End-User Product License Agreements

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XMPie™ Software License Agreement

(PDF version can be downloaded above)

READ CAREFULLY: This Software License Agreement is a legal agreement between you (either an individual or a single entity) (“Licensee”) and XMPie Inc., a Delaware corporation, and its direct and indirect Affiliates (collectively, “XMPie” or “Licensor”), for the Software that accompanies this Agreement.  YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING, OR USING THE SOFTWARE.

This EULA applies to: PersonalEffect® 4.6 and above, uDirect® 4.6 and above, uProduce™ Marketing Console 1.5 and uStore® 3.6 and above. (For earlier XMPie software versions, the End User License Agreement in force is the one distributed with that software.)

“Affiliate” means an entity which controls, is controlled by, or is under common control with XMPie Inc., and “control” means ownership or control of more than 50% of the voting rights of an entity.

“Database” means the data source that is used for creating personalized content. It may be in a database form or some other simpler format forms. It is not related to databases that are used internally by the XMPie software. Typical example will be a list of recipients, including names, demographics, and other personal information. It includes also the notions of Assets (such as images or other content elements), whether provided as separate files or within a special database or a special system for managing assets.

“Documentation” means all documentation associated with the Software, in any media, including, without limitation and as applicable, the Software user guide, the hardware requirements, the installation guide, the purchase order, and the XMPie written acceptance of the purchase order.

“Logic” means a set of rules that determine what content or design styles to choose for a given individual. Logic is also known as “Rules”, “Business Logic”.

“Output” means the hard copy printed documents, the rendering of content on web pages, email or SMS messages, and it also means the computer files that encode all the instructions for rendering the final output (e.g., Postscript files for printing).

“Software” means XMPie software program supplied herewith by XMPie or its authorized distributors, the corresponding Documentation, associated media, printed materials and online electronic Documentation.

“Trial Version” means a version of the Software, so identified, to be used only to review and evaluate the Software. The Trial Version may have limited features or might expire after a limited period of time.

2.1. Provided that the consideration set for the Software license is paid and subject to the other terms and conditions of this Agreement, Licensor hereby grants Licensee, and Licensee hereby obtains, for the term of this Agreement, a non-exclusive, personal, license, without right to sub-license, to install and use the Software in strict compliance with the Documentation. 

2.2. Licensee may make one backup copy of the Software, provided that the backup copy is not installed or used for any purpose other than archival purposes.

2.3. The scope of the license granted hereunder is limited to the rights of use expressly set forth in section 2.1 above, and Licensee is not granted any other license or other rights with respect to the Software. Without limiting the foregoing, Licensee may not: (1) decompile, disassemble, reverse engineer or otherwise attempt to identify or discover the Software source code; (2) modify, change, or create a derivative work of any part of the Software, unless otherwise explicitly agreed by XMPie in writing; (3) assign, transfer, lease, rent or share the rights under this Agreement, without Licensor’s prior written consent in each instance; or (4) make any copy of the Software or any part thereof, except as expressly authorized herein.

2.4. Licensee shall not use the Software in a way that violates (or that produces content that violates) any law or the rights of others including, without limitation, laws concerning copyright infringement.  Licensee shall indemnify and hold harmless Licensor and its affiliates from and against any claims, losses or damages arising from a breach of this Agreement.

Licensee hereby acknowledges and agrees that Licensor does not control any database, logic, intermediate products contents and output used with/by the Software and as such cannot and does not assume any responsibility for any of such items. Use of any database, logic, intermediate products contents and output is at Licensee’s sole risk. Without limiting the generality of the above, Licensee shall remain at all times solely responsible for the function, accuracy, reliability, integrity, quality, confidentiality, transmission and/or validity of any database, logic, intermediate products contents and output used by it. Licensee shall indemnify and save harmless Licensor and its directors, officers, employees, representatives and agents ("Related Parties") against all demands, claims, actions, liabilities, losses, costs, damages or expenses whatsoever (including reasonable attorneys’ fees) (“Damages”) asserted against, imposed upon or incurred by Licensor and/or any of its Related Parties resulting from or arising out of the use of any database, logic, intermediate products contents and output, including, without limitations, infringement of third party rights by such use or by such items. 

