Last modified date: April 27, 2017
This agreement (hereinafter referred to as "Agreement") is made between DigitalWheat OÜ, a duly registered company in whose principal place of business is Sepapaja tn 6, 15551 Tallinn, Estonia (hereinafter referred to as "DigitalWheat", "Licensor", "we", "us" or "our") and Licensee (hereinafter referred to as "Licensee", "you" or "your"). By downloading, installing, copying, accessing and/or using the Email Builder or purchasing a license for it, you agree to be bound by the terms and conditions of this license.
If you do not agree to these terms:
DigitalWheat reserves the right to alter this agreement at any time, for any reason and without notice.
WHEREAS, Email Builder is the software product developed by DigitalWheat
WHEREAS, Licensee is a company, person or organization that wishes to utilize this software product bundled or integrated with their own software products.
NOW THEREFORE, in consideration of the mutual covenants herein, DigitalWheat and Licensee hereby agree to be legally bound as follows:
Agreement shall mean the standard terms and conditions in this document;
Affiliates shall mean any party company that is involved in the process of making the Licensee's product available to end users;
Bug shall mean a behavior in the Software's functionality that we do not consider intended;
Confidential Information shall mean any and all written, verbal or demonstrated information provided by a Disclosing Party in connection with this Agreement;
Confidential information includes, without limitation, information relating to inventions, trade secrets, know-how, methods, processes, creations, conceptions, technologies, algorithms, other intellectual property, products, improvements, product formulae, services, finances, business plans, marketing plans, legal affairs, supplier lists, customers, customer lists and related data, potential customers, business prospects, business opportunities and the like, which relate in any manner to a Party's actual or anticipated business, its affiliates, subsidiaries, or divisions, or to it's actual or anticipated areas of research and development;
Developer shall mean a person who is working directly or indirectly on a project that includes the Software, including front-end developers and designers as well as backend developers working on the business logic related to integrating the Software, but not developers working on completely different modules of your project;
Disclosing Party shall mean a Party that discloses information to a Receiving Party;
Domain Name (or Domain) shall mean a unique name or address by which a Website is reachable. (For example, if a Website is reachable by the address "http://www.example.com", the Domain is "example.com");
DigitalWheat shall mean DigitalWheat OÜ, an Estonian company company reg. code 14214087;
DigitalWheat's Website shall mean https://www.digitalwheat.com/;
Email Builder Website or Software Website shall mean https://www.getemailbuilder.com/;
License shall mean the license granted by DigitalWheat according to this Agreement;
Licensee shall mean the company, person or organization holding a license and contracting party to this Agreement;
License Fee shall mean the fee payable to DigitalWheat for utilization of the Software in accordance with the License;
Minified Source Code shall mean source code with unnecessary characters removed and with minimized readability.
Party shall mean Licensee or DigitalWheat individually;
Parties shall mean Licensee and DigitalWheat jointly;
Receiving Party shall mean a Party that receives information from a Disclosing Party;
Open Source shall mean computer software with its source code made available and licensed with a license in which the copyright holder provides the rights to study, change and distribute the software to anyone and for any purpose;
SaaS shall mean a software licensing and delivery model in which software is licensed on a subscription basis and is centrally hosted;
Software shall mean the Email Builder marketed by DigitalWheat on https://getemailbuilder.com;
Software's API shall mean the Software's Programming Interface which consists of options, methods and events that can be used to interact with the it;
Territory shall mean the territory where the Software can be utilized, respectively any country;
Third Party or Third Parties shall mean any other party than the Parties;
Website shall mean a collection of web pages that all have the same Domain Name (organizational level) and that serve and are operated by one single entity or Licensee;
Working Days shall mean any day on which legal business can be conducted, other than Saturday, Sunday or legal holiday;
Unminified Source Code shall mean source code in human readable format.
Licensor owns all the intellectual Property Rights over the Software. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to you, or from you to the Licensor.
The structure, organization and code of the Software are valuable trade secrets and confidential information of the Licensor. The Software, including the Software`s logos and trademarks, are proprietary to the Licensor and protected by law, including without limitation the copyright laws of Estonia and other countries, and by international treaty provisions.
You shall respect the Licensor`s Intellectual Property Rights, as stipulated under this Agreement and the applicable laws.
During the term of this Agreement and after termination, you must not:
Licensee may use Licensee's own descriptions of the functionality provided by the Software for the purposes of marketing Licensee Product(s) insofar the descriptions are not misleading.
Licensee shall not do anything that might misrepresent the ownership of the Software.
Commercial License is the only available license type.
