Last Updated: 17th March 2015
This End-User License Agreement (the "License" or "Agreement") is between Uniblue Systems Ltd. (C32567), a limited liability company registered in Malta and having its registered address at Uniblue, 62/64, Progetta House, Tower Road, Swatar, Birkirkara - BKR 4012, Malta, Europe (hereinafter "Uniblue") and the end user ("You").
By clicking the box marked “I agree” or otherwise indicating assent electronically, You consent to be bound by and become a party to this License and You represent that You have the authority to enter into this Agreement.
If You do not agree to be bound by all of the terms of this Agreement click the “Cancel” button and do not install the Uniblue Software. If You purchased a license to the Uniblue Software on tangible or intangible media without the opportunity to review this License and You do not accept this Agreement, You may obtain a refund of the amount You originally paid if You (i) do not use the Uniblue Software and (ii) return it to the vendor from which it was acquired, or to Uniblue, together with proof of payment within thirty (30) days from the date of purchase. Uniblue has no obligation to make or cause a refund if the vendor is not authorized by Uniblue to sell or resell this License or to distribute the Uniblue Software. For the purposes of this Agreement, "Uniblue Software" shall mean the software displaying this License, Documentation and any Copies You are permitted to make under this Agreement, excluding Third Party Software.
Uniblue recommends that You keep a copy of this Agreement for Your records.
2. Grant of the License
Subject to the terms and conditions of this License, and subject to payment of any applicable fees, Uniblue grants You a limited, personal, non-exclusive, non-transferable, non-sub-licensable and revocable license to install, solely for Your own private use, one (1) Copy of the Uniblue Software and related written materials in either printed text or machine readable version (the "Documentation"). Any use of more copies of the Uniblue Software than licensed is prohibited. The license for the Uniblue Software may not be shared by alternating use of the Uniblue Software between different computers. These limitations apply even if You receive the Uniblue Software on multiple media (e.g. electronic download and CD). For the purposes of this Agreement, "Copy" shall include the original installation of the Uniblue Software. You shall not allow and shall prevent others from making or obtaining copies of the Uniblue Software.
3. License Restrictions
Unless specifically permitted in terms of this Agreement, You may not (i) copy, reproduce, change, modify, create a derivative work thereof, reverse compile or reverse engineer, disassemble, decompile or otherwise attempt to extract the source code or internal data of the Uniblue Software or any part thereof; (ii) remove or in any way obscure any ownership or trademark notices on the Uniblue Software; (iii) sublicense, sell, rent, lease, transfer, assign, display, host, outsource, disclose, distribute or otherwise commercially exploit the Uniblue Software; (iv) circumvent any serial number or any other mechanism used or deployed by Uniblue to protect the Uniblue Software against unlicensed use, copying or distribution; (v) post or otherwise make available, the Uniblue Software or any portion thereof, including the serial number, on the Internet or other publicly available forum; (vi) export or re-export the Uniblue Software or any underlying information or technology in violation of the export laws of the United States, the European Union or any other applicable laws or regulations; or (vii) make any use of such Uniblue Software in any way that violates any applicable law.
4. Licensed Copies and Networks
Any simultaneous storage, maintenance, or use of the Uniblue Software is prohibited. You agree either to implement access security mechanisms to prevent simultaneous use or to pay an additional fee according to the number of users with access to a network enabling use of the Uniblue Software by multiple computers simultaneously.
5. Upgrades and Content Updates
Uniblue may provide You with Upgrades and/or Content Updates from time to time at no charge during the Term of this Agreement. For the purposes hereof, "Upgrade" means a new version of the Uniblue Software containing technical modifications, updated information, altered functionality, or any other changes that are intended by Uniblue to improve or to add to, delete or otherwise modify any aspect of the Uniblue Software; and "Content Update" means an update of the content used by the Uniblue Software that might need to be updated from time to time. Upgrades and/or Content Updates may be provided by Uniblue via on-line services. The Uniblue Software may automatically download and install Upgrades and/or Content Updates from time to time. You agree to receive such updates (and permit Uniblue to deliver these to you) as part of your use of the Uniblue Software. This License does not otherwise permit You to obtain and use Upgrades and/or Content Updates.
Note: The Uniblue Software may require Content Updates in order to work effectively.
