End-User License Agreement
PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE, AS IT SETS OUT THE TERMS AND CONDITIONS UPON WHICH WE LICENSE OUR SOFWARE FOR USE. BY REGISTERING FOR THE SOFTWARE OR BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND TO THE TERMS OF THE END-USER LICENSE AGREEMENT.
1. Definitions and interpretation
1.1 In this End-User License Agreement:
“Computer” means a desktop, notebook, netbook or similar computer owned by and in the control of the Licensee;
“Effective Date” means the date when the Licensee agrees to the terms and conditions of this EULA, as detailed in the preamble to this EULA;
“EULA” means this end-user licence agreement (including the preamble), and any amendments to it from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Licensee” means the licensee of the Software under this EULA;
“Licensor” means SHARKSOFT, including our owners, employees, partners, independent contractors, subsidiaries, affiliates, attorneys, agents, heirs, and assigns;
“Software” means the software that accompanies this EULA including following the application of any Upgrade; and
“Upgrade” an upgrade, update, enhancement, improvement or patch to the Software supplied by the Licensor.
1.2 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this EULA.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this EULA.
2. Term of EULA
This EULA will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 9.
3.1 The Licensee may use the Software for the Licensee’s business, internal business and / or own private and non-commercial purposes and in accordance with the provisions of this Clause 3.
3.2 The Software license established by this Agreement, and the Licensee’s compliance with Clause 3.3 and the other provisions of this EULA, grants to the Licensee non-exclusive non-transferable rights to:
(a) download the Software;
(b) install the Software on any number of Computers.
3.3 The Licensee must not:
(a) copy or reproduce the Software or any part of the Software other than in accordance with the license granted in this Clause 3;
(b) sell, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Software or any part of the Software;
(c) modify, alter, adapt, translate or edit, or create derivative works of, the Software or any part of the Software;
(d) reverse engineer, decompile, disassemble the Software or any part of the Software;
(e) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Software for the purposes of preventing unauthorized use, providing that nothing in this Clause 3.3 will prohibit or restrict the Licensee or any other person from doing any act expressly permitted by applicable law.
3.4 All Intellectual Property Rights in the Software are and will remain, as between the parties, the property of the Licensor.
4. Other Users
The Licensee must not permit any other person to use the Software or to exercise any of the other rights granted by the Licensee to the Licensor in this EULA.
5.1 The Licensee must promptly apply to the Software each Upgrade released by the Licensor and made available by the Licensor to the Licensee from time to time.
5.2 The Licensor will have no obligation to provide support for the Software under Clause 6 or repair or replace the Software under Clause 7.2(d) in relation to any version of the Software that does not incorporate the most recent Upgrade to the Software.
6.1 The Licensor will provide to the Licensee email support during the period of the license for the purpose of resolving issues with the Software raised by the Licensee acting reasonably.
6.2 The Licensee acknowledges that:
(a) the Licensor’s obligation under Clause 6.1 is subject to such limits (as to time spent in relation to an issue and in relation to the Licensee in aggregate) as the Licensor may determine from time to time;
(b) the Licensor’s sole obligation under Clause 6.1 is to make reasonable endeavors to resolve issues raised by the Licensee;
(c) the Licensor does not warrant or represent that issues raised will be solved by means of the support services; and
(d) the Licensor will not provide any on-site support under this EULA.
6.3 The Licensor may subcontract any of its obligations under this Clause 6 to any third party.
7. Limited warranties
7.1 The Licensee warrants to the Licensor that it has the legal right and authority to enter into and perform its obligations under this EULA.
7.2 The Licensor warrants to the Licensee:
(a) that it has the legal right and authority to enter into and perform its obligations under this EULA;
(b) that the use of the Software by the Licensee in accordance with the terms of this EULA will not infringe the Intellectual Property Rights of any third party;
7.3 The Licensee acknowledges that:
(a) the Software may not be error-free and that non-material errors in the software will not constitute a breach of this EULA;
(b) the Software has not been developed to meet the specific requirements of the Licensee, and accordingly the Licensee will be responsible for ensuring that the Software is suitable to meet the Licensee’s requirements.
7.4 All of the parties’ liabilities and obligations in respect of the subject matter of this EULA are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this EULA will be implied into this EULA or any related contract.
8. Limitations and exclusions of liability
8.1 Nothing in the EULA will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law, and, if you are a consumer, any statutory rights which you have, which cannot be excluded or limited, will not be affected by the EULA.
8.2 The limitations and exclusions of liability set out in this Clause 8:
(a) are subject to Clause 8.1; and
(b) govern all liabilities arising under the EULA or in relation to the subject matter of the EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
8.3 The Licensor will not be liable to the Licensee for any losses arising out of a Force Majeure Event.
8.4 The Licensor will not be liable to the Licensee in respect of any business losses, such as loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.
This EULA will terminate immediately and if:
(a) the Licensee breaches any provision of this EULA;
(b) the Licensee: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(c) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Licensee;
(d) an order is made for the winding up of the Licensee, or the Licensee passes a resolution for its winding up; or
(e) the Licensee dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
10. Effects of termination
10.1 Upon termination all the provisions of this EULA will cease to have effect, save that the following provisions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 8 and 11.
10.2 Termination of this EULA will not affect either party’s accrued rights and liabilities.
10.3 Save as expressly provided in this EULA, the Licensee will not be entitled to a refund upon the termination of this EULA.
11.1 No breach of any provision of this EULA will be waived except with the express written consent of the party not in breach.
11.2 If a Clause of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this EULA will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
11.3 The Licensor may freely assign this EULA and/or its rights and/or obligations under this EULA without the Licensee’s consent. Save as expressly provided in this EULA, the Licensee must not assign, transfer, charge, licence or otherwise dispose of or deal in this EULA and/or any its rights and/or obligations under this EULA.
11.4 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
11.5 This EULA constitutes the entire agreement and understanding of the parties in relation to the subject matter of this EULA, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this EULA. Subject to Clause 8.1, each party acknowledges that no representations or promises not expressly contained in this EULA have been made by or on behalf of the other party.