ShiVa Software End User Licence Agreement (EULA)
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN SECTION 2; TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTIONS 6 AND 7; LIABILITY IN SECTION 8; AND SPECIFIC PROVISIONS AND EXCEPTIONS IN SECTION 13. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE.
ShiVaTech own all intellectual property in the Software. The Software is licensed, not sold. ShiVaTech permits you to copy, download, install, use, or otherwise benefit from the functionality or intellectual property of the Software only in accordance with the terms of this agreement. Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate licence agreement or “Read Me” file located near such materials.
THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED COPYING. THE ACTIVATION TECHNOLOGY MAY PREVENT YOUR USE OF THE SOFTWARE IF YOU DO NOT FOLLOW THE ACTIVATION PROCESS DESCRIBED IN THE SOFTWARE AND DOCUMENTATION. Please refer to the help pages relative to the activation dialog boxes for information about product activation.
“ShiVaTech” means ShiVa Technologies SAS, a corporation legally registered in France, operating under the registered name of ShiVa Technologies, 6 traverse des Pervenches, 06130 Grasse, France.
“Computer” means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include the Internet or any other network community open to the public, including but not limited to membership or subscription driven groups, associations and similar organizations.
“Permitted Number” means one (1) unless otherwise indicated under a valid licence (e.g., volume licence) granted by ShiVaTech.
“Software” means (a) all of the information with which this agreement is provided, including but not limited to (i) ShiVaTech or third party software files and other computer information; (ii) sample and stock photographs, images, sounds, clip art and other artistic works (“Stock Files”); (iii) related explanatory written materials and files (“Documentation”); and (b) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by ShiVaTech at any time, to the extent not provided under a separate agreement (collectively, “Updates”).
2. Software Licence.
As long as you obtained the Software from ShiVaTech or one of its authorized licensees and as long as you comply with the terms of this agreement, ShiVaTech grants you a non-exclusive licence to use the Software in the manner and for the purposes described in the Documentation, as further set forth below. See Section 13 for specific provisions related to certain components.
2.1 General Use.
You may install and use one copy of the Software on up to the Permitted Number of your compatible Computers; or
2.2 Server Deployment.
You may install one copy of the Software on one Computer file server within your Internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of other Computers within the same Internal Network;
2.3 Server Use.
You may install one copy of the Software on one Computer file server within your Internal Network for the purpose of using the Software through commands, data or instructions (e.g., scripts) from another Computer within the same Internal Network, provided that the total number of users (not the concurrent number of users) that are permitted to use the Software on such Computer file server does not exceed the Permitted Number. No other network use is permitted, including, but not limited to use of the Software, either directly or through commands, data or instructions, from or to a Computer not part of your Internal Network, for Internet or web hosting services or by any user not licensed to use this copy of the Software under a valid licence from ShiVaTech;
2.4 Backup Copy.
You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
2.5 Stock Files.
Unless stated otherwise in the “Read-Me” files associated with the Stock Files, which may include specific rights and restrictions with respect to such materials, you may display, modify, reproduce and distribute any of the Stock Files. However, you may not distribute the Stock Files on a stand-alone basis (i.e., in circumstances in which the Stock Files constitute the primary value of the product being distributed). Stock Files may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene or pornographic material or any material that infringes upon any third party intellectual property rights or in any otherwise illegal manner. You may not claim any trademark rights in the Stock Files or derivative works thereof.
2.6 Samples Files.
2.6.1. You may copy and distribute the source application as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the source application a copy of this License along with the source application. You may not charge a fee for the sole service of providing access to and/or use of the source application via a network (e.g. the Internet), whether it be via the world wide web, FTP, or any other method.
2.6.2. You may modify your copy or copies of the source application or any portion of it, thus forming works based on the Content, and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of this condition:
You can only use source code, graphics assets stay the ShiVaTech properties.
3. Intellectual Property Ownership.
The Software and any authorized copies that you make are the intellectual property of and are owned by ShiVaTech. The structure, organization and code of the Software are the valuable trade secrets and confidential information of ShiVaTech. The Software is protected by law, including but not limited to the copyright laws of France and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by ShiVaTech.
You may not copy the Software except as set forth in Section 2 and 13. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
4.2 No Modifications.
You may not modify, adapt or translate the Software. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted under applicable law to decompile only in order to achieve interoperability with the Software.
4.3 No Unbundling.
The Software may include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product on Computers as permitted by Sections 2 and 13. You are not required to use all component parts of the Software, but you may not unbundle the component parts of the Software for use on different Computers. You may not unbundle or repackage the Software for distribution, transfer or resale. See Section 13 for specific exceptions to this Section.
4.4 No Transfer.
YOU MAY NOT RENT, LEASE, SELL, SUBLICENCE, ASSIGN OR TRANSFER YOUR RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE PERMITTED HEREIN. You may, however, transfer all your rights to use the Software to another individual or legal entity provided that: (a) you also transfer (i) this agreement and (ii) the serial number(s), the Software and all other software or hardware bundled, packaged or pre-installed with the Software, including all copies, upgrades, updates and prior versions; (b) you retain no upgrades, updates or copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions under which you purchased a valid licence to the Software. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER EDUCATION, PRE-RELEASE, OR NOT FOR RESALE COPIES OF THE SOFTWARE. Prior to a transfer ShiVaTech may require that you and the receiving party confirm in writing your compliance with this agreement, provide ShiVaTech with information about yourselves, and register as end-users of the Software. Allow 4-6 weeks to transfer.