6. Evaluation Copy
You may be granted an evaluation copy of the Uniblue Software free of charge (the "Evaluation Copy"). Certain features and/or functionality of the Uniblue Software may be locked, or be fully or partially unavailable in the Evaluation Copy. In order to benefit from all features and functionality of the Uniblue Software, You must pay any applicable fees and input a valid serial number. Upon such actions being taken, the Evaluation Copy shall cease from being considered an Evaluation Copy and all the terms of this Agreement shall commence to apply in their entirety. Clauses 1, 3, 9 to 15, and 18 to 21 shall apply equally to an Evaluation Copy.
7. Activation and other Technological Measures
When You acquire a license You will be provided with a serial number. You must activate the Uniblue Software by entering the serial number as prompted by such Software. There may be other technological measures, including enforcement technology, in the Uniblue Software that are designed to prevent unlicensed or illegal use. You agree that Uniblue may use these measures in its reasonable discretion.
8. Scan Results
Scans conducted with this Uniblue Software may detect computer errors that occur as a natural consequence of routine use of the Microsoft Windows Operating System, as well as other errors that could have a detrimental effect on the operation of your computer. In some instances, one or more errors identified in the scan may be harmless and will not damage the health, performance, or operation of the computer system. Certain computer errors may consistently reappear and thus will be repeatedly detected by the Uniblue Software. Scans conducted with this Uniblue Software may also detect one or more files that are harmless, the presence of which will not damage the health, performance, operation, or privacy of Your computer system.
9. Intellectual Property Protection
The Uniblue Software is protected by copyright, as well as other intellectual property laws both nationally and under international treaty provisions. Notwithstanding anything else, the Uniblue Software is licensed and not sold. This License does not give You any intellectual property rights in the Uniblue Software or any Third Party Software, and does not grant You any license, right or interest in any trade mark, trade name or service mark of Uniblue or any other third party. Uniblue owns and retains all right, title and interest in and to the Uniblue Software, all Copies or portions of the Uniblue Software, and any derivative works thereof.
10. Limited Warranty
The Uniblue Software is provided to You under this License on an "as is" basis, without warranty or representation of any kind. The Uniblue Software is provided as general purpose software and not for Your particular use. You accept that Uniblue and its suppliers do not represent or warrant that the Uniblue Software will meet Your requirements or be error or defect free or that any defects in the operation or functionality of the Uniblue Software will be corrected. Uniblue further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement of intellectual property rights. Any implied warranties that cannot be excluded are limited to thirty (30) days or to the shortest period permitted by applicable law, whichever is the greater. Your use of the Uniblue Software is at Your sole risk and You are responsible for any decisions made and actions taken based on the Uniblue Software, irrespective of any recommendations proferred by such Software. Uniblue makes no representation regarding Third Party Software which may be accessed through or included with the Uniblue Software.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY/INSTITUTE, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL UNIBLUE OR ITS SUPPLIERS, BE LIABLE TO YOU OR ANY THIRD PARTY BENEFICIARY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGE FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, COMPUTER FAILURE OR MALFUNCTION AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF, OR IN ANY WAY RELATED TO, THE USE OR THE INABILITY TO USE THE UNIBLUE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE IN CONNECTION WITH ANY ASPECT OF THIS SOFTWARE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF UNIBLUE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THE TOTAL LIABILITY OF UNIBLUE OR ITS SUPPLIERS WHETHER IN TORT, CONTRACT OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE UNIBLUE SOFTWARE ("LICENSE FEE"). YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK AND THAT THE LIMITATION SET FORTH IN THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitations might not apply to You.
You will indemnify and hold Uniblue harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to Your use of the Uniblue Software. Your obligations under this section shall survive the expiration or termination of this Agreement.
14. Third Party Software
Other third party software may be distributed together with the Uniblue Software (the "Third Party Software"). Any and all such Third Party Software may require notices and/or be subject to different license terms. Such required Third Party Software notices and license terms, if any, may be accessed in the folder titled "Third Party Terms" located in the application directory of the Uniblue Software, or through the Third Party Software itself. By accepting this License Agreement, You are also accepting the license terms, if any, under which the Third Party Software is made available. You will not enter into a contractual relationship with Uniblue regarding such Third Party Software and Uniblue accepts no responsibility for Your use of same.
Except with regards to an Evaluation Copy for which the term shall be for so long as Uniblue makes such Evaluation Copy available to You, the License shall automatically terminate if You fail to comply with any of its terms, without prejudice to the rights of Uniblue to compensation for damages in terms of the applicable law. Immediately upon such termination, You shall return to Uniblue or destroy all Copies of the Uniblue Software in Your possession. The terms of this Agreement which are intended to survive expiration or termination shall remain in effect.
Uniblue is not bound to provide you with support services but may opt to do so at its discretion. Support may not be available in the language in which the Product was acquired and additional terms may govern support services.
