IMPORTANT - PLEASE READ CAREFULLY
THIS END USER LICENSE AGREEMENT, AND ANY NEW VERSIONS THEREOF ("TERMS") BETWEEN ABUKAI, INC. ("ABUKAI") AND YOU, COVERS ALL YOUR USE OF ABUKAI SOFTWARE ("SOFTWARE") FROM ANY DEVICE WHERE SUCH SOFTWARE HAS BEEN INSTALLED, BY YOU OR BY THIRD PARTIES. YOU CAN ACCEPT THIS AGREEMENT BY CLICKING ON THE ACCEPT BUTTON OR SIMILAR BUTTONS OR LINKS AS MAY BE DESIGNATED BY ABUKAI OR BY USING THE SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS AND/OR USING THE SOFTWARE YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT WITH ABUKAI.
1. License: Subject to these Terms, Abukai hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Software on Your computer, phone or PDA for the sole purpose of personally using the services provided by Abukai and any other applications that may be explicitly provided by Abukai ("Abukai Services"). You acknowledge and agree that that use of the Abukai Services via the Software is not free of charge.
2. Restrictions: You will only use the Software in connection with the use of the Abukai Services. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Software or any part thereof. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or any part thereof except to the extent permitted by law. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the intellectual property rights and/or Abukai's rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
3. Ownership: Any and all intellectual property rights in the Software and the Abukai Services are and shall remain the exclusive property of Abukai and/or its licensors. Nothing in these Terms intends to transfer any such intellectual property rights to, or to vest any such rights in, You. You are only entitled to the limited use of the rights granted to You in these Terms. Any unauthorized use of Abukai's intellectual property rights is a violation of these Terms as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
4. Changes to the Software: Abukai, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Software. Abukai has no obligation to make available to You any subsequent versions of the Software. You may have to enter into a renewed version of these Terms, in the event you want to download, install or use a new version of the Software.
5. Internet Access: The Software and Abukai Services are delivered via or in connection with the Internet, and You acknowledge and agree that You are solely responsible for obtaining and maintaining access to the Internet and all related hardware and software necessary to connect to the Internet and use the Software and Abukai Services.
6. Suspension: Abukai may, in its sole discretion and to the maximum extent permitted within Your jurisdiction, modify or discontinue or suspend Your ability to use any version of the Software, and/or disable any Software You may already have accessed or installed without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason.
7. Representations: You represent and warrant that You are authorized to enter into and comply with the Terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations under the Terms, as well as any and all laws, regulations and policies that may apply to the use of the Software and the Abukai Services.
8. Indemnification: YOU AGREE TO INDEMNIFY, DEFEND AND HOLD ABUKAI HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES INCURRED IN CONNECTION WITH OR ARISING OUT OF YOUR (A) VIOLATION OR BREACH OF ANY OF THESE TERMS OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN OR (B) USE OR MISUSE OF THE SOFTWARE.
9. Export Restrictions: The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments. Abukai is making this software available to You for download only on the condition that You certify that You are not such a person or entity and that the download is not otherwise in violation of US export control and sanctions regulations.
10. Government Users: The Software and related documentation are "commercial computer software" and "commercial computer software documentation,"respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software or related documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in these Terms.
11. Term and Termination: These Terms will be effective as of the date that You accept the Terms or the date that You install the Software, whichever comes first, and will remain effective until terminated by either Abukai or You as set out below. You may terminate the Terms with immediate effect at any time. Without limiting other remedies, Abukai may limit, suspend, or terminate this license and Your use of Software and/or prohibit access to the Abukai Services with immediate effect, automatically and without recourse to the courts, if Abukai thinks that You are in breach of the Terms, creating problems, legal liabilities (actual or potential), infringing someone else's intellectual property rights, engaging in illegal activities, or for other similar reasons. Abukai shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to Your account. Abukai reserves the right to cancel accounts that have been inactive for more than one (1) year.
12. Consequences of Termination: Upon termination of these Terms: (a) all licenses and rights to use the Software shall immediately terminate; (b) You will immediately cease any and all use of the Software; and (c) You will immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in Your possession or under Your control.
13. New Versions of the Terms: Abukai reserves the right to change these Terms at any time by publishing the revised Terms on the Abukai website located at http://abukai.com/eula. The revised Terms shall become effective within thirty (30) days of such publication, unless You expressly accept the revised Terms earlier by clicking on the accept button. Your express acceptance or Your continued use of the Software after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the revised Terms. You can find the latest version of these Terms at http://abukai.com/eula.
14. Disclaimer of Warranties: THE SOFTWARE IS PROVIDED "AS IS"WITH NO WARRANTIES WHATSOEVER; ABUKAI DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. ABUKAI FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE AND COMPLETE OR WILL OPERATE WITHOUT ERROR, NOR DOES ABUKAI WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
15. No Liability: The Software is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT ABUKAI AND ITS AFFILIATES AND LICENSORS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SOFTWARE, AS SET FORTH BELOW. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO IMMEDIATELY DEINSTALL AND CEASE USE OF SUCH SOFTWARE.
16. Limitation of Liability: IN NO EVENT SHALL ABUKAI OR ITS AFFILIATES OR LICENSORS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR: (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE; (ii) ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE; AND (iii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING THE SOFTWARE, (b) THE SUSPENSION OR TERMINATION OF THESE TERMS BY YOU OR BY ABUKAI FOR ANY REASON; AND (c) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE SOFTWARE TO YOU. THE LIMITATIONS ON ABUKAI'S LIABILITY TO YOU IN THIS SECTION SHALL APPLY WHETHER OR NOT ABUKAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited to the maximum extent possible within the applicable legislation.
17.1 Entire Agreement: These Terms constitute the entire agreement between You and Abukai with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. Nothing in this clause shall exclude or restrict the liability of either You or Abukai arising out of fraud or fraudulent misrepresentation.
17.2 Severability; Waiver: Should any these Terms be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
17.3 Assignment: You are not allowed to assign the Terms or any rights hereunder. Abukai is allowed at its sole discretion to assign the Terms or any rights hereunder to any third party, without prior notice.
17.4 Relationship of the Parties: Neither these Terms nor the performance of its provisions shall be construed to constitute either of the parties hereto an agent, employee, partner, joint venturer, or legal representative of the other.
17.5 Applicable Law and Competent Court: These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding rules governing conflict of law and choice of law. The federal and state courts within San Francisco County, California, shall have exclusive jurisdiction to adjudicate any dispute arising out of these Terms. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts.
17.6. Language: The original English version of the Terms may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail.
17.7 Survival: The terms and conditions of Sections 2, 3, 7, 8, 12, 14, 15, 16 and 17 of these Terms shall survive termination of the Terms.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO ABUKAI THE RIGHTS SET FORTH HEREIN.