IMPORTANT NOTICE: Read this License Agreement ("Agreement") carefully before using the enclosed Program. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE PROGRAM. By downloading, installing, or using the Program in any way, You acknowledge that You have read, understand and agree to the terms of this Agreement. If You do not agree with these terms, present your receipt or other proof of purchase, together with the Program media, Documentation and packaging (if any) to the entity from which You obtained this product within 30 days to request a refund. THIS IS A LICENSE AND NOT A SALE.
If You, Your company, or Your public agency have signed a written software license agreement with Shiny White Box Limited ("shinywhitebox"), or a subsidiary or authorized reseller of shinywhtebox, covering the Use of the enclosed Program, the terms of the signed license agreement shall take precedence over any conflicting terms of this Agreement.
ABBREVIATIONS AND DEFINITIONS.
Abbreviations and definitions appear at the end of this Agreement.
2.1 shinywhitebox grants to You a nonexclusive, nontransferable, perpetual license to Use the Program. Each Program shall be subject to the usage limitations based on quantity and type of license purchased, as indicated on the Order. If the type of license is not indicated in the Order, each copy shall be licensed for a single Seat, where that Seat may be used on up to three machines (the intention is to allow You to install on more that one machine, but as a single user of the Program). The Program may not be transferred, sold, assigned, sublicensed or otherwise conveyed (whether by operation of law or otherwise) to another party without shinywhitebox's prior written consent and payment of any applicable fees in accordance with shinywhitebox's then current policies. The Program may be transferred to another Machine, or site only if previous installation is removed (that is, a Seat may be used on up to three machines). It is always the intention that installation of multiple machines is for the benefit of the original purchaser, and is not intended to allow three separate users to use the single license.
2.2 You understand and agree that some shinywhitebox Programs and license types are subject to additional or supplemental terms and conditions ("Product Specific License Terms") that are posted on www.shinywhitebox.com/pslt as of the date of the Order for such Programs. Product Specific License Terms are written and shall be enforceable in the English language. You acknowledge that You have had the opportunity to review the Product Specific License Terms applicable to each licensed Program prior to placing an Order. By ordering, installing or using the Program in any way, You acknowledge and agree that You have read, understand and agree to the applicable Product Specific License Terms.
2.3 You may not copy the Program except (a) to make a reasonable number of copies of each Program solely for inactive backup or archival purposes. You may not modify, reverse engineer, decompile or disassemble the Program (except as specifically permitted by law without the possibility of contractual waiver, or as expressly permitted in the Documentation).
2.4 You, at Your own expense, shall be responsible for installing the Program and all Updates.
2.5 Third party products delivered by shinywhitebox that are accompanied by a license agreement from the supplier are provided subject to such supplier license agreement. The terms of this Agreement shall not apply to such third party products, except that as between You and shinywhitebox, the provisions of this Section 2.5, Section 3, Section 7.4 and Section 9.7 shall apply. shinywhitebox PROVIDES SUCH THIRD PARTY PRODUCTS "AS IS" WITHOUT ANY INDEMNITIES OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, CONDITIONS OF MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. shinywhitebox shall not be obligated to provide any Support or error correction services for such third party products, but such services may be available from the third party supplier. Third party products not accompanied by a license agreement from the supplier shall be subject to the terms of this Agreement.
2.6 No more often than once in any 12-month period, shinywhitebox may, at its expense, upon reasonable notice and during business hours, audit the number of copies of the Program in Use and Your compliance with the applicable usage limitations set forth by this Agreement. The auditors shall protect the confidentiality of Your information and abide by Your reasonable security regulations. If the Use of the Program is found to be greater than that for which You are licensed, You shall pay any additional amounts due based upon the prices set forth in the Price List.
2.7 shinywhitebox reserves any and all rights and licenses in and to the Program not expressly granted herein.
3. FEES AND PAYMENT
License and Support fees for the Program are due and payable to shinywhitebox Net 30 days after the invoice date. You shall pay all applicable shipping and handling charges, and sales, use, value added, personal property, or similar taxes, tariffs or governmental charges, exclusive of those based upon shinywhitebox's or its reseller's income and corporate franchise taxes. You will reimburse shinywhitebox for all reasonable costs incurred (including reasonable attorneys' fees) in collecting past due amounts.
