!SMACK! End user license agreement
WARNING: PERMISSION TO USE THE SOFTWARE IS CONDITIONAL UPON YOU, THE LICENSEE, AGREEING TO THE TERMS SET OUT BELOW. YOU MUST READ THIS AGREEMENT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. ACCEPTANCE SHALL BIND YOU AND ALL OF YOUR EMPLOYEES IN TERMS OF THIS LICENSE. THIS INCLUDES, IN PARTICULAR, ANY LIMITATIONS ON USE, TRANSFERABILITY, WARRANTY AND LIABILITY. YOU AGREE THIS AGREEMENT IS ENFORCEABLE IN THE SAME MANNER AS ANY WRITTEN NEGOTIATED CONTRACT BEARING YOUR SIGNATURE OR SEAL. IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE.
1. LICENSE
Pursuant to this Agreement, the Licensee acquires a non-exclusive right to use the Software strictly in accordance with the provisions of this Agreement. "Use" includes (without limitation) storing, loading, installing, executing or displaying the Software.
2. EVALUATION PERIOD
The Licensee may use the Software for evaluation purposes for a period of 30 days, commencing upon the Licensee`s acceptance of this Agreement ("the evaluation period"). If the Licensee wishes to continue to use the Software beyond the evaluation period, the Licensee must purchase a serial key for the Software from the Licensor in accordance with the provisions below.
3. CONTINUATION OF LICENSE
If the Licensee purchases a serial key for the Software, the License to use the Software shall, subject to the terms of this Agreement, continue in perpetuity.
If the Licensee does not purchase a serial key for the Software, the License to use the Software shall terminate at the completion of the evaluation period and the Licensee must cease to use the Software and remove all copies of the Software from its systems.
After the completion of an evaluation period pursuant to this Agreement, the Licensee is only permitted to download and install a new copy of the Software if:
(a) an updated version of the Software has been released by the Licensor; and
(b) at least 30 days has elapsed since the Licensee`s last evaluation period expired.
4. DOCUMENTATION
The License extends to the use of any documentation distributed with the Software. Such documentation may not be copied, modified or used in any way not contemplated or expressly authorised by this agreement.
5. LICENSEEE’S OBLIGATIONS
The Licensee hereby undertakes the following obligations:
(a) to not copy, reproduce, translate, adapt, vary or modify the Software except as expressly authorised by this Agreement;
(b) to not sublicense, resell, or otherwise distribute the Software;
(c) to not reverse engineer, disassemble, decompile, or make any attempt to discover the source code of the Software;
(d) to supervise and control the use of the Software in accordance with the terms of this License;
(e) to ensure its employees, subcontractors and other agents who have authorised access to the Software are made aware of and comply with the terms of this Agreement;
(f) to not provide or otherwise make available the Software in any form to any person other than those referred to in paragraph e without the written consent of the Licensor; and
(g) to not use the Software for or in connection with a service bureau operation;
6. THIRD PARTY RIGHTS
The Licensee hereby acknowledges and agrees that the Software is provided on the basis that it will be used for lawful purposes only. The Licensee undertakes and warrants that it will not use the Software for any illegal or unlawful purpose, including, without limitation, the breach of a third party`s copyright or other intellectual or industrial property rights. In this regard, the Licensee hereby indemnifies the Licensor from any and all claims that may arise out of the Licensee`s failure to comply with its obligations pursuant to this clause.
7. INTELLECTUAL PROPERTY
The Licensee acknowledges that the Software and its associated documentation (other than any third party products which may be distributed with the Software) are the subject of intellectual property rights, which the Licensor is authorised to commercialise. The Licensee will not during or any time after the expiry or termination of this Agreement permit any act which infringes those intellectual property rights. The Licensee hereby indemnifies the Licensor fully against all liabilities, costs and expenses which it may incur as a result of the Licensee`s breach of this clause.
8. WARRANTY
The Licensee acknowledges that the Software is not guaranteed to be error free and further acknowledges that the existance of any such errors will not constitute a breach of this Agreement.
Except as expressly provided by this Agreement, the Software is provided on an "as is" basis without any representation, warranty or condition, whether express or implied, statutory, out of a course of dealing or usage, trade or otherwise including any implied warranty or condition of merchantability quality or fitness for any particular purpose or use.
In the event any statute implies terms in to this agreement which cannot be lawfully excluded, such terms will apply to this agreement, save that the liability of the Licensor for breach of any such implied term will be limited, at the option of the Licensor, to any one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or a refund on a pro rata basis;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(h) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Except as expressly provided to the contrary in this Agreement, the Licensor will not be liable to the Licensee for any loss or damage, including special, indirect or consequential damages (such as loss of profits) arising out of a breach of this licence or arising out of the supply of a defective program.
The Licensee acknowledges that it has exercised its independent judgment in acquiring the Software and has not relied on any representation made by the Licensor which has not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by the Licensor.
9. TERM OF LICENSE
The License shall continue until such time as this Agreement is terminated. This Agreement may be immediately terminated by the Licensor in the following circumstances:
(a) if the Licensee is in breach of any term of this Agreement;
(i) if the Licensee, being a corporation, becomes the subject of insolvency proceedings;
(j) if the Licensee, being a firm or partnership, is dissolved; or
(k) if the Licensee destroys the Software and/or documentation for any reason.
Upon termination, the Licensee or its representative shall destroy any remaining copies of the Software and documentation or otherwise return or dispose of such material in the manner directed by the Licensor.
Termination pursuant to this clause shall not affect any rights or remedies which the Licensor may have otherwise under this license or at law.
10. THIRD PARTY LICENSES
To the extent that the Software contains MPEG-4 codecs, THE SOFTWARE IS LICENSED UNDER THE MPEG-4 VISUAL PATENT PORTFOLIO LICENSE FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER FOR (i) ENCODING VIDEO IN COMPLIANCE WITH THE MPEG4-VISUAL STANDARD ("MPEG-4 VIDEO") AND/OR (ii) DECODING MPEG-4 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED BY MPEG LA TO PROVIDE MPEG4-VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION INCLUDING THAT RELATING TO PROMOTIONAL, INTERNAL AND COMMERCIAL USES AND LICENSING MAY BE OBTAINED FROM MPEG LA, LLC. SEE HTTP://WWW.MPEGLA.COM.
To the extent that the Software contains H.264/AVC codecs, THE SOFTWARE IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD ("AVC VIDEO") AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM.
11. ASSIGNMENT
The benefit of this agreement shall not be dealt with in any way by the Licensee (whether by assignment, sub-licensing or otherwise) without the Licensor`s written consent, such consent may be given or withheld in the absolute discretion of the Licensor. The Licensor may, upon notice in writing to the Licensee, assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
12. WAIVER
Failure or neglect by either party to enforce at any time of the provisions of this agreement shall not be construed or deemed to be a waiver of that party’s rights under this license.
13. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with, the laws of Queensland, Australia. The parties submit to the exclusive jurisdiction of the Queensland courts in relation to all disputes arising out of or in connection with this Agreement
14. DEFINITIONS
In the interpretation of this Agreement, unless the context or subject matter otherwise requires:
"Agreement" means this agreement, as it may be amended or supplemented from time to time;
"License" means the license to use the Software, granted pursuant to the terms of this Agreement;
"Licensee" means you, the end user, who accepts the terms of this Agreement to use the Software;
"Licensor" means the owner of the Software, ZacWare Pty Ltd (ACN 111 538 240); and
"Software" means the software the subject of this Agreement, being !SMACK!