Licensor warrants only to Licensee that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. Non-substantial variations of performance from the Documentation does not establish a warranty right. Licensee’s exclusive remedy and Licensor's entire liability under this limited warranty shall be, at Licensor's options, to repair or replace the media or any part thereof.  THE EXPRESS WARRANTY SET FORTH ABOVE CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE SOFTWARE. LICENSOR MAKES AND LICENSEE RECEIVES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE. EXCEPT AS SET FORTH IN THIS SECTION 4 LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT THE OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED.   LICENSOR MAKES NO WARRANTY CONCERNING THE COMBINATION OF THE SOFTWARE WITH THE LICENSEE’S OR THIRD PARTY COMPONENTS OR SOFTWARE.   LICENSOR DOES NOT WARRANT THE RESULTS OR ANALYSIS THAT MAY BE OBTAINED BY USING THE SOFTWARE.

5.1. Without derogating from Sections 5.2 and 5.3 below, Licensor will have no responsibility or liability whatsoever to Licensee or any third party for claims or damages arising from (i) the use of the Software not in compliance with its specifications; or (ii) the use of the Software where it has been modified other than by Licensor or with Licensor’s written permission.

5.2. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, WORK STOPPAGE, SAVINGS, OR REVENUES OF ANY KIND, OR FOR LOST DATA, DAMAGE TO OTHER SOFTWARE, COMPUTER FAILURE OR MALFUNCTION OR DOWNTIME, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.3. THE CUMULATIVE LIABILITY OF LICENSOR TO LICENSEE FOR ALL CLAIMS RELATING TO THE SOFTWARE OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY LICENSEE DURING THE TWELVE MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE LIABILITY.

The Software includes proprietary and confidential materials and products of Licensor and its licensors, protected under copyright, patent, trade secret laws and international treaties, and other intellectual property right laws and treaties. Licensee acknowledges and agrees that Licensor and its licensors solely own and shall retain all right, title and interest, including intellectual property rights, in or to the Software. This Agreement does not convey to Licensee an interest in or to the Software but only a limited right of use, revocable in accordance with the terms of this Software License Agreement.

XMPie®, uDirect®, uPlan™, uCreate™, uProduce™, QLingo™, PersonalEffect®, ADOR®, XLIM®, uStore®, uImage®, uProduce™ Marketing Console and other names, logos or icons identifying Licensor and its products are trademarks of Licensor. All other products and/or brand or company names mentioned herein or in the Software Documentation are the trademarks of their respective owners.

This Agreement shall remain in force and effect unless terminated by Licensor in the event of a material breach of this Agreement by Licensee that has not been cured, to Licensor’s satisfaction, within fourteen (14) days of a written notice thereof by Licensor.

Upon termination of this Agreement, the license granted herein shall promptly expire. Licensee shall warrant to Licensor that the Software, any medium thereof and any materials pertaining to the Software have been returned to Licensor. The provisions of Sections 3, 4, 5, 6, 7, 9, 10, 15, 16 and 17 shall survive termination of this Agreement and shall remain in full force and effect.

Licensee shall clearly notify each of its employees, sub-contractors, agents, consultants, affiliates, customers with permitted access to the Software, or any other third party that uses the Software of the terms and conditions of this Software License Agreement and shall be responsible and liable for the compliance of such parties with the terms and conditions of this Agreement and for such parties’ acts and omissions. Such third parties shall not relieve Licensee of any of its obligations under this Agreement.

If the Software is the uProduce server software, then the following provisions shall apply, in addition to and without limiting any of the other sections of this Agreement: (i) Licensee may install the uProduce on Licensee’s own server(s), the number of which is set forth on the purchase order and the specification of which matches Licensor’s instructions in the Documentation.  Licensor will not install the Software and this Agreement shall have no effect if and until the Licensee’s network, hardware and software match such specifications. Access to the Software and the use thereof must be limited to authorized users within the Licensee’s organization and cannot be available to third parties; (ii) Licensee may use or permit others to use the Software’s Application Programming Interface (“API”) for development purposes if and only if Licensee is expressly authorized in writing by Licensor to do so, or if and only if Licensee has purchased the Web Services APIs software; (iii) If and only if Licensee is expressly authorized in writing by Licensor to use the API, or if and only if Licensee has purchased the Web Services APIs software, Licensee may develop software codes, that interface with Licensor’s uProduce product (the “Custom Code”). However, Licensee may not disclose, permit disclosure, or distribute the API or the Custom Code; and (iv) Licensee shall indemnify and save harmless Licensor and the Related Parties against all demands, claims, actions, liabilities, losses, costs, damages or expenses whatsoever (including reasonable attorneys’ fees) asserted against, imposed upon or incurred by Licensor and/or any of its Related Parties resulting from or arising out of the use of the Custom Codeor any portion thereof.

