PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE” AS DEFINED BELOW) CAREFULLY BEFORE USING THE KWIK SOFTWARE (DEFINED BELOW). BY USING THE KWIK SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE.
IMPORTANT NOTE: This software may be used to reproduce, modify, publish and distribute materials. It is licensed to You only for reproduction, modification, publication and distribution of non-copyrighted materials, materials in which You own the copyright, or materials You are authorized or legally permitted to reproduce, modify, publish and distribute. If You are uncertain about Your right to copy, modify, publish and distribute any material You should contact Your legal advisor.
A. Scope of License
The Kwik Software (defined below) is licensed, not sold, to You by KWIKSHER LLP. (“KWIKSHER”) and/or KWIKSHER’s licensors. The rights granted herein are limited to KWIKSHER’s and/or KWIKSHER’s licensors’ respective intellectual property rights in the Kwik Software and do not include any other patents or intellectual property rights.
You own the media on which the Kwik Software is recorded but KWIKSHER and/or KWIKSHER’s licensor(s) retain ownership of their respective portions of the Kwik Software itself. The terms of this License will govern any software upgrades provided by KWIKSHER that replace and/or supplement the original Kwik Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO KWIKSHER.
B. Consent to Collection and Use of Non-Personal Data
You agree that KWIKSHER may collect and use technical data and related information, including but not limited to technical and/or statistical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Kwik Software, and to verify compliance with the terms of this Agreement. KWIKSHER may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
In order to use the Kwik Software, You must first agree to this License. If You do not or cannot agree to this License, You are not permitted to use the Kwik Software. Do not download or use the Kwik Software in that case. You accept and agree to the terms of this License on Your own behalf and/or on behalf of Your company, organization or educational institution as its authorized legal representative, by doing either of the following:
(a) clicking an “Agree” or similar button, where this option is provided by KWIKSHER; or
(b) downloading Kwik Software from KWIKSHER servers.
“Kwik Software” means the documentation, software (source code and object code), sample or example code, plugin components, tools, utilities, libraries, APIs, data, files, and other materials provided or made available by KWIKSHER for use by You in connection with Your software development whether on disk, on print or electronic documentation, in read only memory, on any other media, or made available on a server.
“Authorized Developers” means Your employees and contractors, members of Your organization or, if You are an educational institution, Your faculty and staff who are defined below
- (a) each have a license to use the Kwik Software
- (b) each have an active and valid account with KWIKSHER]
- (c) have a demonstrable need to know or use the Kwik Software in order to develop and test software
- (d) to the extent such individuals will have access to KWIKSHER Confidential Information, each have written and binding agreements with You to protect the unauthorized use and disclosure of such KWIKSHER and third party confidential information.
“Documentation” means any technical or other specifications or documentation that KWIKSHER may make available or provide to You relating to or for use in connection with the Kwik Software.
“License”, “License Agreement”, and “Agreement” means and refers to this Software License Agreement.
“Authorized Computer” means a computer which has been authorized by KWIKSHER servers to run the Kwik Software.
“Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the Kwik Software, or to any part of the Kwik Software.
“You”, “Your” and “Licensee” means and refers to the person(s) or legal entity using the Kwik Software or otherwise exercising rights under this Agreement. If You are entering into this Agreement on behalf of Your company, organization or educational institution, “You” or “Your” refers to Your company, organization or educational institution as well.
2. Permitted License Uses and Restrictions.
A. Kwik Software.
(a) The Kwik Software is licensed on a per subscription basis. While your version is active, You may install the Kwik Software on Authorized Computer for use by You.
(b) Subject to the terms below, KWIKSHER grants You a non-exclusive, non-transferable license (without the right to sublicense)
- (i) to use the Kwik Software solely for the purpose of developing software for mobile phones and computers;
- (ii) to copy Kwik Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies;
- (iii) to market and distribute, directly or indirectly through distributors, software created with the Kwik Software, provided that, any software created with the Kwik Software is distributed to end users under an enforceable end-user license agreement containing at least the following minimum terms:
- Provision indicating ownership of software by You and Your suppliers.
- Disclaimer of all applicable statutory warranties, to the full extent allowed by law.
- Limitation of liability not to exceed price of Your Product, and provision that sole remedy shall be a right of return and refund, if any, from You.
- Disclaimer of indirect, special, incidental, punitive, and consequential damages.
- Making KWIKSHER a third-party beneficiary for purposes of enforcing its intellectual property rights or any disclaimers or limitations.
