End user agreement for Kaboom
SISULIZER LTD & CO KG ("SISULIZER") IS WILLING TO LICENSE KABOOM TO YOU ONLY PROVIDED THAT YOU (A LEGAL PERSON) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("AGREEMENT").
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE CLICKING THE "YES" BUTTON. BY CLICKING THE "YES" BUTTON, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE TO BECOME A PARTY TO THIS AGREEMENT.
SHOULD YOU NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, SISULIZER IS NOT WILLING TO LICENSE KABOOM TO YOU AND YOU SHOULD CLICK THE "NO" BUTTON AND DISCONTINUE THE INSTALLATION PROCESS AS WELL AS DELETE ANY DOWNLOADED COPY OF KABOOM AND DESTROY THE RELATED KEY(S).
The following terms whenever used in this Agreement shall have the meaning herein assigned to them unless their use in the context is inconsistent with such meaning:
"Affiliate" means in relation to You any company, partnership or other entity that directly or indirectly controls, is controlled by or is under common control with You as a subsidiary or holding company. "Control" means the ownership of at least fifty (50) per cent of the issued capital or the legal power to direct or cause the direction of the general management and policies of the entity in question.
"Distributor" means the authorized distributor of KABOOM from whom You have acquired KABOOM.
"Effective Date" is defined in Section 8 below.
"Evaluation Version" means the limited version of KABOOM that is intended for product evaluation purposes only.
"Keys(s)" means cryptographic software License Key/Keys required for the use of KABOOM without limitations. License Key(s) are and shall remain the property of Sisulizer.
"License" means License to use KABOOM under the terms and conditions of this Agreement.
"Licensee's Software" means software and/or content for which You are the copyright holder.
"License Fees" means License fees referred to in Section 6 below.
"Sisulizer" means Sisulizer, address Graf-Salm-Str. 34, 50181 Bedburg, Germany.
"KABOOM" means the product(s) consisting of software in binary form ("Software") as well as documentation in electronic format ("Documentation"), if any, for which You have received the respective Key(s). Components of Software are specified in appendix "KABOOM" attached hereto.
"the Party / Parties" means Sisulizer and/or You.
"Third Party Software" means the computer software programs and/or other material delivered to You by Distributor simultaneously with KABOOM, if any, as specified in appendix "KABOOM" attached hereto. Third Party Software shall be licensed to You under separate license agreements concluded between You and third parties.
2. GRANT OF LICENSE
On the provisions and conditions set forth in this Agreement Sisulizer hereby grants You a non-exclusive, non-transferable, non-sublicensable, revocable license
(i) to use KABOOM by the number of natural persons for which You have paid the respective License Fees, any commercial use of Evaluation version is prohibited;
(ii) to make two (2) non-active copies of the media containing Software solely for backup purposes.
You shall have no right to use KABOOM or any part of it for any purpose other than specified above. The prohibited uses include but are not limited to:
(i) any licensing, selling, leasing or loaning of KABOOM, in whatever technical form, in whole or in part;
(ii) any modifying, translating, reverse engineering, de-compiling, disassembling, converting to another programming language or otherwise attempting to reconstruct or discover the source code of Software or any part of it for any purpose;
(iii) any use of KABOOM in any manner or form for the purpose of avoiding fulfillment of the obligations under this Agreement;
(iv) any use of Documentation to any other purpose than for supporting Your use of KABOOM;
(v) removal of any copyright and/or trademark notices and any other proprietary rights legends from KABOOM.
You shall not pass any representation or warranty from Sisulizer to any third party.
The grant of License shall not be deemed to result in the sale, transfer or any other conveyance of Sisulizer's and/or third parties' trademarks or any other intellectual property rights of whatsoever nature held or used by Sisulizer to You. Sisulizer will retain all rights in and to Sisulizer's trademarks, KABOOM as well as to the results of any work performed by Sisulizer under this Agreement or the Maintenance Agreement.
3. INSPECTION OF KABOOM
You shall inspect KABOOM immediately after receiving KABOOM and inform Distributor without undue delay in writing of any non-conformities of KABOOM of the components specified in appendix "KABOOM".
KABOOM shall be considered accepted, unless Distributor is otherwise notified within forty (40) days of receipt by You of both KABOOM and Key(s).
Sisulizer shall have no obligation to provide support or maintenance for KABOOM under this Agreement.
You may, at your option, propose Sisulizer and/or Distributor improvements or other modifications to KABOOM. By choosing to disclose such a proposal to Sisulizer and/or Distributor, You grant Sisulizer a free, perpetual, non-exclusive, irrevocable, world-wide right and license to use and/or utilize such proposal in the development work of Sisulizer's products as well as for any other purpose.
