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1. USE
You (an entity or a person) may use the following Public.Class software products (individually and collectively, "the Software"), in the quantity purchased, if you meet the following conditions. In addition you may make one (1) archival copy of the Software.
smsPULSE for Windows and smsPULSE for Domino are licensed on a per server basis. smsPULSE requires that licensed copy of Lotus Domino or Lotus Notes is installed on the smsPULSE computer.
You may not use the software to process text messages on behalf of another company.
smsPULSE provides the customer with the functionality to enable the Customer to change the field of SMSs that it sends using the Services, subject to the terms and conditions of this agreement. This functionality is not guaranteed and not available to all destinations. For the duration of this Agreement the Customer shall only use the Functionality in accordance with the terms and conditions of this agreement and the Service Agreement; for lawful purposes; in accordance with all applicable local, national and international laws, regulations and codes of conduct; and for the purposes for which they are designed. The Customer shall not do anything which violates any terms and conditions of this agreement or the Service Agreement; send junk SMS messages, spam or any unsolicited messages (commercial or otherwise); make any misrepresentation including (without limitation); deceive, mislead, defraud or otherwise make misrepresentations to any person regarding any fact or circumstance; impersonate or attempt to impersonate or otherwise misrepresent its identity to any person for whatever purpose or create a false identity mobile phone address or header; change the content of communications received by it and thereafter forwarding same to others without indicating the nature of the changes; and forge or otherwise manipulate origination details and data on any electronic data message with a view to disguising or deleting the origin of anything transmitted using the service; transmit anything (including ,without limitation, words and images) which is defamatory, discriminatory, obscene, lewd, offensive, threatening, abusive, harassing, harmful, hateful or which contains child or violent pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s rights regardless of whether such content is accessed, transmitted, propagated, distributed, created or stored in a public or private context; The customer will be responsible for all users of the software linked to the customer’s installation.
smsPULSE for Windows or smsPULSE for Domino (Server Based)
You must acquire one copy of the Program for each "Server" from which the Program will be installed. A "Server" is defined as a central processing unit ("CPU"), or group of CPUs, that accesses its or their own individual non-cache Random Access Memory ("RAM"), whether or not the CPU or group of CPUs are used in a clustered environment. The software may only be installed on a server in the country in which it was purchased.
smsPULSE MM for Windows smsPULSE MM for Domino (Server Based)
The MM version of the smsPULSE server is available as an optional extra to the standard smsPULSE server. You must acquire one copy of the Program for each "Server" from which the Program will be installed. A "Server" is defined as a central processing unit ("CPU"), or group of CPUs, that accesses its or their own individual non-cache Random Access Memory ("RAM"), whether or not the CPU or group of CPUs are used in a clustered environment. The software may only be installed on a server in the country in which it was purchased.
All machines where smsPULSE is installed, whether it is running or not, must be licensed.
2. RESTRICTIONS
Except as expressly provided in Section 1, you may not alter, merge, modify or adapt the Software in any way including reverse engineering, disassembling or de-compiling. You may not sell, distribute, loan, rent, lease, license or otherwise transfer the Software or any copy; except, you may permanently transfer the Software (including all prior versions) provided you transfer the Software Agreement and all documentation and media and you do not retain any copies. If the Software is demonstration and evaluation ("D&E") software, you may not transfer the Software for commercial purposes. If you are using the Software in any country in the European Community, the prohibition against altering, merging, modifying or adapting the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. If you seek interface information within the meaning of Article 6.1.b of that Directive, you should initially approach Public.Class.
3. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights in the Software and user documentation are owned by Public.Class or its suppliers and are protected by applicable intellectual property laws (including patent, trademark and copyright laws) and international treaty provisions. Public.Class retains all rights not expressly granted.
4. LIMITED WARRANTY
For ninety (90) days from your date of purchase, Public.Class warrants that:
(i) the Software will substantially conform to the applicable user documentation and (ii) that the magnetic media on which the Software is distributed and the user documentation (if any) are free from defects in materials and workmanship. Public.Class will, at its option, refund the amount you paid for the Software or provide you with corrected items at no charge provided that the defective item(s) is returned to Public.Class within ninety (90) days from the date of purchase. Any misuse or unauthorized modification of the Software will void this limited warranty. Except as specifically provided herein, Public.Class makes no warranty, representation, promise or guarantee, either express or implied, statutory or otherwise, with respect to the Software, user documentation or related technical support, including their quality, performance, SMS delivery, merchantability or fitness for a particular purpose.