B. Open-Sourced Software.
The terms and conditions of this License shall not apply to any Open Source Software accompanying the Kwik Software.
Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Kwik Software.
C. Sample Code.
Certain portions of the Kwik Software consist of sample or example code provided by KWIKSHER (“Sample Code”). You may use, reproduce, modify and redistribute such Sample Code in accordance with the licensing terms accompanying such Sample Code or related project(s).
D. No Support Services.
KWIKSHER is under no obligation to support the Kwik Software in any way or to provide any upgrades to You.
You shall not copy or use the Kwik Software except as expressly permitted in this License. You will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Kwik Software.
F. No Other Permitted Uses.
Except as otherwise set forth in this Agreement, You agree not to rent, lease, lend, upload to or host on any website or server, sell, redistribute, or sublicense the Kwik Software, in whole or in part, or to enable others to do so.
You may not use the Kwik Software for any purpose not expressly permitted by this Agreement. You agree not to install, use or run the Kwik Software with operating systems other than KWIKSHER-supported operating systems, or to enable others to do so.
You may not and You agree not to, or to enable others to, copy (except as expressly permitted under this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of the Kwik Software or any services provided by the Kwik Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may bepermitted by licensing terms governing use of Open Sourced Components or Sample Code included with the Kwik Software).
You agree not to exploit any services provided by the Kwik Software in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
Any attempt to do so is a violation of the rights of KWIKSHER and its licensors of the Kwik Software or services provided by the Kwik Software. If You breach any of the foregoing restrictions, You may be subject to prosecution and damages.
All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by KWIKSHER, by implication, estoppel, or otherwise. This Agreement does not grant You any rights to use any trademarks, logos or service marks belonging to KWIKSHER.
G. Other Restrictions.
Except as and only to the extent expressly permitted by this License, by applicable licensing terms governing use of the Open Sourced Components or Sample Code, or to the extent that the following restrictions are prohibited by applicable law, You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of the Kwik Software, modify, decrypt, create derivative works of, incorporate into or compile in combination with Your own programs, sublicense or otherwise redistribute the Kwik Software.
3. Your Obligations
A. General. You certify to KWIKSHER and agree that:
(a) You are of the legal age of majority in the jurisdiction in which You reside (at least 18 years of age in many countries) and have the right and authority to enter into this Agreement on Your own behalf, or if You are entering into this Agreement on behalf of Your company, organization or educational institution, that You have the right and authority to legally bind Your company, organization or educational institution to the terms and obligations of this Agreement;
(b) All information provided by You to KWIKSHER or Your end users in connection with this Agreement or Your software, including without limitation Licensed software Information, will be current, true, accurate and complete and, with regard to information You provide to KWIKSHER, You will promptly notify KWIKSHER of any changes to such information;
(c) You will comply with the terms of and fulfill Your obligations under this Agreement and You agree to monitor and be responsible for Your Authorized Developers’ use of the Kwik Software and their compliance with the terms of this Agreement;
(d) You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by You and Authorized Developers in connection with the Kwik Software;
(e) You will not act in any manner which conﬂicts or interferes with any existing commitment or obligation. You may have and no agreement previously entered into by You will interfere with Your performance of Your obligations under this Agreement.
Except as otherwise set forth in this Agreement, You may not rent, lease, lend, redistribute or sublicense the Kwik Software. You may, however, make a one-time permanent transfer of all of Your license rights to the Kwik Software (in its original form as provided by KWIKSHER) to another party, provided that:
- (a) the transfer must include all of the Kwik Software, including all its component parts, original media, printed materials and this License;
- (b) You do not retain any copies of the Kwik Software, full or partial, including copies stored on a computer or other storage device;
- (c) the party receiving the Kwik Software reads and agrees to accept the terms and conditions of this License.
You may not rent, lease, lend, redistribute, sublicense or transfer any Kwik Software that has been modified or replaced under Section 2B above.
All components of the Kwik Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications.
NFR (Not for Resale) and Evaluation Copies: Notwithstanding other sections of this License, Kwik Software labeled or otherwise provided to You on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
5. Term and Termination.
Your rights with respect to the Kwik Software do not extend to online services provided by KWIKSHER. Either party may terminate this License at any time for any reason or no reason by providing the other party advance written notice thereof.
Upon any expiration or termination of this License, the rights and licenses granted to You under this License shall immediately terminate, and You shall immediately cease using, and will return to KWIKSHER (or, at KWIKSHER’s request, destroy), the Kwik Software that are proprietary to or contain Confidential Information.
