SOFTWARE LICENSE AGREEMENT
PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT BEFORE INSTALLING, LOADING OR USING THE SOFTWARE. BY INSTALLING, LOADING OR USING THE SOFTWARE YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS LICENSE AGREEMENT AND AGREED TO BE BOUND BY THEM. IN THE EVENT THAT YOU DO NOT AGREE WITH ANY TERM OF THIS AGREEMENT THEN YOU MAY EITHER RETURN THE SOFTWARE TO ITS PLACE OF PURCHASE ALONG WITH ITS DISTRIBUTION MATERIALS FOR A COMPLETE REFUND OR DELETE THIS SOFTWARE WHERE IT WAS INCLUDED WITH YOUR PC WHEN PURCHASED.
1. Definitions
"Licensor" means ActiveXperts Software B.V. which is the manufacturer and owner of the SMS Component.
"Sub-Licensor" means Qbik New Zealand Limited at Auckland, New Zealand, which is the manufacturer and owner of the Host Software, and who has entered into an agreement with the Licensor to sub-license the SMS Component.
"Host Software" means: (a) the program known as WinGate, developed by the Sub-Licensor and which allows users on a local area network that are not directly connected to the Internet to access the Internet via a single machine on that local area network which is connected, either via a dial-up modem/ISDN connection or second Ethernet interface; and (b) all related documentation and textual and non-textual elements (e.g. screen displays, images, audio or video) of the WinGate software; and (c) all WinGate Software extensions, components or libraries, developed by the Licensor but expressly excluding third party software.
"Interface Component" means: The program developed by the Sub-Licensor to interface between the Host Software and the SMS Component.
"SMS Component" means: the program which when combined with the Interface Component form the product known as SMS Connector for WinGate. The SMS Component is developed by the Licensor which when working with the Host Software, enables the Host Software to send and receive and action SMS messages.
"Software" means the SMS Component and the Interface Component.
"Supplier" means the organisation from which You the End User purchased this license to use the Software or whom installed or supplied a trial version and/or license for the Software on Your PC.
"You" and "Your" means the licensee under this agreement.
2. License
2.1. The Licensor and Sub-Licensor grant You a non-exclusive, perpetual and not for resale license to use the Software and related documentation on a single computer strictly in accordance with the provisions of this agreement. You may make a single copy of the Software for the purposes of backup but not otherwise. Should You wish to use the Software on other computers You will first need to purchase an additional license for each such computer.
2.2. If You have obtained the Software on a trial or evaluation basis then:
(a) the Licensor and Sub-licensor grant You a thirty day time-expiring non-exclusive, non-sublicensable and not for resale license to install and evaluate the Software; and (b) You agree not to use the Software in a commercial or operational manner until You have obtained a full license from either the Licensor or a Supplier.
2.3. The Licensor and Sub-Licensor retain all other legal and equitable rights in, including title to, their respective components of the Software. If the Software has been provided to You on floppy disc, CD ROM or some other form of physical media then that physical media will be Your property.
2.4. The license granted to You in either clause 2.1 or 2.2 of this agreement will expire immediately on the expiration or termination of this agreement for whatever reason.
2.5. You undertake not to:
(a) copy, reproduce, translate, adapt, disassemble, decompile, reverse engineer, or otherwise vary or modify the Software without the written consent of the Licensor and Sub-Licensor, except as may be expressly permitted otherwise in this agreement; and (b) remove any proprietary labels or notices from the physical media upon which the Software was supplied (if any).
2.6. Any activation key is strictly confidential and personal to You and may not be disclosed to any third party. You undertake to take reasonable care to protect and secure any activation key from any third party.
2.7. The Licensor and Sub-Licensor reserve the right to enforce the terms of this license which may at their discretion comprise actions such as license key validation.
3. Warranties
3.1. Subject to clause 3.2, the Software is provided "as is" without warranty of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose. Neither the Licensor nor the Sub-Licensor warrant that the functions contained in the Software will meet Your requirements or that the operation of the Software will be uninterrupted or error free.