If the Software is the uStore® software, and the Licensee intends to use online clearing services, then the following provisions shall apply, in addition to and without limiting any of the other sections of this Agreement: uStore® includes online payment and clearing services provided by integrating to other software vendors.  By accepting the terms and conditions of this Software License Agreement you agree to accept the terms and conditions referenced below:

12.1. Pay Pal Pro Virtual Terminal Agreement, https://www.paypal.com/us/cgi-bin/webscr?cmd=xpt/UserAgreement/ua/PolicyProVirtualTerminal-outside.

12.2. Bibit Payment Services Terms and Conditions, http://www.bibit.com/support/assets/tandc.pdf. 

If the Software is uProduce Marketing Console, then the following provisions shall apply, in addition to and without limiting any of the other sections of this Agreement: (i) Licensee may install the Software on Licensee’s own server(s), the number of which is set forth on the accepted purchase order and the specification of which matches Licensor’s instructions in the Documentation.  Licensor shall not install the Software until the Licensee’s network, hardware and software match such specifications. Access to the Software and the use thereof is limited to Licensee’s authorized users, who must be Licensee’s employees, sub-contractors, agents, consultants, affiliates or customers with permitted access to the Software.  Licensee may use or permit others to use the Software’s Application Programming Interface (“API”) for development purposes. Licensee shall indemnify and save harmless Licensor, its affiliates, and their respective officers, directors, employees and agents against all demands, claims, actions, liabilities, losses, costs, damages or expenses whatsoever (including reasonable attorneys’ fees) resulting from or arising out of the use of the API or website or any portion thereof.   (ii) Licensee may receive from the Licensor access credentials to a Demo Server for the purpose of training or re-selling of the service to the Licensee’s customers.  The Licensee shall not transfer these credentials to any 3rd party without XMPie’s express prior written consent in each instance. 

If the Software is a Trial Version, then the following provisions shall apply, in addition to and without limiting any of the other sections of this Agreement that is not conflicting with the following: Licensor grants Licensee and Licensee obtains, a limited, royalty free, non-exclusive, personal, non-transferable, non-sublicensable license, for a limited period of thirty (30) days (or other, if explicitly provided by Licensor) commencing on the installation date, to install the Trial Version of the Software on a single computer and to use the Trial Version for the sole purpose of reviewing and evaluating the Software. Licensee may not use the Trial Version for commercial purposes. LICENSEE ACKNOWLEDGES, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRIAL VERSION IS PROVIDED ON AN "AS IS" BASIS. LICENSOR DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE TRIAL VERSION, DOCUMENTATION AND OTHER FILES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL LICENSOR LIABILITY FOR THE TRIAL VERSION EXCEED ONE US DOLLAR (US$ 1.00).

Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as an export controlled item under the Export Laws, Licensee represents and warrants that Licensee is not a citizen of, or located within, an embargoed or otherwise restricted nation (including without limitation Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods) and that Licensee is not otherwise prohibited under the Export Laws from receiving the Software.

(a) This Agreement together with the accompanying purchase order and the Documentation constitutes the entire agreement between Licensee and Licensor concerning the license of the Software; (b) this Agreement shall be governed by the laws of the State of New York, without giving effect to any principles of conflicts of laws thereof, and the state and federal courts sitting in New York, New York, shall have exclusive jurisdiction over all disputes between the parties; (c) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the consent of Licensor; and (d) This Agreement may not be altered, amended or modified, except by formal agreement in writing signed by duly authorized representatives of both parties.