The rights and obligations of the parties set forth in Sections 2A(iii), 2C, 2D, 2E, 2F, 3, 4, 5, 6, 7, 8 and 9 shall survive termination or expiration of this License for any reason.
This License is effective until terminated. Your rights under this License will terminate automatically without notice from KWIKSHER if You fail to comply with any term(s) of this License.
In addition, KWIKSHER reserves the right to terminate this License if a new version of the Kwik Software is released which is incompatible with this version of the Kwik Software.
Upon the termination of this License, You shall cease all use of the Kwik Software and destroy all copies, full or partial, of the Kwik Software.
This Agreement and all rights and licenses granted by KWIKSHER hereunder and any services provided hereunder will terminate, effective immediately upon notice from KWIKSHER:
(a) if You or any of Your Authorized Developers fail to comply with any term of this Agreement other than those contained in Section 5 (Confidentiality) and fail to cure such breach within 30 days after becoming aware of or receiving notice of such breach;
(b) if You or any of Your Authorized Developers fail to comply with the terms of Section 5;
(c) in the event of the circumstances described in the subsection entitled “Severability” below;
(d) if You, at any time during the Term, commence an action for patent infringement against KWIKSHER;
(e) if You become insolvent, fail to pay Your debts when due, dissolve or cease to do business, file for bankruptcy, or have filed against You a petition in bankruptcy; or
(f) if You engage, or encourage others to engage, in any fraudulent, improper, unlawful or dishonest act relating to this Agreement, including, but not limited to, embezzlement, alteration or falsification of documents, theft, inappropriate use of computer systems, bribery, or other misrepresentation of facts.
KWIKSHER may also terminate this Agreement, or suspend Your rights to use the KWIKSHER Kwik Software or services, if You fail to accept any new Requirements or Agreement terms as described in Section 5C.
Either party may terminate this Agreement for its convenience, for any reason or no reason, effective 30 days after providing the other party with written notice of its intent to terminate.
C. Changes to Terms.
KWIKSHER may change the terms and conditions of this License at any time. New or modified terms and conditions will not retroactively apply to software created with the Kwik Software already in distribution. In order to continue using the Kwik Software, You must accept and agree to the new terms and conditions of this License.
If You do not agree to the new terms and conditions, Your use of the Kwik Software will be suspended or terminated by KWIKSHER. You agree that Your acceptance of such new License terms and conditions may be signified electronically, including without limitation, by Your checking a box or clicking on an “agree” or similar button.
Nothing in this Section shall affect KWIKSHER’s rights under Section 5D below.
You understand and agree that KWIKSHER may cease Your ability to create software using the Kwik Software at any time. By way of example only, KWIKSHER might choose to do this if at any time:
(a) KWIKSHER has been notified or otherwise has reason to believe that Your software violates, misappropriates, or infringes the rights of a third party or of KWIKSHER;
(b) KWIKSHER has reason to believe that You have or will create software using the Kwik Software that contain malicious or harmful code, malware, programs or other internal components (e.g. software virus);
(c) KWIKSHER has reason to believe that Your software damages, corrupts, degrades, destroys or otherwise adversely affects the devices it operates on, or any
other software, firmware, hardware, data, systems, or networks accessed or used by the software;
(d) You breach any term or condition of this License;
(e) Any information or documents provided by You to KWIKSHER for the purpose of verifying Your identity or obtaining KWIKSHER-issued digital certificates is false or inaccurate;
(f) Any representation, warranty or certification provided by You to KWIKSHER in this License is untrue or inaccurate;
(g) KWIKSHER is required by law, regulation or other governmental or court order to take such action;
(h) KWIKSHER has reason to believe that such action is prudent or necessary.
“Confidential Information” shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Kwik Software, and other information provided by KWIKSHER, whether disclosed orally, in writing, or by examination or inspection, other than information which You can demonstrate
- (i) was already known to You, other than under an obligation of confidentiality, at the time of disclosure;
- (ii) was generally available in the public domain at the time of disclosure to You;
- (iii) became generally available in the public domain after disclosure other than through any act or omission of You;
- (iv) was subsequently lawfully disclosed to You by a third party without any obligation of confidentiality; or
- (v) was independently developed by You without use of or reference to any information or materials disclosed by KWIKSHER or its suppliers.
