These Terms apply to any of
the software developed by AkuShaper.
BY DOWNLOADING AND/OR USING SOFTWARE FROM OUR WEB SITE, THE INDIVIDUAL OR
ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS
BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE
TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT INSTALL OR USE ANY OF THE
SOFTWARE.
1. LICENSE AGREEMENT. In this Agreement "Licensor" shall mean Iwabird LLC
except under the following circumstances:
(i) if Licensee acquired the Product as a bundled component of a third party
product or service, then such third party shall be Licensor; and
(ii) if any third party software is included as part of the default
installation and no License is presented for acceptance the first time that
third party software is invoked, then the use of that third party software
shall be governed by this Agreement, but the term "Licensor," with respect
to such third party software, shall mean the manufacturer of that software
and not Iwabird, LLC. With the exception of the situation described in (ii)
above, the use of any included third party software product shall be governed
by the third party's License agreement and not by this Agreement, whether
that License agreement is presented for acceptance the first time that the
third party software is invoked, is included in a file in electronic form, or
is included in the package in printed form. If more than one License
agreement was provided for the Product, and the terms vary, the order of
precedence of those License agreements is as follows: a signed agreement, a
License agreement available for review on the AkuShaper website, a printed
or electronic agreement that states clearly that it supersedes other
agreements, a printed agreement provided with the Product, an electronic
agreement provided with the Product.
2. LICENSE GRANT. Licensor grants Licensee a non-exclusive and non-
transferable License to reproduce and use for personal or internal business
purposes the executable (object file), provided any copy must contain all of
the original proprietary notices. This License does not entitle Licensee to
receive from Iwabird, LLC hard-copy documentation, technical support,
telephone assistance, or enhancements or updates to the Product unless a
specific Product has been purchased by the Licensee that clearly states
otherwise. Licensor warrants that it has the right to grant the foregoing
license free and clear of third party intellectual property claims, and
should any third party intellectual property claims arise Licensor will
defend and hold Licensee harmless from such claims.
3. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement,
or in another Licensor agreement to which Licensee is a party such as a
distribution agreement, Licensee may not:
(i) decompile, disassemble, reverse engineer, or otherwise attempt to derive
the source code for the Product;
(ii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise
transfer rights to the Product;
(iii) remove or alter any trademark, logo, copyright or other proprietary
notices, legends, symbols or labels in the Product; or
(iv) publish any results of benchmark tests run on the Product to a third
party without Licensor's prior written consent.
4. FEES. The License fee is as pertains to the respective plan chosen by the
Licensee. Licensees that have a paid copy of the software may install the
software on up to 3 of they own computers. Licensee may not install their
Licensed software on another person's computer, Licensee or not.
5. TERMINATION. Without prejudice to any other rights, Licensor may terminate
this Agreement if Licensee breaches any of its terms and conditions. Upon
termination, Licensee shall destroy all copies of the Product.
6. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property
rights in the Product shall remain in Iwabird LLC and/or its suppliers.
Licensee acknowledges such ownership and intellectual property rights and
will not take any action to jeopardize, limit or interfere in any manner with
Iwabird LLC or its suppliers' ownership of or rights with respect to the
Product. The Product is protected by copyright and other intellectual
property laws and by international treaties. Title and related rights in the
content accessed through the Product is the property of the applicable
content owner and is protected by applicable law. The License granted under
this Agreement gives Licensee no rights to such content.
7. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED EITHER FREE OF CHARGE OR AS
A PAID LICENSE. IT IS ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND,
INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS,
MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD
THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS
SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN
ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT
LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS
ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF
THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER
THIS DISCLAIMER.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE
OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY
AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY
THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR
OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE
LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE
AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES
FOR SUPPORT OF THE PRODUCT RECEIVED BY IWABIRD LLC UNDER A SEPARATE SUPPORT
AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY
THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE
LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. IWABIRD LLC IS NOT
RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A
THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED
THROUGH SUCH CONTENT.
9. HIGH RISK ACTIVITIES. The Product is not designed, manufactured or
intended for use in hazardous and unsafe environments, in which the failure
of the Product could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). Accordingly,
Licensor and its suppliers specifically disclaim any express or implied
warranty of fitness for High Risk Activities. Licensee agrees that Licensor
and its suppliers will not be liable for any claims or damages arising from
the use of the Product in such applications.
10. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof.
(b) This Agreement may be amended only by a writing signed by both parties.
(f) If any provision in this Agreement should be held illegal or
unenforceable by a court having jurisdiction, such provision shall be
modified to the extent necessary to render it enforceable without losing its
intent, or severed from this Agreement if no such modification is possible,
and other provisions of this Agreement shall remain in full force and effect.
(g) The controlling language of this Agreement is English. If Licensee has
received a translation into another language, it has been provided for
Licensee's convenience only.
(h) A waiver by either party of any term or condition of this Agreement or
any breach thereof, in any one instance, shall not waive such term or
condition or any subsequent breach thereof.
(i) The provisions of this Agreement which require or contemplate performance
after the expiration or termination of this Agreement shall be enforceable
notwithstanding said expiration or termination.
(j) Licensee may not assign or otherwise transfer by operation of law or
otherwise this Agreement or any rights or obligations herein except in the
case of a merger or the sale of all or substantially all of Licensee's assets
to another entity.
(k) This Agreement shall be binding upon and shall inure to the benefit of
the parties, their successors and permitted assigns.
(l) Neither party shall be in default or be liable for any delay, failure in
performance (excepting the obligation to pay) or interruption of service
resulting directly or indirectly from any cause beyond its reasonable
control.
(m) The relationship between Licensor and Licensee is that of independent
contractors and neither Licensee nor its agents shall have any authority to
bind Licensor in any way.
(n) If any Iwabird LLC professional services are being provided, then such
professional services are provided pursuant to the terms of a separate
Professional Services Agreement between Iwabird LLC and Licensee. The
parties acknowledge that such services are acquired independently of the
Product licensed hereunder, and that provision of such services is not
essential to the functionality of such Product.
(o) The headings to the sections of this Agreement are used for convenience
only and shall have no substantive meaning.
(p) Licensor may use Licensee's name in any customer reference list or in any
press release issued by Licensor regarding the licensing of the Product
and/or provide Licensee's name and the names of the Product licensed by
Licensee to third parties.
11. The AkuShaper Software is owned by Iwabird LLC.
