SHAKA TECHNOLOGIES END USER LICENSE AGREEMENT AND PRODUCT WARRANTY STATEMENT
IMPORTANT: PLEASE READ BEFORE INSTALLATION, DOWNLOAD OR USE OF THE SHAKA Technologies PRODUCT ("PRODUCT") THAT YOU ARE ATTEMPTING TO DOWNLOAD OR THAT OTHERWISE ACCOMPANIES OR IS PROVIDED WITH THIS END USER LICENSE AGREEMENT AND PRODUCT WARRANTY STATEMENT ("AGREEMENT").
THE PRODUCT WILL CONSIST OF SOFTWARE PROVIDED ON A STAND ALONE BASIS; ANY SOFTWARE PROVIDED ON A STAND ALONE BASIS, INCLUDING ANY UPGRADES, PATCHES, ENHANCEMENTS OR FIXES THERETO, SHALL BE DEEMED "SOFTWARE". BY DOWNLOADING, INSTALLING OR IN ANY WAY USING THE PRODUCT, THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT, WITH SHAKA TECHNOLOGIES OR THE SHAKA TECHNOLOGIES SUBSIDIARY THAT IS LICENSING THE PRODUCT TO THE LICENSEE.
IT IS VERY IMPORTANT THAT YOU CHECK THAT LICENSEE IS PURCHASING THE PRODUCT FROM EITHER SHAKA OR AN AUTHORIZED DISTRIBUTOR TO SELL THE PRODUCT AND THAT LICENSEE HAS BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS AGREEMENT. IF YOU ARE NOT REGISTERED AS THE END USER, YOU HAVE NO LICENSE TO USE THE SOFTWARE AND THE LIMITED WARRANTY IN THIS AGREEMENT DOES NOT APPLY.
IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DOWNLOAD, INSTALLATION OR USE OF THE PRODUCT, IS STRICTLY PROHIBITED.
THIS AGREEMENT CONSTITUTES THE AGREEMENT BETWEEN SHAKA AND LICENSEE WITH RESPECT TO SUCH PRODUCTS, TO THE EXCLUSION OF ANY PRE-PRINTED OR CONTRARY TERMS OF ANY PURCHASE ORDER (OR SIMILAR DOCUMENT) AND SUPERSEDES AND CANCELS ANY PRIOR DISCUSSIONS, UNDERSTANDINGS OR REPRESENTATIONS BETWEEN THE PARTIES. THIS AGREEMENT MAY NOT BE MODIFIED OR WAIVED, EXCEPT BY A MUTUAL SIGNED WRITING, AND, IF THIS AGREEMENT IS DEEMED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS IN WRITING BY SIGNED MUTUAL AGREEMENT.
ONCE INSTALLED ON A SERVER, PC OR OTHER COMPUTER, THE SHAKA PRODUCT IS THE ONLY SOFTWARE WHICH CAN BE RUN ON THE RESPECTIVE MACHINE. IN THE COURSE OF INSTALLATION, THE HARD DISK OF THAT MACHINE WILL BE ERASED COMPLETELY!
YOU AGREE, THAT IT IS YOUR OBLIGATION TO ENSURE THAT THE COMPUTER ON WHICH THE PRODUCT IS TO BE INSTALLED, DOES NOT CONTAIN ANY DATA, THE LOSS OF WHICH WOULD CAUSE DAMAGE OR LOSS TO YOU.
End User License Terms
1. LICENSE GRANT: Subject to the terms of this Agreement and provided Licensee has paid the applicable fees, SHAKA hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use or access the Product solely for Licensee's internal business use in accordance with the SHAKA documentation that accompanies it and any other use restrictions applicable for that Product. Licensee may use each licensed copy of the Product only as embedded in or for execution on a specific unit owned or leased by Licensee. Licensee may copy configurations of the Product solely for backup purposes.
Without granting any additional licenses hereunder, Licensee may authorize its contractors and outsources to use or operate the Product solely on Licensee's behalf and provided Licensee obtains such third parties' binding consent to abide by the terms of this Agreement and provided Licensee shall be responsible for such parties' use and compliance. Such parties are not, and shall not be deemed to be third party beneficiaries under this Agreement for any reason.