If Upgrades are granted, such Upgrades may be accompanied by a new License and may be conditional on acceptance of such License.
18. General Provisions
Any rights not expressly granted under this License are being reserved. This License is the entire agreement between You and Uniblue with respect to this subject matter and supersedes any and all prior or contemporaneous oral or written agreements, representations, negotiations, any additional terms or other similar communication between the parties. If any part of this Agreement is found to be void, unenforceable or invalid, that part will be deemed stricken and will not affect the validity of the other License provisions. Failure by either party to enforce any provision of this License will not be deemed a waiver of future enforcement of that or any other provision.
19. Choice of law
This Agreement will be governed by and construed under the Laws of Malta, Europe excluding any conflict of rules of law.
20. Binding Arbitration
IF YOU ARE A UNITED STATES CITIZEN, YOU AGREE TO ARBITRATE DISPUTES WITH UNIBLUE AS FOLLOWS:
A. Purpose. If You have a Dispute (as defined below) with Uniblue that cannot be resolved through an informal dispute resolution with Uniblue, You or Uniblue may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means You will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
B. Definitions. The term “Dispute” means any dispute, claim, or controversy between You and Uniblue regarding any aspect of Your relationship with Uniblue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional or non-intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, “Uniblue” means Uniblue and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.
C. Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY UNIBLUE IN WRITING WITHIN 30 DAYS OF THE DATE OF YOUR PRODUCT ORDER BY VISITING http://www.uniblue.com/support/ticket/, OR BY MAIL TO UNIBLUE AT UNIBLUE SYSTEMS LTD - 62/64, PORGETTA HOUSE, TOWER ROAD, SWATAR, BIRKIRKARA - BKR 4012, MALTA, (EUROPE), ATTN: LEGAL DEPARTMENT. YOUR WRITTEN NOTIFICATION TO UNIBLUE MUST INCLUDE YOUR NAME, ADDRESS AND UNIBLUE ORDER NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH UNIBLUE THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH UNIBLUE OR THE DELIVERY OF PRODUCTS OR SERVICES TO YOU BY UNIBLUE.
D. Initiation of Arbitration Proceeding/Selection of Arbitrator. If You or Uniblue elect to resolve Your Dispute through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org under the Commercial Arbitration Rules of the AAA.
E. Arbitration Procedures:
1. Because the License(s), product(s) and/or service(s) provided to You by Uniblue concern interstate and/or international commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where You receive the product or service from Uniblue may apply to and govern the substance of any Disputes if for any reason the Choice of Law Provision of this Agreement does not apply. No state statute pertaining to arbitration shall be applicable under this Arbitration Provision. If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, this Arbitration Provision shall govern. If AAA will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve Your Dispute with Uniblue. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of the Agreement with Uniblue, this Arbitration Provision shall govern.
2. A single arbitrator will resolve the Dispute. The Arbitrator shall also have the sole authority to determine whether a Dispute is subject to arbitration in accordance with this Arbitration Provision. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
3. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
4. If an award granted by the arbitrator exceeds $25,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
1. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER UNIBLUE CUSTOMERS, OR OTHER PERSONS SIMILARLY SITUATED.
G. Location of Arbitration. The arbitration will take place at a location convenient to You in the area where You purchased the Uniblue Software.
H. Payment of Arbitration Fees and Costs. UNIBLUE WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, FEES FOR ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN UNIBLUE’S FAVOR, YOU SHALL REIMBURSE UNIBLUE FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE UNIBLUE FOR ANY OF THE FEES AND COSTS ADVANCED BY UNIBLUE. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, UNIBLUE WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.
I. Severability. If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court. In the event this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, You and Uniblue have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
J. Exclusions from Arbitration. YOU AND UNIBLUE AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY UNIBLUE THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER CUSTOMER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF PRODUCTS OR SERVICE.
K. Continuation. This Arbitration Provision shall survive the termination of Your Agreement and/or any service(s) with Uniblue.
21. Venue For All Other Litigation
All disputes arising out of or in relation to this Agreement that (a) do not include a United States citizen as party or (b) involve any claim that is not subject to the arbitration provisions of Section 20 for any reason, including, but not limited to, Your timely notice opting out of Arbitration in accordance with Section 20(C) above, shall be submitted to the exclusive jurisdiction of the Courts of Malta, provided however, that Uniblue retains the right, at its option, to pursue any litigation arising from Your use of the Uniblue Software in Your national Courts if You are not a citizen of Malta.
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