Further You hereby grant Sisulizer a free, perpetual, non-exclusive, irrevocable, world-wide right and license to use, copy, modify, distribute and license any bug fix or patch relating to Software, Documentation or KABOOM received by Sisulizer and/or Distributor in any form or technical format.
6. LICENSE FEES
The amounts of License Fees payable by You to Distributor for License are explained in Distributor's price list for KABOOM.
All sums payable under this Agreement shall be paid net, free and clear of all taxes, deductions and withholdings excluding, however, taxes based on the gross revenues or net income of Distributor.
7. WARRANTIES AND DISCLAIMERS
By clicking the "NEXT" button You acknowledge and accept that KABOOM is a complex software product and may include defects.
Sisulizer represents and warrants, subject to other terms of this Agreement, to You that for thirty (30) days after delivery of KABOOM, (a) the media containing KABOOM is free from defects caused by workmanship and raw materials and (b) KABOOM, as delivered, will perform in substantial conformance with the basic features.
EXCEPT AS PROVIDED FOR IN THIS SECTION 7 Sisulizer GIVES NO EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES REGARDING KABOOM INCLUDING, BUT NOT LIMITED TO, WARRANTIES REGARDING FITNESS FOR A PARTICULAR PURPOSE, DESIGN, NON-INFRINGEMENT OR MERCHANTABILITY.
You acknowledge and accept that while using KABOOM some functionality or functionalities of KABOOM may require data to be transmitted through Internet and further, that under no circumstances shall Sisulizer be liable for Your data security.
You further acknowledge that Sisulizer shall not be liable for You loosing Key(s) or for any damage and/or costs caused by non-fulfilment of Your technical environment of the system requirements specified in appendix "KABOOM" attached hereto.
UNDER NO CIRCUMSTANCES WILL Sisulizer BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE OF ANY KIND OR NATURE WHATSOEVER, WHETHER BASED ON CONTRACT, TORT, (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO KABOOM OR THIS AGREEMENT, EVEN IF Sisulizer HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL Sisulizer BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE FOR KABOOM. THE ABOVE PROVISION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL Sisulizer'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF LICENSE FEES (License Fees) RECEIVED BY DISTRIBUTOR FROM YOU.
THIRD PARTY SOFTWARE (Third Party Software) SHALL NOT BE CONSIDERED TO BE PART OF KABOOM. Sisulizer ACCEPTS NO LIABILITY WHATSOEVER FOR THIRD PARTY SOFTWARE (Third Party Software).
YOU UNDERSTAND AND ACCEPT THAT Sisulizer HAS NO RIGHT TO BIND ITS AFFILIATES IN ANY WAY AND FURTHER THAT Sisulizer PASSES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF WHATEVER NATURE FROM ITS AFFILIATES OR ANY THIRD PARTY TO YOU.
YOU ACKNOWLEDGE AND ACCEPT THAT Sisulizer SOLUTION IS NOT DESIGNED OR LICENSED TO BE USED FOR LIFE-CRITICAL TASKS. Sisulizer EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM RUNNING KABOOM ON SYSTEMS RUNNING LIFE-CRITICAL APPLICATIONS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF KABOOM ON SUCH SYSTEMS RUNNINGLIFE-CRITICAL APPLICATIONS.
8. TERM AND TERMINATION
This Agreement shall be deemed to have been entered into at the moment You click the "NEXT" button ("Effective Date") and shall remain in force until terminated according to this Section 8.
Sisulizer shall have the right to terminate this Agreement with immediate effect by written notice to You if You have materially breached any of the terms and conditions of this Agreement as well as in the event the delay or non-performance of either Party has continued for a period of six (6) months due to reasons of Force Majeure (under Section 11 below). Material breaches shall include, but not be limited to, any breach of the terms governing payment of License Fees.
This Agreement may be terminated without cause by Sisulizer with six (6) months' written notice to You. However, this Agreement shall not terminate under this provision of six (6) month termination before the second (2nd) anniversary of this Agreement.
Termination of the Maintenance Agreement shall not be deemed to form a cause for termination of this Agreement.
You may terminate this Agreement at any time by destroying the media containing KABOOM and all copies thereof as well as Key(s).
In the event of termination of this Agreement for whatever reason You will not be refunded any part of License Fees.
9. EFFECTS OF TERMINATION
In the event of termination of this Agreement for whatever reason:
(i) You shall immediately cease to use KABOOM and any part of it;
(ii) You shall immediately remove all copies of Key(s) from any and all computers and storage devices and destroy Key(s); and
(iii) You shall within fourteen (14) days of the date of termination of this Agreement at Sisulizer's option either (a) deliver KABOOM to Sisulizer at Your cost, or (b) destroy KABOOM and deliver to Sisulizer a certificate of comprehensive destruction signed by Your authorized officer.
