End user agreement for CommView for WiFi
COMMVIEW FOR WIFI END USER LICENSE AGREEMENT
NOTICE TO USER:
THIS IS A CONTRACT. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY INSTALLING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Electronic End User License Agreement (the "Agreement") is a legal agreement between you (either an individual or an entity), the licensee, and TamoSoft Ltd., and its affiliates (collectively, the "Licensor"), regarding the software and service titled COMMVIEW FOR WIFI that you about to download, downloaded, or otherwise obtained through other resources or media such as CD-ROMs, floppy disks, or though a network in object code form or other related services, including without limitation a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided (the "Software"), and b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Licensor (collectively, the "Updates") provided that the Updates shall not include a new subsequent releases of COMMVIEW FOR WIFI bearing a new first numeral such as 2.0 or 3.0 ("New Releases") but include any minor revisions of the COMMVIEW FOR WIFI version indicated by a change in the decimal numeral, such as 2.3 or 2.4, and c) related user documentation and explanatory materials or files provided in written, "online" or electronic form (the "Documentation" and together with the Software and Updates, the "Product"). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Licensor, or through any other source. For purposes hereof, "you" or "Licensee" means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, "you" or "Licensee" means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term "organization," without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation ("Operating"), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
BEFORE YOU CLICK ON THE "YES" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE "YES" BUTTON IS A SYMBOL OF YOUR SIGNATURE BY WHICH YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "NO" BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. This Product will not install on your computer unless or until you accept the terms of this Agreement. You may also receive a copy of this Agreement by contacting the Licensor at: www.tamos.com.
For the purposes of this Agreement, "Licensor Site" shall mean the Internet website maintained by or on behalf of Licensor from which the Product is available for download pursuant to a license from Licensor. The Licensor Site is currently located at www.tamos.com.
1. Proprietary Rights and Non-Disclosure.
1.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of New Zealand, the United States, EU, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement.
1.2. Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, "License Key(s)" shall mean a unique sequence or series of sequences of digit and/or symbols or a file provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the name of Licensee, the number of Licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information, provided however, that you may make and distribute unlimited copies of the trial version of Product in object code only as long as each copy that you make and distribute contains this Agreement subject to end user's acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software.
1.3. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.
2. Grant of License.
2.1. License. The Licensor grants you the non-exclusive and non-transferable license to store, load, install, execute, and display (to "Use") the specified version of the Product on a specified number of computers, workstations, personal digital assistants, 'smart phones,' mobile phones, hand-held devices, or other electronic devices for which the software was designed (each a "Client Device") pursuant to the terms and conditions of this Agreement ("License") and you hereby agree and accept such License as follows:
a). Trial Version. If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Software and you may Operate the Product only for evaluation purposes and only during the single applicable evaluation period of thirty (30) days, unless otherwise indicated, from the date of the first execution of the Software. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute a trial version of the Product as provided in Section 1.3 hereof.
b). Standard License. Unless otherwise specifically indicated under a valid licensing terms (e.g. multiple user license as provided in a contemporaneous purchase order or agreement) granted by the Licensor, upon registration of the Product (online or otherwise as provided by Licensor), Licensee is granted a non-exclusive and non-transferable license to Operate one (1) copy of the specified version of the Product by one user account in the operating system ("User") during the Term of this Agreement on one Client Device provided that you, as the primary user of the Client Device on which each licensed copy of the Software is installed may make a second copy for your exclusive use on one additional portable Client Device, further provided that (i) such additional Client Device has a substantially different functionality and purpose from the original Client Device, and (ii) Licensee may not use the Product on both Client Devices at the same time. For the avoidance of doubt, the second copy of the Product is for the exclusive use by the original Licensee on one additional portable Client Device at the time the Product is not Operated on the original Client Device and such right to make the second copy does not constitute an extension of the original right to Operate one copy of the specified version of the Product by one user on one Client Device at any given time and provided that if you purchase multiple or volume License, the number of the Client Devices and the number of permitted users shall be as provided and permitted by invoicing terms or applicable terms and conditions set forth on the Licensor Site at the time of purchase of the License and the right to use and make a second copy of the Product on one additional portable Client Device as described above is null and void. The Licensor reserves all rights not expressly granted herein.
c). Site License. If the Product is licensed to you with the Site License terms specified in the applicable product invoicing or packaging of the Product, you or anyone within your Organization may install and Use the Product on an unlimited number of Client Devices located within One Hundred Kilometers (100 Km) of the original site in the same country. Additionally, the individual licensing terms may specify other terms, conditions and restrictions of Using the Product under the Site License.
d). Worldwide Company License. If the Product is licensed to you with Worldwide Company License terms specified in the applicable product invoicing or packaging of the Product, you or anyone within your Organization or its affiliates may install and Use the Product worldwide on an unlimited number of Client Devices, provided however, that any Use of the Product is strictly prohibited by anyone outside of your Organization and its affiliates. For purposes hereof, the term "affiliates" shall mean an entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, your Organization.
e). Grant of Multiple Licenses. If you have purchased multiple licenses for the Product, as reflected in the License Key granted to you by the Licensor, then the number of multiple licenses and the licensing terms reflected in the License Key shall determine the number of copies of the Product you may have, the permitted uses, and the number of Client Devices on which you may Use the Product.
f). Back-up Copies. This Licensor authorizes you to make one (1) back-up or archival copy of the Product as necessary for its lawful use and solely for back-up purposes, provided that such copy contains all of the Product's proprietary notices, and that your installation and use of the Product does not exceed that which is allowed in this Section 2.
g). The Licensor reserves all rights not expressly granted herein.
