» version 220.127.116.11 - posted on 2008-08-01
Ngage Inc. Freeware End-User License Agreement
IMPORTANT - READ CAREFULLY
This Ngage Inc. Freeware End-User License Agreement ("EULA") is a legal agreement between you (either an individual person or a single legal entity, who will be referred to in this EULA as "User") and Ngage Inc. for the Ngage Inc. freeware product that accompanies this EULA, or that is subsequently provided to the User pursuant to further order, including any associated media, printed materials and electronic documentation (collectively, the "Freeware Product"). By installing, copying, downloading, accessing or otherwise using the Freeware Product, User agrees to be bound by the terms of this EULA. If User does not accept and agree to the terms and conditions of this EULA, Ngage Inc. is unwilling to license the Freeware Product contained herein to User. In that case do not install, access or use the Freeware Product; instead delete the Freeware Product from your computer or network in whatever form(s) it exists.
MEANING OF WORDS USED IN THIS EULA
Ngage Inc.: means Ngage Inc. and any or all of its divisions or subsidiaries.
User: the individual person or single legal entity that is deemed to be the licensed user of the Product under the terms of this EULA.
Freeware Bundle: refers to when two or more Ngage Inc. Freeware Products are supplied together as an inclusive package. When Freeware Products are supplied as a Freeware Bundle they are deemed a single Freeware Product in terms of their usage and transfer. In no event shall User be permitted to install any portion of a Freeware Bundle on a computer or network for which any of the Freeware Products are not licensed.
OWNERSHIP AND GRANT OF LICENSE
The Freeware Product is licensed, not sold. The Freeware Product is the sole property of Ngage Inc. and is protected by all applicable intellectual property and contract laws, including but not limited to laws relating to patent, copyright and trademark laws, and by applicable international treaties and trade provisions. Any breach of Ngage Inc.s rights as the sole owner of the Freeware Product and all intellectual property rights contained therein and in the Freeware Product may subject the offender to civil and criminal penalties, including fine and/or imprisonment.
This EULA grants User the non-exclusive right to: install and use the Freeware upon a single computer. In no event, however, shall User be permitted to (a) use the freeware on a networked basis or (b) redistribute the Freeware, whether for commercial gain or for no gain. Any use in violation of the license shall constitute not only breach of this EULA, but a violation of national and international copyright laws. In the event that any provision of this EULA is breached by User the license granted by this EULA shall automatically terminate without further action by Ngage Inc., and whether or not User abides by such termination.
FREEWARE PRODUCT TRANSFER
User may permanently transfer the entire Freeware Product to any third party only upon obtaining written consent from Ngage Inc., providing that the original User destroys all remaining copies of the Freeware Product, and any portions thereof, and that the third party accepts the terms of this EULA in its entirety.
In the event that User has received this Freeware Product as part of a Freeware Bundle, then all Freeware Products supplied as part of that Freeware Bundle must be transferred. Under no circumstances can a Freeware Product supplied as part of a Freeware Bundle be transferred separately.
User may not distribute the Freeware.
User may not modify, translate, or make derivative works of the Freeware Product.
User may not sub-license, rent, lease or provide service bureau services such as Freeware leases or rentals with any portion of the Freeware Product.
To the maximum extent permitted under law, if during the warranty period set forth below, a defect is discovered by User, Users exclusive remedy hereunder shall be, at the sole option of Ngage Inc., the repair or replacement of the Freeware Product. In order to obtain such remedy, User must return the Freeware Product in its entirety to Ngage Inc., for a replacement copy.
WARRANTIES AND WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY
THE FREEWARE PRODUCT IS PROVIDED ENTIRELY AS IS. NGAGE INC. EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED OR EXPRESS WARRANTIES OF TITLE.
TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WILL NGAGE INC. BE LIABLE TO USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, INTERRUPTION TO BUSINESS, LOSS OF INFORMATION OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUPPLY TO OR USERS USE OF OR INABILITY TO USE THE FREEWARE PRODUCT, WHETHER NGAGE INC. HAS BEEN INFORMED OF THE POSSIBILITY OF THE SAME OR NOT, AND WHETHER STYLED AS A CLAIM IN CONTRACT, TORT OR OTHER LEGAL THEORY.
USER ACKNOWLEDGES THAT NO PROMISE, REPRESENTATION, WARRANTY OR UNDERTAKING HAS BEEN MADE BY NGAGE INC. TO ANY PERSON OR COMPANY ON USERS BEHALF AS TO THE PROFITABILITY OR ANY OTHER CONSEQUENCES OR BENEFITS TO BE OBTAINED FROM DELIVERY TO USER OF THE FREEWARE PRODUCT. USER HAS RELIED UPON ITS OWN SKILL AND JUDGMENT IN ACQUIRING THE FREEWARE PRODUCT. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT A COMPLETE LIMITATION OF DAMAGES AS SET FORTH HEREIN, USER AGREES THAT ITS DAMAGES SHALL BE LIMITED TO ONE DOLLAR (U.S.). NOTHING HEREIN SHALL BE CONSTRUED AS ATTEMPTING TO ENFORCE RIGHTS AGAINST USER BEYOND THOSE PERMITTED BY APPLICABLE LAW.
Important Exception to Limitation of Liability and Warranty
The above limitation may not apply to User as legislation, such as the Australian Trade Practices Act of 1974, may imply into this EULA a warranty or condition and such legislation may avoid or prohibit the terms of this EULA from excluding, restricting or modifying the application of such warranty or conditions. Nothing in this EULA is intended to exclude, restrict or modify any liability of Ngage Inc. under Part VA of the Australian Trade Practices Act of 1974 or any similar law under any other jurisdiction in which the Freeware Product is sold.
This EULA embodies the entire agreement between Ngage Inc. and User in relation to the terms on which User is licensed to use the Freeware Product; any written or oral agreement between the parties in connection with the subject matter hereof is hereby superseded and of no further force or effect. This EULA may be amended only by a writing executed by both parties.
This EULA is governed by the laws of the State of California, USA. Ngage Inc. and User each irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the state and federal courts of California, USA, and each knowingly waives any objection that the courts therein do not have personal jurisdiction or that the courts are an improper forum, or not a convenient forum. The International Sale of Goods Convention shall not apply to this License Agreement, and is expressly excluded hereunder.
Depending upon the jurisdiction in which the Freeware Product is sold, this License Agreement may be subject to certain government export and other restrictions. For example, if User has purchased the Freeware Product in the United States, this License Agreement is subject to and conditional upon compliance with United States export regulations and User shall comply with all applicable laws and regulations of the United States, including export, relating to the Freeware Product and the use thereof, and User shall provide such documentation and assurances as are required from time to time to comply herewith. User shall pay any and all taxes, export/import customs fees, duties, excise or other charges of whatever nature as or now may hereafter be imposed upon or levied in connection with the license, use, possession, exportation, or importation, or servicing of the Freeware Product (except for taxes imposed on the net income of Ngage Inc.) and any such taxes, fees, duties or such similar costs imposed on Ngage Inc. shall be promptly reimbursed to Ngage Inc. by User upon demand and may be added to the price for this license at Ngage Inc.s option.
If any provision of this EULA is or at any time becomes illegal, prohibited, void or unenforceable for any reason, that provision is severed from this EULA and the remaining provisions of this EULA shall continue to be enforceable and are to be construed with such additions, deletions and modifications as are necessary to give effect to the remaining provisions of this EULA.
THIS LICENSE IS EFFECTIVE UNTIL TERMINATED. User may terminate it by destroying or returning all copies of the Freeware Product and all of its component parts. THIS LICENSE WILL TERMINATE AUTOMATICALLY WITHOUT FURTHER ACTION FROM NGAGE INC. IF USER FAILS TO COMPLY WITH ANY TERM OR CONDITION OF THIS AGREEMENT.
End User License Agreement.