the license or this Agreement by WCM and/or by You and (3) the mail that You send that was created using the WCM software application or template.
Article 4 Utilization of Your computer
4.1 Protection of Your computer (resources). You understand WCM will use commercially reasonable efforts to protect the privacy and integrity of the computer resources (or other applicable device) You are utilizing and of Your communication through your use of the WCM uploaded data or software, however, You acknowledge and agree that WCM cannot give any warranties in this respect.
Article 5 Confidentiality and Privacy
5.1 WCM’s Confidential Information. You agree to take all reasonable steps at all times to protect and keep strictly confidential any confidential information regarding WCM, its Affiliates, the WCM Staff, the WCM Software and the IP Rights.
5.2 Your Confidential Information and Your Privacy. WCM is committed to respecting Your privacy and the confidentiality of Your personal data. We do not sell or rent Your personal information to third parties for their marketing purposes without Your explicit consent..
Article 6 IP Rights
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the WCM Software are and shall remain the exclusive property of WCM and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in the WCM Software, but may be accessed through use of the WCM Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
6.2 With the exception of IP Rights of WCM and/or its licensors in WCM Software, You retain the intellectual property rights You may have in the mail, materials, or You create which are based on or utilize the WCM templates. You hereby release and covenant not to hold liable WCM or its Affiliates, or any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments or claims (a) pertaining to any intellectual property or mail You develop that is based on, uses, arises in connection with, or relates to the WCM applications, software, or templates. As between You and WCM, WCM and its licensors retain the IP Rights in and to the WCM Software and any derivative works thereto created by or for WCM or its licensors.
6.3 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or WCM’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials, templates, or mail.
Article 7 Term and (Consequences of) Termination
7.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either WCM or You as set forth below.
7.2 Termination by WCM. Without limiting other remedies, WCM may limit, suspend, or terminate this license and Your use of WCM Software, prohibit access to WCM Website and delete Your User Account and/or User ID, with immediate effect, if we think that You are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. WCM shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to the respective User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
7.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You will meet with the conditions as set forth in Article 7.4 below.
7.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the WCM Software and data shall terminate, and (b) will cease any and all use of the WCM Software and data.
7.5 No liability. WCM will not be liable in respect to any damage caused by the termination of this Agreement.
Article 8 Your Representations and Warranties; Indemnification of WCM
8.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the WCM Software.
8.2 Indemnification. You agree to indemnify, defend and hold WCM, Affiliates and the WCM Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the WCM Software.
Article 9 Disclaimer of Warranties
9.1 No warranties. THE WCM SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER; WCM DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE WCM SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. WCM FURTHER DOES NOT REPRESENT OR WARRANT THAT THE WCM SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE.
9.2 Your own Risk. You acknowledge and agree that the entire risk arising out of the use WCM Software remains with You, to the maximum extent permitted by law.
9.3 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
Article 10 Limitation of Liability
10.1 No Liability. YOU ACKNOWLEDGE AND AGREE THAT WCM, ITS AFFILIATES, ITS LICENSORS AND THE WCM STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE WCM SOFTWARE, AS SET FORTH BELOW.
10.2 Limitation of Liability. IN NO EVENT SHALL WCM, ITS AFFILIATES, ITS LICENSORS OR THE WCM STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE THE WCM SOFTWARE, EVEN IF WCM, ITS AFFILIATES OR THE WCM STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE WCM SOFTWARE IS TO CEASE USE OF SUCH WCM SOFTWARE.
10.4 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
Article 11 General Provisions
11.1 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and WCM with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
11.2 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
11.3 No waiver. The failure of WCM at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by WCM.
11.4 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
11.5 Assignment by WCM. WCM is allowed at its sole discretion to assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.
11.6 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
11.7 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the Commonwealth of Pennsylvania.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO LOGIN AND USE THE WCM SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO WCM THE RIGHTS SET FORTH HEREIN.