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The warranty and remedies set forth herein are exclusive and in lieu of all others, oral or written, express or implied. This warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction.
5. LIMITATION OF LIABILITY
Because software is inherently complex and may not be completely free of errors, it is your responsibility to verify your work and to make backup copies. In no event will Public.Class or any of its licensors be liable for indirect, special, incidental, tort, economic, cover or consequential damages arising out of the use of or inability to use Public.Class (or any of its licensors') products or services, including, without limitation, damages or costs relating to the loss of profits, business, goodwill, data or computer programs, even if advised of the possibility of such damages. In no case shall Public.Class or any its licensors' liability exceed the amount paid by you for the Software out of which such claim arose.
This limitation on monetary damages will not apply to claims relating to death or personal injury which arise out of products deemed to be consumer goods under applicable law. Some states, provinces and other jurisdictions do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above exclusion or limitation may not apply to you. However, in appropriate jurisdictions, Public.Class limits its liability, according to the terms of this Agreement, to the extent permissible at law.
Additional terms applicable only in Australia. Nothing in this Agreement operates to exclude, restrict or modify the application of any of the provisions of the Trade Practices Act 1974 or any equivalent state or territory legislation, the exercise of a right conferred by such a provision, or any liability of Public.Class for a breach of a condition or warranty (including but not limited to a condition or warranty in relation to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption) implied by such a provision. To the extent that it is able to do so, Public.Class expressly limits its liability for any breach of a condition or warranty under this Agreement or implied by virtue of any legislation to one of the following, the choice of which is to be at Public.Class's sole discretion: (i) the replacement of the Software or the supply of equivalent software; or (ii) the payment of the cost of replacing the Software or of acquiring equivalent software.
6. PAYMENT TERMS
All product and SMS credits are provided on strict payment before delivery basis. We may choose at our discretion to deliver a product prior to receipt of funds to our current bank account. Payments using foreign cheques carry an additional 4% charge. Payment using an internet merchant such as PayPal or Google Wallet carry a 3.4% surcharge or the charge by these merchants at the time of transaction. Any transmission fees when using IBAN or similar are payable by the client.
7. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and/or user documentation are provided with RESTRICTED AND LIMITED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14 (June 1987) Alternate III(g)(3) (June 1987), FAR 52.227-19 (June 1987), or DFARS 52.227-7013 (c)(1)(ii) (June 1988), as applicable.
8. LICENSING AND MAINTENANCE
smsPULSE licensing is based on a per server model, with variations based on the number of employees, size of GSM/CDMA arrays, number of SMPP channels and domains served by the servers. The following rules apply:
- Upon purchasing the software, the first license issue date is fixed and thereafter be referenced as the "support date"
- All additional licenses date are adjusted to the initial license support date
- The free support period is provided in respect of the first license only, and lasts for the maximum period of one year (from the support date)
- Additional licenses require a maintenance agreement from day of purchase, unless the first year from the support date has not been reached yet, in which case the support charge will be proportionally adjusted to the original support date
- Maintenance renewal lapses after 60 days from the renewal support date. If maintenance has lapsed, an additional charge of 10% is levied on renewal. Clients may renew without penalty if they take the upgrade for an extra year
- Maintenance charges must be continuous
- Support date may be changed by mutual agreement by extending a new support period
- Charges apply to all licenses purchased
- Maintenance purchase is optional but recommended
- An active maintenance contract provides for software update, when these become available, and free email and on-line support
- Installing software updates on a server which is not under maintenance will render the software inactive, if the software update date is after the support date
- The support date is always visible on your account record on smsPULSE.com, and when displaying the server status. If your server shows a different support date the one on your internet account prevails
- The smsPULSE.com server send three emails to invite clients to renew maintenance. The last email (or 3rd) notifies you on automatic termination of maintenance
- If the licensee company size changes due to merger or acquisition the software license must be re-graded to accommodate the new size.
9. GENERAL
No Public.Class dealer, distributor, agent or employee is authorized to make any modification or addition to this Agreement.
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