3.2. Some jurisdictions do not allow the exclusion of implied warranties, so depending on the jurisdiction in which You obtained Your license to use the Software or purchased Your computer (as the case may be) the exclusions in clause 3.1 of this agreement may not apply to You.
3.3. Under no circumstances will the Licensor, the Sub-Licensor or their Suppliers be liable to You or any other person (whether in contract or tort or otherwise) for any loss or damage of any kind, including consequential damage and loss of profits, caused directly or indirectly in connection with this license, the Software, Your use of or Your inability to use the Software.
3.4. In the event that the limitation contained in clause 3.3 is held to be invalid in Your jurisdiction for any reason then the Licensor and Sub-Licensor's liability shall be limited to the maximum extent permitted by law to any money paid by You for the right to use the Software (if any).
4. Intellectual Property
4.1. You acknowledge that all the intellectual property rights in the Software (including all source and object code, screen displays, associated packaging and documentation, trade names or trademarks, patents, registered designs, confidential information and trade secrets) are the sole property of the Licensor and Sub-Licensor. You will not during or at any time after the termination of this agreement contravene these rights or in any way question or dispute the ownership by the Licensor or Sub-Licensor of any such rights.
4.2. All information, data, drawings, specifications, documentation, software listings, procedures, source or object code which the Licensor or Sub-Licensor make available to You relating to the Software are proprietary and confidential. You will not disclose such information to any third party without the Licensor and Sub-Licensor's prior written consent.
4.3. You shall indemnify the Licensor and Sub-Licensor fully against all liabilities, costs and expenses which the Licensor or Sub-Licensor may incur to a third party as a result of any breach of the intellectual property provisions of section 4 of this agreement by You.
4.4. In the event that You previously used the Software on a trial basis then Your full license will have been accessed by way of an activation key obtained from the Licensor or a Supplier. This activation key is strictly confidential and personal to You and may not be disclosed to any third party.
5. Indemnity
5.1. You agree to indemnify the Licensor Sub-Licensor and Supplier for loss or damage they may suffer arising out of any breach of this agreement by You.
6. Termination of this license
6.1. This agreement will terminate immediately without notice and without prejudice to the remaining legal rights of the Licensor and of the Sub-Licensor if You fail to comply with any term or condition of this agreement.
6.2. Upon termination of this agreement You shall:
(a) either destroy the Software and documentation or return the Software and documentation to the place where it was obtained; and (b) destroy any records of the activation key.
7. General
7.1. This agreement is governed by the laws of New Zealand. Any litigation commenced by You shall be brought in a New Zealand Court. Any litigation commenced by the Licensor or Sub-Licensor may be brought in a New Zealand Court or any other Court of competent jurisdiction at the election of the Licensor or Sub-Licensor.
7.2. This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
7.3. This agreement contains the entire agreement between You and the Licensor and Sub-Licensor and supersedes all prior agreements or understandings in any other communication between us relating to the Software.
7.4. Failure or delay by the Licensor or Sub-Licensor in enforcing any right or provision of this agreement is not to be deemed a waiver of such provision or right with respect to any breach.
7.5. If any provision of this agreement is deemed to be illegal then that provision will be deemed to be deleted and the remaining provisions of this agreement will remain in full force and effect.
7.6. You may not assign, transfer, sub-license or otherwise dispose of Your interest in this agreement without the Licensor and Sub-Licensor's prior written consent.
7.7. You authorise the Licensor Sub-Licensor and Supplier to use and disclose to any third party any information supplied by You to either the Licensor Sub-Licensor or Supplier.
8. Updates/Revisions/Marketing Information
8.1. Unless requested otherwise by You, the Licensor Sub-Licensor and Supplier shall have the right to provide You with updates and revisions to the Software from time to time and information on products related to the Software.
9. Language
9.1. This agreement and all documents relating to this agreement shall either be in English, or shall be accompanied by a certified translation into English by a translator acceptable to the Licensor and Sub-Licensor. If there is a conflict between the English and other language versions of this agreement or any such document, the English version shall govern.
10. Further Contact
10.1 For information about SMS Connector for WinGate or this license agreement please refer to http://www.wingate.com