2. LICENSE RESTRICTIONS: Except as permitted by this Agreement, Licensee shall not, nor authorize anyone else to, directly or indirectly (i) copy, modify, or distribute the Product; (ii) reverse engineer, disassemble, decompile or attempt to discover the source code or structure, sequence and organization of the Product (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) rent, lease, or use the Product for timesharing or service bureau purposes for third parties, or otherwise use the Product on behalf of any third party, or (iv) publish or disclose any information or results relating to performance, performance comparisons or other "benchmarking" activities. SHAKA shall have the right to inspect and audit Licensee and/or require Licensee to provide written assurances satisfactory to SHAKA to confirm compliance with this Agreement. Notwithstanding anything to the contrary herein, Licensee may utilize the software pursuant to a leasing arrangement whereby the Licensee leases the Product from a third party. Licensee acknowledges and agrees that the Software (including its design and structure) ("Confidential information"), constitutes trade secrets of SHAKA or its licensors, Licensee shall hold in confidence and not disclose or provide such trade secrets in any form to any third party without SHAKA's prior written consent. Licensee shall maintain and not remove or obscure any proprietary notices on the Product. As between the parties, title of and all ownership rights in the intellectual property rights in and to the Software, and any copies of portions thereof, shall remain in SHAKA and its suppliers or licensors. The Software is protected by the copyright laws of the United Kingdom and international copyright treaties. This Agreement does not give Licensee any rights not expressly granted herein. Any action of Licensee in contravention of this section 2 may result in the termination of this Agreement, including license grant for the Product, as described in Term and Termination below. SHAKA reserves all rights not expressly set forth hereunder.
3. SUPPORT AND UPGRADES: This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements or fixes for the Product (collectively, "Support"). Licensee must make separate arrangements for Support and pay any fees associated with such Support. Any software upgrades, patches, enhancements or fixes provided as part of Support for the Software that may be made available by SHAKA shall become part of the Software and subject to this Agreement. The terms of SHAKA's standard support services are located at www.shakatechnologies.com/supportpolicy
Product Warranty Statement
1. SHAKA warrants that the media, if any, on which the Product is delivered, will be free of defects and that the Product will substantially conform to the description contained in the applicable documentation.
THE PRODUCT IS PROVIDED "AS IS" TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SHAKA DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT. LICENSEE'S RESPONSIBILITY FOR SELECTING THE PRODUCT TO ACHIEVE LICENSEE INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. WITHOUT LIMITING THE FOREGOING PROVISIONS, SHAKA MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS, PROBLEMS CO-WORKING WITH OTHER SYSTEMS, OR ANY OTHER FAILURES, OR THAT THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS.
1. LIMITATION OF LIABILITY: Under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall SHAKA or its suppliers be liable to Licensee or to any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or for any and all other damages or losses. In no event will SHAKA be liable for any damages in excess of the price paid by Licensee for the software that gave rise to the claim, even if SHAKA shall have been advised of the possibility of such damages. This limitation of liability shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
2. TERM AND TERMINATION: This Agreement shall continue until terminated as set forth in this section. Licensee may terminate this Agreement at any time. This Agreement shall terminate if Licensee violates or fails to comply with any provision of this Agreement within 10 (ten) working days. Any termination of this Agreement due to Licensee's uncured breach shall also terminate the licenses granted hereunder. Upon termination of this Agreement, due to a termination , an uncured breach by the Licensee, Licensee shall no longer use the Software, shall destroy and remove from all computers, hard drives, networks and other storage media, all copies of the Software, and shall certify to SHAKA that such actions have occurred. Sections 2 and 3 of the End User Licensee Terms, the Product Warranty Statement, and the General Provisions shall survive termination of this Agreement.
3. EXPORT CONTROLS: Licensee shall comply with all export laws and restrictions and regulations of The European Union, United States Government, Australia or other foreign agency or authority, and Licensee shall not export, or allow the export or re-export of, the Product in violation of any such restrictions, laws or regulations. Licensee is responsible for obtaining any licenses required to export, re-export, transfer or import the Product.
4. MISCELLANEOUS: If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The failure of SHAKA to act with respect to a breach of this Agreement by Licensee or others, does not constitute a waiver and shall not limit SHAKA's rights with respect to such breach, or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without SHAKA's consent. Any action or conduct in violation of the foregoing, shall be void and without effect. In obtaining the Product, Licensee acknowledges that it has not relied and will not rely on the availability of any future SHAKA product or version of a product. SHAKA expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under United Kingdom law. Unless waived by SHAKA in a particular instance or prohibited by applicable law, the sole and exclusive jurisdiction and venue for actions arising under this Agreement, shall be the Supreme Court of the United Kingdom, and each party hereby consents to the jurisdiction of such courts for any such dispute. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
EXCEPT FOR THE LICENSE RIGHTS GRANTED HEREIN, NO INTELLECTUAL PROPERTY RIGHTS ARE TRANSFERRED.
The parties confirm that it is their wish that this Agreement has been written in the English language only.