In this Agreement unless the context otherwise requires the following words or expressions shall have the following meanings:
“Affiliate” or “Affiliates” means any corporation, company or entity that, directly or indirectly through one or more intermediaries, controls more than 50% of the outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) of Nanuka; or any corporation, company or other entity in which more than 50% of its outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) is controlled by, or is under common control with, Nanuka.
“End User” means the end user of the Software.
“Documentation” means any online or any documentation provided by Nanuka in any media.
“Effective Date” means the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above or upon installation or use of the Software by the End User, whichever occurs earlier.
“EULA” means this End User Licence Agreement including any amendments or modifications thereof.
“IP Rights” means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, know-how, trade secrets and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.
“Nanuka” means Nanuka Pte Ltd, a Singapore company with its registered address at [ADDRESS], and shall include its Affiliates, successors and assigns.
“Product” means [SOFTWARE PRODUCT]
“Software” means the software installed or embedded in the Product including without limitation any future versions, improvements, developments, programming fixes, updates and upgrades thereof.
2. THIS AGREEMENT
2.1 This Agreement – This Agreement and any new versions including any amendments or modifications of this Agreement shall apply to the use by the End User of the Software installed or embedded in the Product. Nanuka reserves the right to introduce new versions in substitution of this Agreement, or to make such amendments or modifications as it deems fit. Such new versions, amendments or modifications shall come into force upon Nanuka giving seven (7) days prior written email notice thereof to the End User, and such new versions, amendments or modifications shall thereafter become immediately binding on the End User.
2.2 Acceptance of Terms – The End User may accept the terms and conditions set out in this Agreement by clicking on the ACCEPT button or similar button or links as may be designated by Nanuka. And by clicking on the ACCEPT button, the End User agrees that it has read and understood this Agreement and agree to be bound by its terms and conditions, and the End User further agrees to waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
3. GRANT OF LICENCE
3.1 Grant – Subject to the terms of this Agreement, Nanuka hereby grants to the End User a limited, non-exclusive, non-sublicensable, non-assignable, royalty free licence to use the Software installed or embedded in the Product for the sole purpose of operating the Product or in conjunction with the operation of the Product and such other purposes as may be expressly permitted by Nanuka.
3.2 Restriction – The End User shall not sell, assign, rent, lease, distribute, export, import, act as intermediary or provider, or otherwise grant rights to any third party with regard to the Software or any part thereof.
3.3 No Modification – The End User shall not undertake, cause, permit or authorize the modification, copying, creation of derivative works, translation, reverse engineering, decompiling, disassembling, adaptation or reduce the Software to human readable form, or hacking of the Software or any part thereof except to the extent permitted by Nanuka.
3.4 Commencement & Termination – This Agreement shall commence on the Effective Date and shall remain effective until terminated. The End User’s rights under this Agreement are terminable by Nanuka at any time without notice. This Agreement will terminate if the End User violates or breaches any terms of this Agreement. Upon termination of this Agreement, the End User shall cease to use the Software.
3.5 Survival – All provisions relating to Nanuka’s IP Rights shall survive the termination of this Agreement.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Exclusive Ownership – Any and all IP Rights in the Software is and shall remain the exclusive property of Nanuka and/or its licensors. Nothing in this Agreement shall or intends to transfer any such IP Rights to, or to vest any such IP Rights in, the End User. The End User is only entitled to the limited use of the IP Rights granted to the End User in this Agreement.
4.2 Not to Interfere with IP Rights – The End User shall not take any action to jeopardize, limit or interfere with Nanuka’s IP Rights. Any unauthorized use of Nanuka’s IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
4.3 Third Party IP Rights – All title and IP Rights in and to any third party content (if any) that is not contained in the Software, but may be accessed through use of the Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
4.4 No Removal of Notices – The End User agrees not to remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Nanuka’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Software or any materials.
5. NANUKA’S RIGHTS
5.1 New Versions of Software – Nanuka, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Software. Nanuka has no obligation to make available to the End User any subsequent versions of the Software. The End User may have to enter into a renewed version of this Agreement, in the event the End User wishes to download, install or use a new version of the Software.
