END USER LICENSE AGREEMENT
END-USER LICENSE AGREEMENT FOR COMMUNITAKE ICOM AND INTACT PRODUCT
This COMMUNITAKE End-User License Agreement ("EULA") set forth the legally binding terms between you (either on your own behalf or on behalf of other legal entity you represent) and CommuniTake Technologies Inc., its subsidiaries, shareholders, affiliates (including entities under common control), employees, directors, officers, contractors, and all of their respective authorized representatives, licensors, and assigns ("COMMUNITAKE“). The EULA governs your rights to use any COMMUNITAKE proprietary hardware and/or software and/or updates and/or other supplemental components provided with the device or downloaded and installed on it (“SOFTWARE”), as well any associated services, product support, programs, tools, materials, or information (“services”) unless other terms or license apply on such SOFTWARE or services. You acknowledge that this EULA shall not apply to other enterprise SOFTWARE or other COMMUNITAKE’s service offerings, including other enterprise services for devices using the SOFTWARE or any future enterprise services identified by COMMUNITAKE, which shall be applied only by COMMUNITAKE Solution License Agreement and/or other relevant terms.
BY USING ANY COMMUNITAKE DEVICE, INSTALLING, COPYING, DOWNLOADING OR USING THE SOFTWARE OR ITS SERVICES WITH YOUR DEVICE, YOU REPRESENT THAT YOU HAVE FULL LEGAL CAPACITY TO ENTER INTO A LEGALLY BINDING AGREEMENT, AND YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA OR ANY PART OF IT, YOU ARE PROHIBITED TO USE THE SOFTWARE OR SERVICES.
1. RIGHT TO USE THE SERVICES
2. GRANT OF LICENSE
COMMUNITAKE grants you a personal, revocable, non-exclusive, non-transferable, royalty, limited license to download, install and use the SOFTWARE and services, for your own personal or internal business use, subject to the terms and conditions of this EULA, or any other terms and conditions that COMMUNITAKE may apply on the SOFTWARE and services. If you are installing this copy of the SOFTWARE as an upgrade, update, patch or enhancement of a prior release of the same SOFTWARE which was installed on the same device, your rights under the prior license agreement for the SOFTWARE and services are terminated, and only the terms and conditions of this EULA apply on you.
3. RESTRICTIONS AND LIMITATIONS ON USE OF THE SOFTWARE PROHIBITION OF ALTERATION
Except as permitted by Section 1 (Grant of License), you may not:
Copy, modify, transmit, adapt, republish, reproduce, print relevant materials, vary or create derivative works based on the SOFTWARE or service in whole or part;
Rent, lease, sub-license, sell or otherwise commercially exploit in any manner the SOFTWARE;
Maneuver or hack any technical limitations in the SOFTWARE or services;
Reverse engineer, decompile, robot, disassemble, debug, hook, harm, spoof or pirate the SOFTWARE or services;
Probe, scan or test the vulnerability of the SOFTWARE or its services
Use any other device, software, or routine to interfere with the proper working of the SOFTWARE or its services;
Attempt to gain unauthorized access to any feature, data, or component of the SOFTWARE or its services by any means.
Conduct any behavior damaging network security by using the SOFTWARE, including but not limited to: using unauthorized data or entering unauthorized server or account; without permission, entering a public network or others' operating system and deleting, amending or adding stored information; without permission, attempting to explore, scan or test the system or network vulnerability of this Software or conducting any other behavior damaging network security; attempting to interfere in or destroying the normal operation of the system or website of the SOFTWARE, intentionally spreading malicious program or virus or conducting any other behavior destroying or disturbing normal network information service; and, fabricating the whole or partial name of TCP/IP data package;
Log on or use the SOFTWARE and services through the third-party compatible software or system not developed, authorized or recognized by COMMUNITAKE, or produce, launch or spread the aforesaid tool;
Publish, transmit, spread or store any content in violation of any local law of the place where the user is located by virtue of this Software;
By virtue of the SOFTWARE, publish, transmit, spread or store any content infringing upon the legitimate right of others such as intellectual property right or business secret;
By virtue of this SOFTWARE, publish, transmit or spread advertising information, spam and junk information;
Use the SOFTWARE or any other service provided by COMMUNITAKE in any other illegal way, for any illegal purpose, or in any way inconsistent with the license hereunder.
You understand and agree that in case COMMUNITAKE suspects that you violate this Agreement, the license may be revoked, or other appropriate measures within the scope of this Agreement might be taken.
COMMUNITAKE may add, update, upgrade, delete or change any part of the SOFTWARE or services at any time in COMMUNITAKE sole discretion, and any such action will take effect whether a notice was delivered to you or not.
While the SOFTWARE update will be generally available, in some circumstances, the SOFTWARE updates will only be offered by your service provider or by your network carrier, and such SOFTWARE updates will be governed by your contractual relationship with your service provider or your network carrier.