4. SUPPORT AND TECHNICAL SERVICES
4.1 The payment of license fees does not entitle You to Support any guaranteed support services or software Updates. However, free support is provided via the shinywhitebox helpdesk (support.shinywhitebox.com) for the Product in question. Payment of license fees does not guarantee fixes to known bugs, or bugs You may find.
4.2 shinywhitebox will provide You the level of Support corresponding to the Support Plan specified on the Order, subject to Your payment of applicable Support Fees. If no Support Plan is specified in the Order, no Support (other than the Free support for the Product) will provided. Support will be provided in accordance with shinywhitebox's then current plan description for such Support Plan solely to Your authorized support contacts for the "Supported Program" listed on such Order. "Supported Program" shall mean the then current Major Version of a listed Program running on the specified Operating System Software. As part of such Support service, shinywhitebox will use commercially reasonable efforts to correct or circumvent reported errors in the Supported Program that can be reproduced at a shinywhitebox support facility. shinywhitebox shall have no obligation to provide Support with respect to: (i) Use of any Program on any computer system other than the specified Machine and Operating System Software; (ii) Use of any version of the Program modified by You in breach of this Agreement; or (iii) Use of versions of different co-operating Supported Programs that are not specified in the applicable Documentation to execute correctly together on a Machine or in a network. shinywhitebox has no obligation to modify any version of the Program to run with new versions of the Operating System Software. shinywhitebox reserves the right to make corrections only to the most current generally available Major Version of the Program.
4.3 You understand and agree that some Updates are subject to Product Specific License Terms that are posted on www.shinywhitebox.com/pslt and also that the provisions of this License Agreement apply to a software Update as well as to a Program.
4.4 The payment of license fees does not entitle You to consulting or education services, however, such services may be available under this Agreement upon the payment of additional fees. Consulting services provided under this Agreement will be billed on a time and materials basis.
5.1 "Confidential Information" shall include the Program (including methods or concepts utilized therein) and all information identified by shinywhitebox as proprietary or confidential. Confidential Information shall remain the sole property of shinywhitebox and shall not be disclosed to any third party without the express written consent of shinywhitebox; except that You may disclose Confidential Information to consultants performing services for Your benefit, provided that such consultants are bound by a written non-disclosure agreement with You that protects such Confidential Information in a manner consistent with this Agreement. Except with respect to the Program, items will not be deemed Confidential Information if (i) available to the public other than by a breach of an agreement with shinywhitebox; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by You without access to the Confidential Information; or (iv) if proven to have been known to You at the time of disclosure. You shall immediately inform shinywhitebox if You are required to produce Confidential Information by operation of law, and if so requested by shinywhitebox, shall provide reasonable assistance to shinywhitebox in seeking to limit such production. A copyright notice on a Program does not, by itself, constitute evidence of publication or public disclosure.
6. PROPRIETARY RIGHTS AND OWNERSHIP
6.1 All of the copyright and intellectual property rights in the Program, Documentation and all copies thereof are owned by shinywhitebox or its subsidiaries, or their respective suppliers and are protected by copyright and/or trade secret laws and international treaty provisions. You acquire only the non-exclusive, non-transferable right to Use the Program as permitted herein, and do not acquire any rights of ownership in the Program.
7. LIMITED WARRANTY AND LIMITATIONS ON LIABILITY
7.1 Unless otherwise specified in the Documentation, for a period of 90 days from the date of shipment (or date on which an electronic download access code is made available) to You, shinywhitebox warrants that the Program, when Used in accordance with the Documentation, will operate in material conformity with such Documentation and the Program media shall be free of defects. In the event of a non-conforming Program or defective media, Your sole remedy shall be, at shinywhitebox's option, replacement of the defective Program or a refund of the license fees received by shinywhitebox for the affected Program. shinywhitebox warranties extend solely to You, the original licensee.
