End user agreement for SMS Express 2007
END USER LICENSE AGREEMENT
This End-User License Agreement (“EULA”) is a legal agreement between the person install (“End User”) and Wireless Messaging Sdn Bhd (“Wireless”) for the software product it accompanies, which includes computer software and associated media, printed materials, and electronic documentation (“SOFTWARE PRODUCT”). By installing, copying, downloading, accessing, or otherwise using the SOFTWARE PRODUCT, End User agrees to be bound by the terms of this EULA. If End User does not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT.
End User does not have the right to use the SOFTWARE PRODUCT unless End user has paid the software cost price to Wireless, and has specifically agreed to the following terms and conditions. Subject to the foregoing, Wireless grants End User a non-exclusive right to use the SOFTWARE PRODUCT upon the following terms and conditions:
1. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS: Wireless shall retain the sole and exclusive ownership of the SOFTWARE PRODUCT and all intellectual property and/or proprietary rights relating to or embodied therein. Wireless reserves all rights not expressly granted to in Clause below and no rights are granted by implication, estoppels or otherwise. End User shall not remove from, add to or alter any of the trade mark, trade names, logos, patent or copyright notices or proprietary marking in the SOFTWARE PRODUCT.
2. GRANT OF RIGHT: Subject to continued compliance by End User with the terms and conditions of this EULA and payment of the software, Wireless grants to End User an internal, non-transferable (except as set forth below), revocable, non-exclusive, non-sub right to install and use the SOFTWARE PRODUCT only: (a) in object code form; (b) in accordance wit the documentation; (c) for internal business purposes, which shall not include renting, leasing, time sharing or providing any service bureau function to or on behalf of the third parties. End User’s right under this EULA may only be assigned in a transfer of the SOFTWARE PRODUCT in its entirely to another end-user, provided that End User first uninstalls all copies of the SOFTWARE PRODUCT.
3. RESTRICTIONS: It is acknowledged that the SOFTWARE PRODUCT and its structure, sequence, organization, user interface and source code constitute valuable trade secrets and proprietary information of Wireless. Accordingly, no permission is granted to End User or to any third party to (a) modify, adapt, alter, translate, or create derivative works from the SOFTWARE PRODUCT; (b) merge the SOFTWARE PRODUCT with other software; (c) distribute or otherwise transfer the SOFTWARE PRODUCT to any third party (except in connection with an assignment of End User’s rights permitted under Clause 2); (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or (e) otherwise use or copy the SOFTWARE PRODUCT except as expressly allowed under Clause 2. Wireless may audit compliance with these terms.
4. LIMITED WARRANTY: Wireless warrants that (a) the SOFTWARE PRODUCT will perform substantially in accordance with the accompanying written materials for period of ninety (30) days from the date of receipt, and (b) any Support Service provided by Wireless shall be substantially as described in applicable written materials provided to End User by Wireless and Wireless support engineers will make commercially reasonable efforts to solve any such problem issues, provided that the same shall have been notified to Wireless in writing within such period.
NO OTHER WARRANTIES: Except as specifically set forth in this Clause 4, Wireless Makes no other warranties with respect to the SOFTWARE PRODUCTS, Documentation, provision of updates, and/or installation or maintenance services and hereby disclaims all warranties, express, implied or statutory with respect thereto including, without limitation, any warranties of merchantability, fitness for a particular purpose, satisfactory quality, title or non-infringement, provided always that to the extent that Wireless may not as a matter of any applicable law disclaim any such warranty, then the duration and scope of such warranty shall be the minimum permissible under such applicable law. Wireless’s and its suppliers’ entire liability and End User’s exclusive remedy shall be, at Wireless’s option, either (a) return of the price paid, if any, or (b) repair or replacement of the SOFTWARE PRODUCT that does not meet Wireless’s Limited Warranty and whish is returned to Wireless. The foregoing are Wireless’s sole and exclusive obligations and End User’s sole and exclusive remedies with respect to the SOFTWARE PRODUCTS, provided always that Wireless will have no obligations under this Clause 4 arising from (i) modifications to the Software Products that were not authorized by Wireless, (ii) Specifications requested or provided by End User, (iii) the use of the Software Products in combination with products no provided by Wireless, if such claims would not arise but for such combination, or (iv) failure to use the SOFTWARE PRODUCT in accordance with its documentation.
LIMITATION OF LIABILITY: Notwithstanding any other provisions hereof, to the maximum extent permitted under the law, Wireless and its resellers shall not bear any liability to end user for loss of data, software restoration, loss of production, loss of profit, loss of goodwill, loss of business, loss and damage associated with downtime, business interruption, loss of business information, or indirect losses or consequential damages of any kind arising during and/or as a result of the supply or use of the SOFTWARE PRODUCT, documentation, provision of updates, and/or installation or maintenance services and or the performance or non-performance by Wireless of this agreement, regardless of the clause thereof, including but not limited to the negligence of Wireless, and even if Wireless has been advised of the possibility of such damages. It is acknowledged that the software cost price and/or support fees reflect the allocation of risk set forth in this EULA and that Wireless would not enter into this EULA without such limitations.
5. General: This EULA shall for all purposes be governed by and interpreted in accordance with the laws of Malaysia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA. Nothing in this EULA shall be construed to create any duty to, standard of care with respect to, or any liability to any person who is not a party to this EULA. Without limiting the generality of the foregoing, a party who is not a party to this EULA shall have no right under the Contracts (Rights of Third Parties) Act 2001 to enforce any of the provisions hereunder. Expect for any action or proceeding brought by Wireless involving injunctive relief any action or proceeding arising from or relating to this EULA must be brought in courts of Malaysia, and the parties hereby irrevocably consent to the non exclusive jurisdiction of the Malaysian courts. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and shall remain in full force and effect. All waivers must be in writing. Any waiver or failure o enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. In the event of termination of this EULA, Clauses 1, 3 and 4 shall perpetually survive. This EULA is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. If End User has any questions regarding this EULA, or desire to contact Wireless for any reason, please write to wireless Messaging Sdn Bhd at 7-8-4, Jalan 3/109C, Taman Abadi Indah, 58100 Kuala Lumpur, Malaysia.