If the Software is an upgrade or update to a previous version of the Software, you must possess a valid licence to such previous version in order to use such upgrade or update. All upgrades and updates are provided to you on a licence exchange basis. You agree that by using an upgrade or update you voluntarily terminate your right to use any previous version of the Software. As an exception, you may continue to use previous versions of the Software on your Computer after you use the upgrade or update but only to assist you in the transition to the upgrade or update, provided that the upgrade or update and the previous versions are installed on the same computer. Upgrades and updates may be licensed to you by ShiVaTech with additional or different terms.
6. LIMITED WARRANTY.
Except as may be otherwise provided in Section 13, ShiVaTech warrants to the individual or entity that first purchases a licence for the Software for use on Computers pursuant to the terms of this agreement that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO PATCHES, PRE-RELEASE (BETA), TRYOUT, STARTER, EVALUATION, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF SOFTWARE (See Section 13). All warranty claims must be made, along with proof of purchase, within such ninety (90) day period. If the Software does not perform substantially in accordance with the Documentation, the entire liability of ShiVaTech and its affiliates and your exclusive remedy will be limited to either, at ShiVaTech’s option, replacement of the Software or refund of the licence fee you paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY ShiVaTech AND ITS AFFILIATES AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ShiVaTech, ITS AFFILIATES OR SUPPLIERS’ BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ShiVaTech AND ITS AFFILIATES AND SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES, ONLINE SERVICES AND CD SERVICES AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The provisions of Sections 7 and Section 8 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this agreement.
8. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE AND AS OTHERWISE PROVIDED IN SECTION 13, IN NO EVENT WILL ShiVaTech OR ITS AFFILIATES OR SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF A ShiVaTech REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ShiVaTech’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this agreement limits ShiVaTech’s liability to you in the event of death or personal injury resulting from ShiVaTech’s negligence or for the tort of deceit (fraud). ShiVaTech is acting on behalf of its affiliates and suppliers for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose.
9. Governing Law.
This agreement will be governed by and construed in accordance with the substantive laws in force in France. The respective courts of the town of Antibes shall have non-exclusive jurisdiction over all disputes relating to this agreement.
10. General Provisions.
If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This agreement will not prejudice the statutory rights of any party dealing as a consumer. For example, for consumers in New Zealand who obtain the Software for personal, domestic or household use (not business purposes), this agreement is subject to the Consumer Guarantees Act. This agreement may only be modified by a writing signed by an authorized officer of ShiVaTech. The English version of this agreement will be the version used when interpreting or construing this agreement. This is the entire agreement between ShiVaTech and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
11. Notice to U.S. Government End Users.
11.1 Commercial Items.
The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
11.2 U.S. Government Licensing of ShiVaTech Technology.
You agree that when licensing ShiVaTech Software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227-7202-1 and 227-7202-4 (for the Department of Defense).
12. Compliance with Licences.
If you are a business, company or organization, you agree that upon request from ShiVaTech or its authorized representative you will within thirty (30) days fully document and certify that use of any and all ShiVaTech software at the time of the request is in conformity with your valid licences from ShiVaTech.
13. Specific Provisions and Exceptions.
This section sets forth specific provisions related to certain components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this section is in conflict with any other term or condition in this agreement, this section will supersede such other term or condition.
13.1 Pre-release Software Additional Terms.
If the Software is pre-commercial release or beta software (“Pre-release Software”), then this Section applies. The Pre-release Software is a pre-release version, does not represent final product from ShiVaTech, and may contain bugs, errors and other problems that could cause system or other failures and data loss. ShiVaTech may never commercially release the Pre-release Software. You will return or destroy all copies of Pre-release Software upon request by ShiVaTech or upon ShiVaTech’s commercial release of such Software. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 and 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN PRE-RELEASE SOFTWARE.
13.2 Tryout, Product Sampler, NFR, Additional Terms.
If the Software is tryout, starter, product sampler, or NFR software (“Tryout Software”), then the following Section applies. The Tryout Software may contain limited functionality and is to be used for demonstration and evaluation purposes only and not for your commercial purposes. YOUR USE OF TRYOUT SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 and 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN TRYOUT SOFTWARE.
13.3 Time Out Software.
If the Software is a timeout version then it will cease operations after a designated period of time or number of launches following installation. The licence hereunder will terminate after such period or number of launches unless extended by ShiVaTech upon your acquisition of a full retail licence. ACCESS TO ANY FILES OR OUTPUT CREATED WITH SUCH SOFTWARE OR ANY PRODUCT ASSOCIATED WITH SUCH SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
13.4 Educational Software Product.
If the Software accompanying this agreement is Educational Software Product (Software manufactured and distributed for use by only Educational End Users), you are not entitled to use the Software unless you qualify in your jurisdiction as an Educational End User.
13.5 Online Services.
13.5.1 The Software may rely upon or facilitate your access to websites maintained by ShiVaTech or its affiliates or third parties offering goods, information, software and services (“Online Services”). Your access to and use of any website is governed by the terms, conditions, disclaimers and notices found on such site. ShiVaTech may at any time, for any reason, modify or discontinue the availability of any website and Online Services.
13.5.2 ShiVaTech does not control, endorse or accept responsibility for websites or Online Services offered by third parties. Any dealings between you and any third party in connection with a website or Online Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party.
13.5.3 EXCEPT AS EXPRESSLY AGREED BY ShiVaTech OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, YOUR USE OF WEBSITES AND ONLINE SERVICES IS AT YOUR OWN RISK. PLEASE SEE SECTIONS 7 AND 8 FOR WARRANTY AND LIABILITY LIMITATIONS WHICH GOVERN WEBSITES AND ONLINE SERVICES.
If you have any questions regarding this agreement or if you wish to request any information from ShiVaTech please use the address and contact information included with this product to contact ShiVaTech.