totemomail® License Terms
End User License Agreement (EULA)

1. Grant of End User License


1. Subject-matter
The end user (hereinafter 'Licensee') obtains, against payment of the respective license fee, a non-transferable and non-exclusive license to use for a limited period of time the totemomail® standard software (hereinafter referred to as 'totemomail®'), including the (English) program manuals and other documentation (program description or operating instructions) (together referred to as 'documentation'), pursuant to the following terms and conditions.
The license encompasses:

1. The right to install and execute one copy of totemomail® on the licensed number of productive systems (servers) at the installation location; and
2. the right to install and to execute (in case the productive systems fail) one copy of totemomail® on the licensed number of backup systems (servers) at the installation location; and
3. the right to use totemomail® for the licensed number of email addresses of the specified domains.
The version and features of totemomail®, the number of licensed production systems and email addresses, the permitted installation location and the domains are specified individually for each Licensee. The present EULA governs as well the Licensee's right to use patches and new releases (updates and upgrades) of totemomail® that Licensee procures after receipt of the first delivery.
The Licensee is entitled only to a use of totemomail® in relation to internal email addresses of the specified domains. The number of email address(es) is counted irrespective of whether totemomail® is used in a direct form (direct access) or in an indirect form by using the functionality of totemomail® in connection with a so-called shared mailbox or with an application.
Email addresses which are used by the Licensee's Affiliates are also deemed to be internal email addresses of the Licensee, provided that the Licensee has a majority shareholding (capital and voting rights) in such Affiliates and that the Affiliates in question acknowledge this EULA as being binding upon them.

2. License fee and license key
The license is subject to the license fees being paid. A license key which enables the use of totemomail® during the licensing period will be provided. A license key is issued per licensing period and for the licensed use. License keys expire at the end of the licensing period.

3. Use of totemomail®
totemomail® may only be used in the object code, on the licensed number of systems (servers) and for the licensed number of email addresses of the specified domains.
Any further use of totemomail®, whether on other systems, for other email addresses, for other domains or otherwise, is subject to additional licensing.
The totemomail® installation location may be moved within Switzerland and the EU (excluding Great Britain). Advance notification of such moves must be made
The Licensee may use totemomail® only for its own purposes. totemomail® may not be surrendered, transferred or notified to third parties for use in whatever form, against payment or for free, nor used for the benefit of or for the account of third parties. The Licensee shall treat totemomail® and the relevant documentation confidentially and protect it from being accessed by third parties.
The Licensee may create a backup copy of totemomail® in the object code; when doing so, the existing copyright notices and similar comments must also be copied. The license key and program parts that restrict access to the number of licensed email addresses may not be copied.
The Licensee shall record the number and locations of the copies of totemomail® as well as the respective usage parameters (installations, number of accessing email addresses and domains) accurately and on an ongoing basis and shall, upon receipt of advance notice, grant totemo access to these records and permit totemo's related audit.
With the exception of the necessary backup copies, no additional copies, changes or processing (e.g. reverse-engineering) of totemomail® and the documentation may be created/carried out.

4. Delivery
totemomail® is supplied in the object code, on data carriers or by means of upload or download.

5. Expiration of usage rights
The rights to use totemomail® expire without further notice or action being required if license fees remain unpaid.
Upon expiration of the usage rights, totemomail® must be uninstalled immediately and all copies of totemomail® must be deleted. The Licensee shall confirm to totemo upon request that all totemomail® components have been erased and permanently and completely deleted. If statutory requirements oblige the Licensee to store data, the Licensee may archive programs and data within the bounds of what is necessary.



2. Warranty
totemo warrants for the initial delivery of totemomail® that the essential functions of totemomail® meet the specifications pursuant to the documentation. Should the Licensee furnish proof that totemomail® has a fault (defect) in respect of its essential functions, totemo will rectify the fault by supplying, free of charge, a correction (patch) or a corrected version, or by other suitable means. The warranty period is 30 (thirty) days after receipt of the first delivery.
If totemo is unable to rectify such faults and these faults are such that the Licensee is unable or cannot be reasonably expected to use totemomail®, the Licensee is entitled to rescind the Licensee.
Malfunctions or problems arising from the parameterization of totemomail® or the interaction of totemomail® with the infrastructure, hardware or software used by the Licensee, which are attributable to operating errors or have been caused by interference with totemomail®, are not faults of totemomail®.
The warranty is issued on the general provision that totemo cannot give a warranty that totemomail® can be used in all required combinations or without interruption or faults.
Rights to a reduction of fees or substitute performance as well as any further representations and warranties are expressly excluded. In particular, totemo does not give a warranty for the suitability of totemomail® for a specific purpose or for its economic efficiency.


3. Intellectual property
1. Rights to totemomail®
The Licensee acknowledges that all intellectual property rights, especially the copyright, to totemomail® and the Documentation are owned solely and exclusively by totemo. The Licensee may not remove the corresponding intellectual property right notices.
The Licensee shall not decompile totemomail®, carry out any reverse engineering or make any changes to totemomail®, and shall not to use totemomail® beyond the granted license. Mandatory provisions of copyright law remain reserved.
The Licensee acknowledges that the information and concepts contained in totemomail® and the documentation may constitute know-how or trade secrets of totemo. The Licensee shall only use this information for the purposes of the contractual relationship and not make this information accessible to third parties in whole or in an abridged version and take appropriate precautions to safeguard the confidentiality of this information. The Licensee shall also protect totemomail® and the documentation, including the data carriers and backup copies, from access by unauthorized third parties and from misuse.
If the Licensee grossly breaches its obligations pursuant to this section, totemo shall be entitled to terminate the license without notice. The assertion of damages as well as the right to restoration to the rightful condition remain reserved.

