IMPORTANT-READ CAREFULLY: Please read this End User License Agreement ("EULA") carefully and be sure that you understand it. This EULA is a legal agreement between you (either an individual or a single entity) and Kapanga.net. ("Kapanga"). You must review and either accept or reject the terms of this EULA before installing or using the Software (as that term is defined below). CLICKING THE "I ACCEPT" BUTTON BELOW IS JUST LIKE SIGNING A CONTRACT WRITTEN ON PAPER. BY CLICKING THE "I ACCEPT" BUTTON OR INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS EULA, UNDERSTAND THEM AND AGREE TO BE LEGALLY BOUND BY THEM.
1. OWNERSHIP. The Software is licensed, not sold. You acknowledge that the Software (including any changes you may request or suggest) is the property of Kapanga and/or its licensors. Title to each copy of the Software and all related intellectual property rights embodied in or represented by the Software will remain with Kapanga.net and/or its licensors at all times, as will all other rights not explicitly granted to you under this EULA.
2. BETA SOFTWARE. (a) Use. Notwithstanding anything to the contrary in this EULA, if Software is designated as pre-release or beta software, then you may use the Software (and any Services Kapanga chooses to provide you in connection with it) in a manner consistent with the terms of this EULA solely for evaluation purposes until the earlier of (i) the date of the commercial release of the non-beta version of the Software, or (ii) 10 days after the date on which you or we send written notice to the other terminating this EULA, which either of us may do at any time. (b) Acknowledgement and Additional Liability Limitation and Warranty Disclaimer. You acknowledge that all Software designated as pre-release or beta Software may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems. In light of the fact that pre-release or beta Software is provided to you free of charge, neither Kapanga nor any Released Party will be liable for direct damages related to pre-release or beta Software, as explained more fully in Section 6(a). (c) Feedback. You agree to promptly report to Kapanga any bugs, usability or performance problems you experience using the pre-release or beta Software, and you grant Kapanga an unrestricted, royalty-free right to use all such feedback for purposes of correcting and/or enhancing the Software and Services and developing other products and services. (d) Confidentiality. You agree not to disclose pre-release or beta Software, or any information regarding it that Kapanga designates as "confidential" or "proprietary" (or some similar designation) at the time of disclosure or in a letter or other writing sent to you within 30 days after its initial disclosure. These restrictions will not apply to any information that (a) is publicly known at the time of its disclosure; (b) is lawfully received from a third party not obligated to maintain it in confidence; (c) is published or otherwise made known to the public by Kapanga; (d) you generated independently before you received it, as evidenced by your records; or (e) is required to be disclosed under any law, governmental rule or regulation or a valid court order.
3. RESTRICTIONS AND LIMITATIONS. You agree to comply with the following restrictions and limitations, and you agree not to permit others to violate them: (a) Copying, Distribution and Use. You may not copy the Software, except in connection with installation of the Software as provided above in Section 3(a) and to make one copy of the Software solely for backup or archival purposes. You may not sell, rent, lease, sublicense or redistribute Software or its activation key(s), or use or permit others to install or directly or indirectly access or use the Software, its functionality or its activation key(s), except as provided in this EULA. (b) Proprietary Notices. You may not alter or remove any copyright, trademark, patent, or other protective notices contained in or on the Software. (c) Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile or disassemble the Software or otherwise attempt to derive its source code, except and only to the extent that any of these activities is permitted by applicable law despite this restriction. (d) Modifications and Derivative Works. You may not modify or create derivative works of the Software. (e) Interference with Certain Features. You may not modify, disable, circumvent, avoid, bypass, remove, deactivate, impair or otherwise interfere with features of the Software that enforce license restrictions or limits, or report technical or statistical information regarding the Software. (f) Use of Prior Versions. The Software may automatically update and upgrade itself when it is launched, if an Upgrade or Update of the Software is available. You may not continue to use prior versions of the Software after the Software is updated or upgraded. (g) Acceptable Use. You may not use the Software for a purpose or in a manner not permitted by the terms of Kapanga Acceptable Use Policy (as it may be amended from time to time), including, without limitation, infringement of intellectual property rights, applicable copyright or pornographic laws. (h) No Emergency Services. You expressly agree and understand that the Kapanga Software is not intended to support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency service. Kapanga, its Affiliates or Kapanga Staff are in no way liable for such emergency calls. (i) Lawful purposes. You acknowledge and agree to use the Kapanga Software solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You, (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Kapanga Software or the communication, or (c) send any unsolicited commercial communication not permitted by applicable law. (j)Jurisdiction's Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the Kapanga Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, You may not enter into this Agreement and You may not download, install or use the Kapanga Software. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the Kapanga Software is allowed. (k) Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect. (l) Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE KAPANGA SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH KAPANGA SOFTWARE.