5.2 Suspension – Nanuka may, in its sole discretion and to the maximum extent permitted by applicable law, modify or discontinue or suspend the End User’s ability to use any version of the Software, and/or disable any Software that the End User may already have accessed without any notice to the End User, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where the End User, at Nanuka’s discretion, are in breach of this Agreement, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
6. END USER’S OBLIGATIONS
6.1 Lawful Purpose – The End User shall use the Software solely in conjunction with the Product for lawful purposes. In this respect the End User may not, without limitation (a) intercept or monitor, damage or modify any communication with the Software or the Product; (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 Software or the communication; (c) use the Software or the Product to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or (f) use any third party software, material or content with the Software or the Product without the prior written consent of Nanuka.
6.2 Representations – The End User represents and warrants that the End User is authorized to enter into and comply with this Agreement. Furthermore, the End User represents and warrants that the End User shall at any and all times meet with the End User’s obligations under this Agreement, as well as any and all applicable laws, regulations and policies that may apply to the use of the Software and the Product.
6.3 Indemnity – The End User agrees to indemnify, defend and hold Nanuka harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by Nanuka, in connection with or arising out of the End User’s (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Software, or (d) any improper or unlawful use of the Software or the Product.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED AND LICENSED “AS IS” AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW OR OTHERWISE, REGARDING THE SOFTWARE, OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. NANUKA DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE SOFTWARE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY NANUKA. THERE IS NO IMPLIED WARRANTY OF NON-INFRINGEMENT WHATSOEVER.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT SHALL NANUKA BE LIABLE TO THE END USER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS BASED UPON A CLAIM GROUNDED IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE, EVEN IF SUCH LOSS WAS REASONABLY FORSEEABLE OR NANUKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITATION OF LIABILITY OR LIMITED REMEDY, NANUKA’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, UNDER ANY LEGAL GROUND OR THEORY, SHALL BE LIMITED TO THE AMOUNT OF THE LICENCE FEE PAID BY THE END USER.
9.1 Entire Agreement – This Agreement embodies all the terms and conditions agreed upon between the End User and Nanuka as to the subject matter of this Agreement and supersedes and cancels in all respects all previous agreements and undertakings, between the End User and Nanuka with respect to the subject matter hereof whether such be written or oral.
9.2 No Assignment – All rights and obligations hereunder are personal to the End User and the End User shall not assign any such rights and obligations to any third party without the prior consent in writing of Nanuka.
9.3 No Waiver – No failure by Nanuka to exercise and no delay by Nanuka in exercising any right, power or remedy under this Agreement will operate as a waiver. Nor will any single or partial exercise by Nanuka of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy by Nanuka. No waiver shall be valid unless in writing signed by Nanuka. The rights and remedies herein are in addition to any rights or remedies provided by applicable law.
9.4 Severance – Any one or more clauses, stipulations or provisions of this Agreement, or any part thereof, which is declared or adjudged to be illegal, invalid, prohibited or unenforceable under any applicable law in any jurisdiction shall be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating, vitiating or rendering unenforceable the remaining clauses, stipulations or provisions of this Agreement, and any such illegality, invalidity, prohibition or unenforceability in any jurisdiction shall not invalidate, vitiate or render unenforceable any such clauses, stipulations or provisions in any other jurisdiction
10. GOVERNING LAW AND JURISDICTION
10.1 Governing Law – This Agreement shall be governed by, interpreted and construed in accordance with the laws of Singapore.
10.2 Jurisdiction – The End User agrees that the courts of Singapore shall have exclusive jurisdiction to hear and determine any action or proceeding arising out of or in connection with this Agreement and for that purpose the End User irrevocably submit to the exclusive jurisdiction of such courts.
11. RIGHTS OF THIRD PARTIES NOT APPLICABLE
Except for the End User specifically identified in this Agreement and Nanuka, any person or entity who is not a party to this Agreement whether or not any benefit is conferred or purported to be conferred on him directly or indirectly has no rights under the Singapore Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term or condition of this Agreement.
THE END USER EXPRESSLY ACKNOWLEDGE THAT THE END USER HAS READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO USE THE SOFTWARE, THE END USER EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND AGREES TO NANUKA’S RIGHTS SET FORTH HEREIN.