2. Infringement of third party rights
totemo will defend the Licensee if claims are asserted against the Licensee in Switzerland or in an EU country (excluding Great Britain) due to the breach of a patent, copyright or topography right ('intellectual property rights') through the contractual use of totemomail® by the Licensee.
The Licensee shall notify totemo in writing without delay if such claims are asserted. totemo will determine the type and scope of the defense and take over any court case and any negotiations for an in-court or out-of-court settlement. The Licensee shall support totemo in an appropriate manner with regard to the defense.
If intellectual property rights of third parties have been infringed or if this is likely in the opinion of totemo, totemo shall have the choice of either procuring the Licensee the right to continue to use totemomail®, replacing totemomail® or amending it so as to ensure that the infringement of intellectual property rights no longer persists, or withdrawing totemomail® and refunding the Licensee the license fee payments effected whilst deducting reasonable compensation for the use which has taken place.
The Licensee is not entitled to any other claims in the event of an infringement of intellectual property rights and any further warranty is excluded.

3. Open Source
totemomail® includes certain open source software components that are supplied free of charge together with totemomail®, all this pursuant to the provisions of the applicable open source license. The Licensee's right to use these components, the corresponding obligations of the Licensee and other terms associated with the use are determined exclusively and conclusively according to and subject to the applicable open source license (namely Apache license, available at www.apache.org).
totemo appliances (virtual and/or hardware appliances) may be delivered together with totemomail® in certain instances. totemo appliances rely on the open source operating system CentOs/Red Hat, the use of which is exclusively and comprehensively governed by the CentOs/Red Hat terms and conditions applicable from time to time.


This EULA does not apply to open source software or components thereof (under exception of this paragraph). Any warranty and liability on the part of totemo for or in connection with open source components is excluded.

4. Confidentiality and data protection
The Licensee shall, also beyond the term of the contractual relationship, keep secret all of totemo's industrial, trade or business secrets made accessible to it, as well as all other totemo confidential information, data or documents received or perceived.
The Licensee shall impose an obligation on its employees to use totemomail® in accordance with the terms of this EULA and to abide to the obligations set out in this EULA regarding intellectual property rights and confidentiality.
The Licensee acknowledges and agrees that totemo uses and processes data of the Licensee for purposes or in the context of totemo's CRM (customer relationship management) and that totemo may have processed Licensee's data by third parties.


5. Liability
totemo shall be liable for damage caused by willful misconduct or gross negligence.
Any further liability of totemo is excluded.
In particular, but without limitation, totemo shall in no case be liable for indirect damage, mediate damage, incidental damage, consequential damage, data loss, business interruption, additional expenses or claims of third parties, lost profits or non-realized savings, or for damage resulting from late delivery or performance.


6. Miscellaneous
1. References
The Licensee agrees to totemo referring to Licensee in its reference list in word form.

2. Export
totemomail® is subject to export control regulation (export control no. ECCN 5D002.c1) and may only be exported to countries that are approved by the authorities. The upload and/or download and/or the installation of totemomail® at locations outside of such countries are prohibited.
It is throughout the term of the license the sole responsibility of Licensee to ensure that the use of totemomail® at the location of upload and/or download and/or installation and as well as a transfer, if any, of the location of an installation are in compliance with applicable law. Licensee shall indemnify and hold totemo fully harmless from any allegations, pretentions, claims or proceedings against totemo due to the violation of export control regulations by Licensee.
Notwithstanding the above, Licensee shall not directly or indirectly export (or re-export) totemomail® into (or to a national or a resident of) a country with respect to which Switzerland, the European Union or the United States have imposed sanctions or transfer or make available totemomail® to anyone on a designated, restricted or denied parties list as promulgated by Switzerland, the European Union or the United States from time to time. In addition, Licensee shall not export, re-export, transfer or make available totemomail® to any person, country or destination for which an export or other license or authorization is required without having first obtained any such license or authorization.

3. Assignment
The assignment of a totemomail® license is subject to the prior consent of totemo. totemo will not unreasonably withhold, delay or condition its consent.

4. Third Party Software
totemomail® may be distributed with third-party software programs/components/development kits, either incorporated into totemomail® or provided separately ('third-party software'). Third-party software is not part of totemomail® and provided by totemo on a pass-through basis. totemo's obligations consist only of procuring the third-party software and of passing it on. totemo makes no representations or warranties and assumes no own obligations or liabilities in relation to third-party software.
Third-party software is subject to its own license terms as issued by the third-party software provider. In each case, however, the following shall apply:
Third-party software providers shall retain all right, title and interest in and to their third-party software and all copies thereof, including all copyright and other intellectual property associated therewith;
the scope of license and use limitations applicable to totemomail® under this EULA shall in analogy also applyto third-party software;
and third-party software may, unless otherwise agreed, not be used as a stand-alone application or with applications other than totemomail®.

7. Special conditions for test and evaluation licenses
For the purpose of evaluating totemomail®, totemomail® test or evaluation licenses may be granted. Provided no separate test or evaluation license agreement has been executed, the terms and conditions set out in this EULA shall apply in such cases as well, with the following modifications and modalities.

1. Test and evaluation licenses are granted free of charge and for a limited period of time; and
2. any and all representation, warranties and liabilities for damages are excluded.


8. Applicable law and place of jurisdiction

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