4. CONSENT TO ESTABLISHMENT OF PERSON-TO-PERSON COMMUNICATIONS. The Software is designed to enable "person-to-person" communications among users with computers and other devices for purposes of direct communication, with minimum involvement of central computer servers. The Software makes certain information about your account known to other users and computers with which you interact or associated Instant Messaging Networks in which you participate. You acknowledge and consent to the fact that the Software enables such communications, and you agree that Kapanga is not responsible for the conduct of any party (or their computers) who interacts with you or your Computer as a result of your installation or use of the Software or the Services.
5. WARRANTY DISCLAIMER. KAPANGA AND ITS LICENSORS AND LICENSORS' DISTRIBUTORS DISCLAIM ALL WARRANTIES WITH RESPECT TO ALL SOFTWARE AND SERVICES AND ALL THIRD PARTY PRODUCTS OR SERVICES YOU OR END USERS MAY UTILIZE IN CONNECTION WITH THE SOFTWARE OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. IN PARTICULAR, KAPANGA DOES NOT REPRESENT THAT THE SOFTWARE OR THE SERVICES ARE ERROR FREE, WILL OPERATE IN AN UNINTERRUPTED MANNER, ARE COMPLETELY SECURE, OR WILL INTEROPERATE WITH THIRD PARTY SOFTWARE OR SERVICES. KAPANGA ASSUMES NO RESPONSIBILITY FOR THE SECURITY, PROPRIETY OR COPYIGHT COMPLIANCE OF ANY CONTENT EXCHANGED USING THE SOFTWARE OR THE SERVICES. THE SOFTWARE AND THE SERVICES ARE NOT DESIGNED OR MANUFACTURED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT SYSTEMS, OR WEAPON OR COMBAT SYSTEMS, IN WHICH THEIR FAILURE COULD LEAD DIRECTLY TO PERSONAL INJURY, DEATH, OR PROPERTY OR ENVIRONMENTAL DAMAGE. KAPANGA DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
6. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY. (a) TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ANY APPLICABLE CONSUMER PROTECTION LAWS OF A FOREIGN JURISDICTION), NEITHER KAPANGA NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLED OR CONTROLLING ENTITIES, LICENSORS OR LICENSORS' DISTRIBUTORS (EACH, A "RELEASED PARTY"), WILL HAVE ANY LIABILITY TO YOU OR ANY END USERS FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST PROFITS, BUSINESS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR LOSS OF PRIVACY) ARISING OUT OF OR RELATED TO THIS EULA, THE SOFTWARE OR THE SERVICES, EVEN IF KAPANGA OR A RELEASED PARTY HAS BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES. (b) NOTWITHSTANDING PARAGRAPH 6(a) ABOVE OR ANYTHING ELSE TO THE CONTRARY SET FORTH IN THIS EULA, IF YOUR CLAIMED DAMAGES ARISE FROM OR RELATE TO SOFTWARE OR SERVICES COVERED BY SECTION 4 OR 5 OF THIS EULA, THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ANY APPLICABLE CONSUMER PROTECTION LAWS OF A FOREIGN JURISDICTION), NEITHER KAPANGA NOR ANY RELEASED PARTY WILL HAVE ANY LIABILITY TO YOU OR TO ANY END USERS FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS EULA, THE SOFTWARE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO DIRECT DAMAGES, EVEN IF KAPANGA OR A RELEASED PARTY HAS BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES. (c) WITHOUT LIMITING THE SCOPE OR EFFECT OF SECTIONS 6(a) OR (b) ABOVE, IN NO EVENT WILL KAPANGA'S AND THE RELEASED PARTIES' TOTAL LIABILITY WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATED TO THIS EULA, THE SOFTWARE OR THE SERVICES (INCLUDING CLAIMS OF NEGLIGENCE AND STRICT LIABILITY) EXCEED THE LOWER OF (i) THE AGGREGATE DIRECT DAMAGES ACTUALLY INCURRED BY YOU AND YOUR END USERS, OR (ii) US $10. (d) SOME JURISDICTIONS LIMIT THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS EULA IS UNENFORCEABLE UNDER APPLICABLE LAW, KAPANGA'S AND THE RELEASED PARTIES' AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