To provide updates to the SOFTWARE, you agree that COMMUNITAKE and its affiliates may collect and use technical information gathered as part of the product support services related to the SOFTWARE provided to you, if any, such as IMEI (your device's unique identification number), device number, model name, your device's current software version, MCC (Mobile Country Code), and MNC (Mobile Network Code). COMMUNITAKE may use this information solely to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
5. USE YOUR CONTENT
You are solely responsible for any content and other material that you submit, publish, transmit, display, or make available through, or with the SOFTWARE or the Services. Notwithstanding the foregoing, you are not allowed to use, upload, or post through the SOFTWARE or the Services any illegal content, including, without limitation, pornographic, harassing, abusing, or harming Content.
You represent and warrant that: (a) you are the sole owner of all the content, or you have all rights, licenses, consents, and releases that are necessary to grant to COMMUNITAKE the rights in the content; and (b) your content or your associated actions with the content will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. For the avoidance of any doubt, COMMUNITAKE does not claim any ownership rights in any such content and nothing in these Terms will be deemed to restrict any propriety rights that you may have in the content.
6. FEES AND SUBSCRIPTIONS
You acknowledge that the license granted to you in this EULA is subject to payment of the applicable fees which may apply to the SOFTWARE and/or services (or portions thereof). If you are acquiring the SOFTWARE and services (or any portion thereof) on a subscription basis or as part of a free trial, then the license shall apply only during the time period you have paid for.
7. COPYRIGHT AND TRADEMARKS
SOFTWARE and services are protected under intellectual property, copyright, trademark, and other laws (“Proprietary Rights”). You acknowledge and agree that COMMUNITAKE or its suppliers own all rights, title and interest in the SOFTWARE and services (including without limitation any images, photographs, animations, video, audio, music, text, and other applications incorporated into the SOFTWARE or any other intellectual property rights therein or related thereto), and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses to copyrights, trade secrets, trademarks, or other intellectual property rights other than expressly granted to you in this EULA. COMMUNITAKE reserve the right to cancel, suspend, disable or terminate the accounts of users who are infringing or charged with infringing the Proprietary Rights. You may not use the Proprietary Rights or any variation thereof, in any way, without the owner’s prior written consent, or for promotional purposes. You will not, deliberately or inadvertently claim, suggest or give the appearance or impression of a relationship with or endorsement by, the owner of the applicable Proprietary Rights. Nothing contained herein will be construed as granting, by estoppel, implication or otherwise, any right or license to use any of the Proprietary Rights without the written permission of the owner of the applicable Proprietary Rights.
8. MARKING AND MAINTENANCE OF COPYRIGHT
You may not remove or change the marking of the copyright from the SOFTWARE and all of its copies unless you gained an explicit prior written consent from COMMUNITAKE to do so.
9. THIRD-PARTY SOFTWARE
In order to obtain, access, or use the SOFTWARE or services (or portions thereof) you may be required to obtain, access, and/or use a third-party software, services, or products (“third party product”). To the extent that any third-party intellectual property is incorporated within the SOFTWARE and services, you agree that such a third party is a third-party beneficiary of the terms of this EULA to the extent of the third-party license to COMMUNITAKE. You must ensure that you are permitted to obtain, access, and use such third-party products and that you comply with all usage rules governing any third-party digital storefront from which you acquire such third-party products. The SOFTWARE may also include third-party programs or applications that COMMUNITAKE, not the third party, licenses to you under this EULA (“third party programs”). Notices, if any, for the third-party product or programs are included for your information only.
The SOFTWARE is licensed for a single device, and it may not be shared, transferred to, or used concurrently on other devices or components, except if it has expressly agreed between you and COMMUNITAKE.
Notwithstanding the foregoing and to the extent permitted by the laws of your permanent residence, you may transfer this license and your original and/or any authorized backup copy of the SOFTWARE to another authorized person or legal entity, provided: (1) the other authorized person/legal entity receives a copy of this Agreement or other applicable COMMUNITAKE SOFTWARE License Agreement and agrees to be bound by its terms and conditions; (2) you retain no copies of the SOFTWARE in your possession and/or control; and (3) you at all times comply with all applicable export control laws, regulations, and treaties.
11. INTERNET ACCESS
Some features of the SOFTWARE may require your device to have access to the Internet and may be subject to restrictions imposed by your network or Internet provider. Unless your device is connected to the Internet through a Wi-Fi connection, the SOFTWARE will access the internet through your mobile network, which may result in additional charges depending on your payment plan. Your deployment of some features of the SOFTWARE may be affected by the suitability and performance of your device hardware or data access.
12. WARRANTIES AND SUPPORT
COMMUNITAKE may provide you with product support related to the SOFTWARE and services. You may use and receive the support in accordance with the user guide, online documentation, or the COMMUNITAKE’s policies or other materials or guidelines provided to you. Any third-party product that is provided to you as part of the SOFTWARE and services, shall be subject solely to such third party’s terms and conditions, and any support for such third-party product shall be subject solely to the third party’s own support. For the avoidance of any doubt, COMMUNITAKE does not take any responsibility for supporting such a third-party product.