7.2 Subject to Section 7.5, shinywhitebox DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF MERCHANTABLE QUALITY, WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE PROGRAM, DOCUMENTATION, SUPPORT OR OTHER SERVICES RELATED TO THE PROGRAM. Some jurisdictions do not allow limitations on implied warranties so the above limitations may not apply to You. NO WARRANTY IS MADE REGARDING THE RESULTS TO BE OBTAINED FROM ANY PROGRAM OR SERVICES, THAT THE PROGRAM WILL BE ERROR FREE, THAT ALL ERRORS IN THE PROGRAM WILL BE CORRECTED, OR THAT THE PROGRAM'S FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE YOUR RESPONSIBILITY TO (a) REGULARLY BACK UP DATA, AND (b) ADEQUATELY TEST PROGRAM PRIOR TO DEPLOYMENT.
7.3 The Program and third party products are not fault-tolerant and are not designed, manufactured or intended for use or resale in the on-line control of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Program could lead directly to death, personal injury, or severe physical or environmental damage, and shinywhitebox and its suppliers specifically disclaim any express or implied warranty of fitness for such purposes.
7.4 LIMITATIONS ON LIABILITY. To the full extent permitted by law, NEITHER shinywhitebox, ITS SUBSIDIARIES, NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR EXPECTED SAVINGS, LOSS OF OR DAMAGE TO GOODWILL OR ANY OTHER FORM OF EXPECTATION BENEFIT, OR LOSS OR DAMAGE ARISING FROM ANY LIABILITY TO ANY THIRD PARTY, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF shinywhitebox AND ITS SUBSIDIARIES, IF ANY, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE PROGRAM OR RELATED SERVICES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LICENSE OR SERVICE FEES PAID FOR THE PROGRAM OR SERVICES GIVING RISE TO THE CLAIM. LICENSORS OF SOFTWARE COMPONENTS INCLUDED IN shinywhitebox PRODUCTS SHALL NOT BE LIABLE FOR DIRECT DAMAGES.
7.5 In the event that any Program license or services supplied under this Agreement is deemed to constitute a supply of goods or services to a consumer as defined in the Consumer Guarantees Act 1993 as amended or other legislation ("the Acts") nothing contained in this Agreement excludes, restricts or modifies any condition, warranty or other obligation herein, where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon You pursuant to any of the Acts, shinywhitebox's sole liability for breach of any such condition, warranty or other obligation shall be limited to: (a) in relation to goods: (i) replacement or repair, or (ii) refund of the fees paid for such goods; and (b) in relation to services: (i) the supplying of the services again, or (ii) refund of the fees paid for such services; as in each case shinywhitebox may elect.
8. TERM AND TERMINATION
8.1 This license is effective until terminated. shinywhitebox may terminate a license if You have not paid any fees due within 15 calendar days after written notice that payment is past due. You may terminate the license at any time by destroying the Program and documentation. Either party may terminate this Agreement upon any other material breach of this Agreement by the other party that has not been corrected within 60 calendar days after written notice. Upon termination of this Agreement, all licenses granted hereunder shall terminate, You shall cease Using the Program and Documentation (whether or not modified or merged into other materials) and You shall certify in writing to shinywhitebox that all copies (in any form or media) have been destroyed or returned to shinywhitebox. Termination shall not relieve You from paying all fees accruing prior to termination and shall not limit either party from pursuing any other available remedies. Sections 1, 5, 6, 7, 8, 9 and 10 shall survive termination of this Agreement.
9.1 Neither this Agreement nor any license granted hereunder may be assigned by You (whether by operation of law or otherwise) without shinywhitebox's prior written consent. Any such purported assignment shall be void.
9.2 This Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. This Agreement may be modified only in writing signed by both parties. Purchase Orders shall be binding as to the products and services ordered, the fees due and the site for installation or performance of services. Other terms and preprinted terms on or attached to any Purchase Order shall be void.
9.4 shinywhitebox shall not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of: acts by You, acts of God or the public enemy, war, terrorism, riots, strike, embargo, acts of civil or military authority, unavailability of communications facilities or energy sources, or any other cause that is beyond the reasonable control of shinywhitebox.