Confidential Information shall include without limitation the Kwik Software, Performance Data, and any updates. You shall not use any Confidential Information for any purpose other than as expressly authorized under this License.
In no event shall You use the Kwik Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service.
You shall limit dissemination of Confidential Information to its employees who have a need to know such Confidential Information for purposes expressly authorized under this License.
In no event shall You disclose any Confidential Information to any third party. Without limiting the foregoing, You shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information.
A. Obligations Regarding KWIKSHER Confidential Information.
You agree to protect KWIKSHER Confidential Information using at least the same degree of care that You use to protect Your own confidential information of similar importance, but no less than a reasonable degree of care.
You agree to use KWIKSHER Confidential Information solely for the purpose of exercising Your rights and performing Your obligations under this Agreement and agree not to use KWIKSHER Confidential Information for any other purpose, for Your own or any third party’s benefit, without KWIKSHER’s prior written consent.
You further agree not to disclose or disseminate KWIKSHER Confidential Information to anyone other than:
- (i) those of Your employees and contractors, or those of Your faculty and staff if You are an educational institution, who have a need to know and who are bound by a written agreement that prohibits unauthorized use or disclosure of the KWIKSHER Confidential Information; or
- (ii) except as otherwise agreed or permitted in writing by KWIKSHER.
You may disclose KWIKSHER Confidential Information to the extent required by law, provided that You take reasonable steps to notify KWIKSHER of such requirement before disclosing the KWIKSHER Confidential Information and to obtain protective treatment of the KWIKSHER Confidential Information.
You acknowledge that damages for improper disclosure of KWIKSHER Confidential Information may be irreparable; therefore, KWIKSHER is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
B. Information Submitted to KWIKSHER Not Deemed Confidential.
KWIKSHER works with many application and software developers and some of their products may be similar to or compete with Your software.
KWIKSHER may also be developing its own similar or competing applications and products or may decide to do so in the future.
To avoid potential misunderstandings, KWIKSHER cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that You may provide in connection with this Agreement or the Program, including information about Your software and metadata (such disclosures will be referred to as “Licensee Disclosures”).
You agree that any such Licensee Disclosures will be non-confidential. KWIKSHER will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating You.
You release KWIKSHER from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Licensee Disclosures.
Any physical materials You submit to KWIKSHER will become KWIKSHER property and KWIKSHER will have no obligation to return those materials to You or to certify their destruction.
C. Press Releases and Other Publicity.
You may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship without express prior written approval, which may be withheld at KWIKSHER’s discretion.
7. Warranty Disclaimer.
IT IS UNDERSTOOD THAT THE KWIK SOFTWARE AND ANY UPDATES MAY CONTAIN ERRORS. THE KWIK SOFTWARE AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KWIKSHER AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
You acknowledge that KWIKSHER has not publicly announced the availability of the Kwik Software, that KWIKSHER has not promised or guaranteed to You that such Kwik Software will be announced or made available to anyone in the future, that KWIKSHER has no express or implied obligation to You to announce or introduce the Kwik Software, and that KWIKSHER may not introduce a product similar or compatible with the Kwik Software. Accordingly, You acknowledge that any research or development that it performs regarding the Kwik Software or any product associated with the Kwik Software is done entirely at Your own risk. Specifically, the Kwik Software may contain features, functionality or modules that will not be included in the production version of the Kwik Software, if released, or that will be marketed separately for additional fees.
8. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL KWIKSHER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE KWIK SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF KWIKSHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall KWIKSHER’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. Export Control.
You may not use or otherwise export or reexport the Kwik Software except as authorized by Japanese law and the laws of the jurisdiction(s) in which the Kwik Software was obtained. In particular, but without limitation, the Kwik Software may not be exported or re-exported
- (a) into any Japanese embargoed countries or
- (b) to anyone on the Japanese Ministry of Economy, Trade and Industry Denied Person’s List or Entity List.
By using the Kwik Software, You represent and warrant that You are not located in any such country or on any such list.
You also agree that You will not use the Kwik Software for any purposes prohibited by Japanese law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
10. Complete Agreement; Governing Language.
This License constitutes the entire agreement between the parties with respect to the use of the Kwik Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
No amendment to or modification of this License will be binding unless in writing and signed by KWIKSHER.
Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern.
11. Third Party Acknowledgements.
Portions of the Kwik Software utilize or include certain software libraries, third party software, and other copyrighted material.
Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Kwik Software or may otherwise accompany such material, and Your use of such material is governed by their respective terms.