2.2. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you Use different versions of the Product (i.e. designed for different operating systems) or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Licensor provided that unless the licensing terms and the License Key provides otherwise, each purchased license entitles you to install and Use the Product on one (1) Client Device. You may not rent, bundle with other products or materials, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not without Licensor's written consent.
2.3. Updates and New Releases. During the Term of this Agreement, you may download those free of charge Updates to the Product when and as the Licensor makes them available to all End Users free of charge on Licensor Website or through other online services provided that nothing herein shall be construed as requiring Licensor to develop, produce or publish any such free Updates. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights, entitlements or licenses with regard to any other Updates or the New Releases of the Product or to entitle you to any other product of the Licensor. This Agreement does not obligate the Licensor to provide any Updates or New Release. The Licensor reserves the right to make availability of any Updates or New Releases subject to additional payment, subscription to services and/or support or other terms and conditions. If the Product or any part thereof is an Update to a previous version of the Product, you must possess a valid license to such previous version in order to use the Update. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a further Agreement accompanying such Update or modified version of to the Product).
2.4. Product as New Release. If this copy of the Product is a New Release of the Product, it is provided to you on a license exchange basis. You agree that by your acceptance this Agreement and by installation, use and Operation of this copy of the Product you voluntarily terminate your earlier end-user license. Furthermore, you will not continue to Use the earlier version of the Product nor transfer it to another.
2.5. Term and Termination. The term of this Agreement ("Term") shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder. The Licensor may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or upgrade or New Release of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Licensor immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product.
2.6. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way.
2.7. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 2.7 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
3.1. No Transfers. Under no circumstances you shall sell, loan, rent, lease, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Client Device; and c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product. Notwithstanding the foregoing, you may not transfer education, pre-release, or "not for resale" copies of the Product. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product.
3.2. Prohibitions. Except as otherwise specifically provided for in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Licensor and the Licensor may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Licensor's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product's binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. You may use drivers included in the Software specifically only in conjunction with the hardware, for which the drivers were designed and only in the country where the hardware was purchased. All rights not expressly granted here are reserved by Licensor and/or its suppliers and licensors, as applicable.
3.3. License Key(s). You may not give away, sell or otherwise transfer your registration License Key(s) or any copy thereof to a third party. Product's License Key(s) may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key(s) or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
3.4. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above.
3.5. No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto. If you sell the Client Device on which the Product is installed, you must ensure that all copies of the Product have been previously deleted.
3.6. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may install on your computer technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Product. You may not be able to exercise your rights to the Software under this Agreement after a grace period not exceeding seven (7) days unless you activate your copy of the Software in the manner described in the activation wizard provided as part of the Software or at www.tamos.com/activation. You may also need to reactivate the Software if you modify your computer hardware. The Licensor will not collect any personally identifiable information from your computer during this process.
4. NO WARRANTY AND DISCLAIMER.
4.1. Limited Warranty. The Licensor warrants that for the longer of (x) sixty (60) days, or (y) the minimum warranty period prescribed by the applicable law from the earlier of i) original purchase of the License to Software or purchase of the media (e.g. diskettes) on which the Product is contained, or ii) the date the License Key(s) is provided to you by Licensor, the tangible media, on which Product was licensed to you (such as CD or DVD) will be free from defects in materials and workmanship and that the Software will perform substantially in accordance with the Documentation or generally conform to the Product's specifications published by the Licensor. Non-substantial variations of performance from the Documentation do not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO TRIAL AND EVALUATION VERSIONS, UPDATES, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF PRODUCT. To make a warranty claim, you must contact Licensor at www.tamos.com within applicable warranty period indicated above.
4.2. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION, including, without limitation, by law, customers in the European Union also have the right to withdraw from the purchase of the Product and cancel the contract within seven working days after the date the item is delivered and such rule applies to the Product except when the Software has been downloaded or when the item's seal or package wrapping has been unsealed or broken.
4.3. Customer Remedies. The Licensor and its suppliers' entire liability and your exclusive remedy for any breach of the foregoing limited warranty shall be replacement of the defective Software and/or the media in which the Product is contained. For the avoidance of doubt, considering that the Licensor offers a generous "try-before-you-buy" evaluation period, Licensor does not offer and you are not entitled to any refunds whatsoever after the License Key has been provided to you. To make a warranty claim, you must return the defective original Software to the Licensor at your expense with a copy of your receipt. This limited warranty is void if the defect has resulted from misuse, accident, abuse, or misapplication. Any replacement Software or media will be warranted for the remainder of the original warranty period.
4.4. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
4.5. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5. Notice to U.S. Government Users; Export Restrictions.
5.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
5.2. Export Restrictions. You acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States and that the Product may not be exported, transshipped or re-exported, directly or indirectly, in violation of any applicable law, embargo or export/import law, regulation or treaty, including the laws and regulations of the country in which the Product was obtained (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By Operating the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
7.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of New Zealand without reference to conflicts of law rules and principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The courts within New Zealand shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement is to be performed in New Zealand and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the courts of New Zealand and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
7.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
7.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Licensor and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Licensor and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 7.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
7.4. Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department at www.tamos.com/contact/.
Copyright © 1998-2008 TamoSoft Ltd. and its licensors. All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.