13. LIMITATION OF LIABILITY
THE SOFTWARE AND SERVICES ARE LICENSED “AS-IS” AND ONLY IN ACCORDANCE WITH THE DOCUMENTATION PROVIDED BY COMMUNITAKE. YOU EXCLUSIVELY BEAR ANY RISK OR DAMAGE ARISING OF USING IT. YOU ARE SOLELY AND ENTIRELY LIABLE FOR THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SERVICES. COMMUNITAKE GIVES NO EXPRESS WARRANTIES, GUARANTEES OR COMMITMENTS, AND SHALL NOT BE LIABLE FOR LOSSES ARISING FROM YOUR USE OF THE SOFTWARE AND SERVICES AND FOR ANY LOSSES ARISING FROM YOUR INABILITY TO USE THE SOFTWARE AND SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMMUNITAKE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND SERVICES, SUBJECT TO SECTION 10 OF THIS EULA.
14. LIMITATIONS AND EXCLUSIONS
YOU CAN RECOVER FROM COMMUNITAKE ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID IF AT ALL TO COMMUNITAKE FOR THE SOFTWARE OR SERVICES FOR THE THREE MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM. THIS LIMITATION APPLIES: (A) TO ANYTHING RELATED TO THE SOFTWARE AND SERVICES; AND (B) EVEN IF COMMUNITAKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COMMUNITAKE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES. THE ABOVE LIMITATION OR EXCLUSION SHALL NOT APPLY: (I) TO THE EXTENT THAT YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS OR STATUTORY GUARANTEES UNDER ANY LAWS OF YOUR PERMANENT RESIDENCE OR IF YOUR COUNTRY DOES NOT ALLOW COMMUNITAKE TO EXCLUDE OR LIMIT ITS LIABILITY, WHICH THIS EULA CANNOT CHANGE OR AFFECT. (II) TO THE EXTENT PERMITTED UNDER ANY LAWS OF YOUR PERMANENT RESIDENCE, COMMUNITAKE EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (III) IN RELATION TO ANY THIRD PARTY CONTENT (INCLUDING CODE), THIRD-PARTY INTERNET SITES OR LINKS, THIRD PARTY SOFTWARE OR PRODUCT, DATA, IN WHICH CASE COMMUNITAKE’S LIABILITY SHALL BE EXCLUDED ENTIRELY.
Without prejudice to any other rights, COMMUNITAKE is permitted to terminate this EULA or your rights under this EULA at any time if you fail to comply with the terms and conditions of this EULA. The license granted to you under this EULA will automatically be terminated upon: (a) the end of any trial time period that is not renewed or replaced with an alternative offering by COMMUNITAKE, (b) when you stop paying any applicable fees or breaching this EULA, (c) COMMUNITAKE stopped to make the SOFTWARE or service generally available, or (d) when you are given notice of such termination by COMMUNITAKE. Upon such termination, all rights granted to you under this license shall be terminated, and you must promptly erase or remove the SOFTWARE from all products or applications in your possession and/or control, and immediately stop using the SOFTWARE and any services. The terms of this paragraph shall survive any termination of this EULA.
17. ENTIRE AGREEMENT
This EULA, and any terms and conditions for supplements, updates, and services that you use, constitute the entire legal agreement for the SOFTWARE and services.
18. APPLICABLE LAW
This EULA shall be governed by and construed in accordance with the laws of England. In the case of conflict between laws rules, England law shall prevail. Please note that the use of the SOFTWARE and services may be subject to other local, state, national, and international laws.
This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You agree that COMMUNITAKE shall be entitled to seek and be awarded an injunction or other appropriate equitable relief to restrain any breach of Your obligations under this EULA. Accordingly, you waive any requirement that COMMUNITAKE can deposit any bond or other security to court, instead of money, as part of the injunctive, in the event that any injunctive or equitable relief is sought by or awarded to COMMUNITAKE to enforce any provision of this EULA.
19. LEGAL EFFECT
This EULA describes certain legal rights and obligations between you and COMMUNITAKE and/or third parties. You may have other rights or obligations under any law or regulation of your permanent residence. You may also have rights or obligations with respect to the party from whom you acquired third party software or product. This EULA does not affect or change your rights or obligations under the laws or regulations of your permanent residence if these laws or regulations do not permit it to do so.
Should one or more of the stipulations in these Terms be held to be invalid by competent jurisdiction, the remaining clauses shall remain valid and enforceable. These Terms are personal to You and not assignable. No joint venture, partnership, employment, or agency relationship exists between You and COMMUNITAKE as a result of these Terms or arising out of your use of the SOFTWARE. Our failure to insist upon or enforce strict performance of any provision of this Terms shall not be construed as a waiver of any provision or right under these Terms or at law remedies. Neither the course of conduct between the parties nor trade practice modifies any provision of the Terms.
COMMUNITAKE may assign its rights and duties under this Agreement to any party and at any time, without notice to you.
If you have any questions regarding this agreement and other products, please contact COMMUNITAKE. In case of conflict, the English version of the EULA shall prevail.