An Commercial License allows Licensee to use the Software in SaaS applications, mobile applications and redistribute the Software in his software products. Licensee is not allowed to use the Software in Open Source projects. Licensee's customers may use the Software without buying a license, but they are not allowed to redistribute the Software. The Commercial License includes the unminified source code and twelve (12) months of technical support starting with the purchase date.
The License Fee is one time payment and it shall be calculated based on the Software current price list. The fees listed on the Software Website do not include taxes. If DigitalWheat is required to pay any sales, use, property, excise, value added, gross receipts, withholding or other taxes levied on the Software under this Agreement or on Licensee's use thereof, then such taxes shall be billed to and paid by Licensee. This Section does not apply to taxes based on DigitalWheat net income, franchise taxes or DigitalWheat employer contributions and taxes.
Therefore, you understand that for customers within EU, additional VAT charges may apply during the checkout process to the listed price. You must pay any applicable taxes, and any applicable third-party fees (including, for example data plan charges, credit card fees or foreign exchange fees). We are not responsible for these fees.
You understand that DigitalWheat is using third-party payment processors and until payments are not verified by the payment processor, and received by Us, this License Agreement is not valid.
The License fee is refundable only under the following conditions:
In order to ask for a refund, Licensee shall Contact Us via our website. As soon as the request is received, We will evaluate it and if you are eligible for a refund we will initiate a full refund of the purchase within 15 working days. The refund is being made through our payment processor, and you understand that it might take some time until the money get back to your bank account.
Once we initiate the refund you will get a confirmation email and this agreement is terminated. You shall remove, delete or otherwise destroy any material that you have received, copied or otherwise obtained.
Before purchasing a License you will be asked to supply (i) billing address, and (ii) email address.
You represent and warrant that the information supplied to us is true, correct and complete. and that you have the legal right to use any credit card(s) or other payment method(s) in connection with the purchase.
DigitalWheat will invoice Licensee and create him an account on the Software Website as soon as the payment is received by DigitalWheat. The invoice will be available for download in Licensee's account. Licensee shall contact DigitalWheat if he did not receive an email from DigitalWheat with information about the new account within 24 hours.
The term of the License is perpetual.
Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software.
Licensor may terminate this Agreement immediately by giving you written notice of termination if:
Within 10 (ten) days following the termination of this Agreement, you must:
The Software is made available for download via the Software Website.
DigitalWheat may stop improving the Software and even shut down the Software Website at any time, for any reason and without notice.
During the term of this agreement, Licensee has full access to Software updates for a period of twelve (12) months starting with the purchase date.
Licensee who uses a license with technical support included has full access to DigitalWheat's online support services via email, which means that Licensee will get answers to technical questions within three (3) business days.
Support shall refer only to Software's source code, integration questions related to the Software's API and documentation clarification. Support does not include questions related to other programming languages or frameworks.
Under no circumstances is DigitalWheat compelled to fix Software's bugs, to perform custom development or to write code for the Licensee.
When Licensee's support and update period is about to end, Licensee may opt to extend the support and update period either by (i) renewing the license (purchasing the same type of license) one (1) month prior to the expiration date, in which case Licensee receives a 25% discount, or by (ii) purchasing a new license that includes support and / or updates, in which case the discount is not applicable.
You may only use the Software if you are (a) over 13 years old and (b) allowed by law to enter into a binding contract.
We reserve the right to refuse any purchase without giving reason. Upon cancellation of a purchase we will make all reasonable attempts to contact you using the details provided. All received money will be refunded using the method received.
THIS SOFTWARE IS PROVIDED BY DIGITALWHEAT "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL DIGITALWHEAT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
DigitalWheat does not warrant that (i) the Software will meet your specific requirements, (ii) the Software will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Software will be accurate or reliable and (iv) any errors in the Software will be corrected.
DigitalWheat shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if DigitalWheat has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Software; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Software; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Software; (v) or any other matter relating to the Software.
DigitalWheat's liability for damages to the Licensee for any cause whatsoever related to this Agreement, shall be limited to the License Fees paid for the Software in question.
DigitalWheat will defend, indemnify and hold the Licensee harmless against any claim stating that the Software is violating any Third Party copyright provided that:
If the Software is held by a final court ruling to be infringing any Third Party intellectual property rights DigitalWheat will at its option: (i) obtain the right for Licensee to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or solely in the event that (i) and (ii) are not feasible, (iii) refund any and all invoiced amounts to Licensee and all of DigitalWheat's obligations under this Agreement shall terminate upon written notice.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, and you believe in good faith your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please contact us.
This Agreement shall be governed by and construed in accordance with the laws of Estonia. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, the Parties shall seek to solve amicably through negotiations. If the Parties do not reach an amicable solution within two (2) weeks, the courts of Tallinn, Estonia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.