Any termination of this Agreement shall be without prejudice to the accrued rights of the Parties under this Agreement. The Sections 1, 5, 6, 7, 9, 10 and 12 shall survive the termination of this Agreement.
KABOOM and Key(s) are confidential and proprietary information of Sisulizer. You agree to maintain KABOOM and Key(s) in confidence and use the same degree of care, but in no event less than reasonable care, to avoid disclosure of KABOOM and Key(s) as You follow with Your own confidential and proprietary information of similar type and importance.
11. FORCE MAJEURE
The terms and conditions of this Agreement shall be subject to Force Majeure and neither Party shall be responsible for any consequences caused by circumstances beyond his reasonable control, including but without limitation to war (whether declared or not), acts of government or the European Union, court decisions, export or import prohibitions, breakdown or general unavailability of transport, general shortages of energy, fire, explosions, accidents, strikes or other concerted actions of workmen, lockouts, sabotage, civil commotion and riots.
If either Party suffers delay in the execution of his contractual obligations due to such circumstances, the Party shall as soon as possible give the other Party notice in writing of the cause of delay. Such Party shall, however, perform said contractual obligations as promptly as reasonably practicable after removal of the cause and/or its effects.
Neither Party shall claim damage or any other compensation from the other Party for delays or non-fulfillment of this Agreement caused by Force Majeure.
12. APPLICABLE LAW AND ARBITRATION
This Agreement shall be interpreted and construed in accordance with the laws of the Federal Republic of Germany, without regard to conflicts of law principles. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Any controversy or claim arising out of or relating to this Agreement shall be primarily settled amicably. If this is not possible, the controversy or claim shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator selected according to the referred arbitration rules. The arbitration shall be conducted in Cologne, Germany.
Judgement upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be.
Notwithstanding the above provisions of Section 12, Distributor shall have the right to collect matured undisputed debts in any court having jurisdiction over You.
Any notice required or authorized to be given hereunder or any other communication between the Parties provided for under the terms of this Agreement shall be served by prepaid registered airmail letter, by guaranteed overnight courier, or by telefax addressed to either Party at its registered office or at its address or telefax number given in this Agreement or any other address or telefax number notified by either Party to the other as its address for service. Any notice so given by post shall be deemed to have been served twelve (12) days after the same shall have been mailed (the day of mailing not included) and any notice so given by telefax shall be deemed to have been received on receipt by the sender of the recipient's confirmation and in proving such service it shall be sufficient to prove that the letter containing the notice was properly addressed and put into the post or the telefax transmitted and the referred confirmation received.
English language shall govern all documents, notices and meetings as well as the arbitration procedure and awards relating to this Agreement. The captions to Sections in this Agreement do not form a part of this Agreement nor may they be used to assist in its interpretation.
Both Parties shall have the right to refer to the existence of this Agreement in their marketing as of the Effective Date. Sisulizer may also include Your trademark and trade name in Sisulizer's printed and electronic customer lists.
This Agreement shall not create a relationship of principal and agent between the Parties, and under no circumstances shall either Party be considered to be an agent of the other. Neither Party shall have any authority to bind the other Party to any obligation or to represent the other in any circumstance and both Parties agree not to so bind or represent the other.
This Agreement may be amended only by a separate agreement signed by duly authorized representatives of both Parties referring to this Agreement and identifying the agreed amendments.
Neither Party shall, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, assign or otherwise transfer its rights and obligations under this Agreement in whole or in part.
No delay, neglect or forbearance by either Party in enforcing against the other Party any term or condition of this Agreement shall be, or be deemed to be, a waiver nor shall it in any way prejudice any right of that Party under this Agreement.
Should a part of this Agreement be declared invalid and/or unenforceable for any reason whatsoever the remaining portion of this Agreement shall not be prejudiced and shall continue in full force and effect. However, if the invalidity of any provision materially alters the original balance of interests of the Parties, the Parties shall negotiate in good faith new provisions to restore their original intention.
This Agreement sets forth the entire agreement and understanding of the Parties relating to the object hereof and merges all prior discussions and agreements of the matter hereof between them.
KABOOM includes the following applications specified below:
a) Kaboom Application
(ii) SYSTEM REQUIREMENTS AND SUPPORTED PLATFORMS
System requirements and supported platforms of KABOOM are specified below:
Windows 2000, Windows XP or higher. Windows XP recommended.
BY CLICKING THE "YES" BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTAND AND ACCEPT THE ABOVE TERMS AND CONDITIONS INCLUDING BUT NOT LIMITED TO PROVISIONS OF SECTIONS 7 AND 9 AND AGREE TO BE BOUND BY THEM.