7. TERM AND TERMINATION. The term of this EULA will commence upon installation or use of the Software and continue indefinitely, unless you and Kapanga enter into a new agreement that entirely replaces this EULA, or unless Kapanga terminates this EULA as provided herein. Without prejudice to any other rights, Kapanga may terminate this EULA if you fail to comply with its terms and conditions. If Kapanga terminates this EULA, (i) you must immediately stop using the Software and destroy all copies of the Software and all of its component parts, and (ii) Kapanga will have no further obligation to provide any Services to you or any End Users as of the termination date. The parties' respective rights and obligations under Sections 3 (Restrictions and Limitations), 5 (Warranty Disclaimer), 6 (Exclusion of Damages and Limitation of Liability), and Section 8 (General Provisions) will survive the termination of this EULA.
8. GENERAL PROVISIONS. (a) Export Restrictions. You agree to comply with all applicable laws and regulations of governmental bodies and agencies related to use of the Software and Services and your performance under this EULA. The Software also may be subject to the export, import or other laws of other countries. You represent that you are eligible to receive favorable treatment under current US export control laws and regulations, and that you will not use or transfer the Software in violation of any U.S. or foreign laws or regulations, or permit others to do so. You may not install Kapanga software if you are located in Cuba , Iran , Iraq , Libya , North Korea , Syria , or the Sudan . U.S. export control law forbids the export or re-export of this software to any destination in any of theses countries or to any person on the U.S. Department of Commerce's list of denied persons or entities or the U.S. Treasury Department's master list of Specially Designated Nationals and Blocked Persons. By installing this software, you agree that you will not transfer it to any destination in (or to a national of) any of the countries listed above or to any person or entity on a U.S. denial list, and that you will comply with all import regulations imposed by jurisdictions other than the United States. (b) Waiver. No delay or omission by either party to exercise any right or power arising upon the other party's nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach. (c) Severability. If any provision of this EULA is declared to be unenforceable for any reason, the remainder of this EULA will continue in full force and effect, and the unenforceable provision will be deemed modified to the extent necessary to comply with the applicable requirements of law, while retaining to the maximum extent permitted by law its intended effect, scope and economic effect. (d) Governing Law. The interpretation and performance of this EULA will be governed in all respects by the laws of the state of Maryland , USA . Each of the parties irrevocably consents to the exclusive personal jurisdiction of the courts located in Maryland , for any matter arising out of or relating to this agreement. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA. (e) Dispute Resolution. Any litigation arising under or related to this EULA will be brought only in the state of Maryland , USA and in the county in which Kapanga's or its successor's or assign's principal office in Maryland is then located. You hereby submit to the personal jurisdiction of these courts and waive all objections to placing venue exclusively before them. The prevailing party in any litigation arising under or related to this EULA, in addition to any other relief granted to it, will be entitled to recover from the losing party its reasonable attorneys' fees and costs incurred in connection with the litigation. (f) Entire Agreement. This EULA set forth the entire agreement between you and Kapanga with respect to the subject matter, and it supersedes all prior communications, understandings and agreements, as well as the terms and conditions set forth in or on any purchase order, acknowledgement form, check, or any other document or instrument you may issue to Kapanga or transmit in connection with any payment for Software or Services.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE KAPANGA SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONSITIONS AND GRANT TO KAPANGA THE RIGHTS SET FORTH HEREIN.
Copyright © 2005-2006 Ecotronics Ventures LLC/Kapanga Softphone. All other company and/or product names are trademarks and/or registered trademarks of their respective owners.