9.5 All notices relating to this Agreement shall be in writing and delivered to the other party by overnight delivery service or first class prepaid mail with return receipt requested.
9.6 If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision that approximates the intent and economic effect of the affected provision. The failure or delay by either party to enforce any term of this Agreement shall not be deemed a waiver of such term.
9.7 This Agreement shall be governed by, and construed and enforced in accordance with the laws of New Zealand without regard to conflict of law principles. Jurisdiction and venue over any dispute arising under this Agreement shall lie exclusively within the courts of New Zealand, and each of the parties hereby irrevocably submits to the jurisdiction of the courts of New Zealand. The United Nations Convention on the International Sale of Goods, the application of which is expressly excluded, shall not govern this Agreement.
9.8 If you have any questions concerning this Agreement, write to shinywhitebox Limited, C/o 16 The Anchorage, Whitby, Wellington, New Zealand.
10.1 All iShowU products provide "best effort" capturing. This means they will try to achieve the frames-per-second (fps) as specified by the user, but may not be able to achieve it due to hardware or software limitations.
11 ABBREVIATIONS AND DEFINITIONS
"Agreement" - This License Agreement, together with any applicable Supplements and Product Specific License Terms, and each Order. "Application License" or "AP" - The limited right to install the Program on any server at the single physical location (or approved hosting site) specified for such license in the applicable Order. "Concurrent User License" or "CU" - The limited right for a maximum number of users, as indicated in the applicable Order, to directly or indirectly access a single server copy of a Program at any one time. Under the Concurrent User license model, each Concurrent User may only access a single, identifiable licensed server. "ESD" - Electronic Software Download. "Exhibit A" - a standard form purchase-authorizing document made available by shinywhitebox which may be substituted for a Purchase Order. "Machine" - A single computer hardware system identified on the applicable Order running a single copy of the Operating System Software. "Major Version" or "Major Release" - A major Update release of the Programs containing new features and functions as well as error corrections. "Networked Seat" - see "Seat". "Operating System Software" - The operating system software listed in the Order applicable to the relevant copy of the Program. "Order" - a Purchase Order or Exhibit A signed by Customer and accepted by shinywhitebox, or internet order as processed by any Payment Provider of shinywhitebox. "OT" - denotes "other", for products or services included on an Order that are not otherwise defined. "Payment Provider" - Any third party responsible for the processing of Orders and Payments for shinywhitebox (e.g: Kagi) "Price List" - shinywhitebox's then current price list for the country in which the Program is to be installed. "Primary Copy" - a licensed copy of the Program provided by shinywhitebox, including a copy provided initially as a trial copy. "Program" - the object code version of the software product(s) listed in the Order, as well as any and all Updates and authorized copies. Although the Program media may contain other software products, Customer is licensed to install and Use only the designated Program. "Purchase Order" - a purchase order or other purchase-authorizing document issued by Customer for shinywhitebox products and/or services and accepted by shinywhitebox, as confirmed by a shinywhitebox invoice. "Quantity of Licenses" - the number of copies, Servers, Seats, Concurrent Users or CPUs, as applicable, licensed for a particular Program pursuant to an Order. "Seat", or "ST" - a specific identifiable unique accessor of information such as (but not limited to) a terminal, personal computer, single user workstation, personal digital assistant ("PDA"), wireless or real time device. "Secondary Copy" - a licensed copy of the Program reproduced by Customer from the Primary Copy. "Server" or "SR" - a computer containing software, which permits it to await and fulfill services to other computers. "Standalone Seat" or "SS" - The limited right to install the Program on a single workstation Machine (and not a server Machine) for access solely by the single workstation Machine upon which it resides. "Support" - The technical support plan selected by Customer. "Updates" means error corrections, maintenance releases and Major Version releases of the Program made available to shinywhitebox customers under certain shinywhitebox Support plans. "Upgrade" means (i) transfer of the Program to a Machine of a higher power, i.e. transfer to a Machine that provides greater processing capacity, or (ii) Customer migration from one edition of a Program to another edition with increased functionality, e.g. from 1.13 to 1.17. "Use" - to load, view, print, update, access, utilize, or store the Program.