PARADIGM SHIFT GROUP END-USER SOFTWARE AGREEMENT
This Software Agreement (“Agreement”) is between Licensee (either an individual or an entity), the End User, and PARADIGM SHIFT Japan KK, subsidiaries and its associated companies for which it may act as a distribution agent (“PARADIGM SHIFT”). The Agreement authorizes Licensee to use the Software specified in Clause 1 below, which may be stored on a CD-ROM, downloaded from PARADIGM SHIFT’s sites, or Servers, used as a hosted service or installed by qualified PARADIGM SHIFT installers on Licensee’s systems or from other sources under the terms and conditions set forth below. This is an agreement on end-user rights and not an agreement for sale. PARADIGM SHIFT continues to own the copy of the Software and the physical media contained in the sales package and any other copy that Licensee are authorized to make pursuant to this Agreement.
Read this Agreement carefully before accepting the installation, downloads, or using the Software. By providing a Purchase Order or any instrument agreeing to purchase and/or implement the Software, and/or using the Software, Licensee agrees to the terms and conditions of this Agreement. If Licensee does not agree to all of the terms and conditions of this Agreement, promptly contact us and we will cancel the installation and provide Licensee with a refund of the software portion of the payment within 30 days of purchase. After 30 days of purchase, there are no refunds. If Licensee does not agree with the terms and conditions, Licensee has to destroy or return the Software and accompanying documentation to PARADIGM SHIFT. LICENSEE AGREES THAT ITS USE OF THE SOFTWARE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. SOFTWARE.
As used in this Agreement, the term “Software” means, collectively: (i) the software product contained within the e-Leisure/e-Wellness suite of products currently SpaConnect, e-Club, SpaConnect-Lite, e-FrontDesk, e-Activity, e-Golf, Business Intelligence, Web Platform modules; developed, owned and supported by PARADIGM SHIFT (ii) all the contents of the disk(s), CD-ROM(s), electronic mail and its file attachments, or other media with which this Agreement is provided, including the object code form of the software delivered via a CD-ROM, electronic mail, or Web page (iii) digital images, stock photographs, clip art, or other artistic works, (iv) related explanatory written materials and any other possible documentation related thereto (“Documentation”); (v) fonts, (vi) logic and (vii) upgrades, modified versions, updates, additions, and copies of the Software (collectively “Updates”), if any, licensed to Licensee by PARADIGM SHIFT under this Agreement.
2. END USER RIGHTS AND USE.
PARADIGM SHIFT grants to Licensee non-exclusive, non-transferable end-user rights to install the Software on the local hard disk(s) or other permanent storage media of the number of licenses for Licensee’s computers/servers and use the Software limited to the number of licenses as specified in the separate license document.
3. LIMITATIONS ON END USER RIGHTS.
Licensee may not copy, distribute, or make derivative works of the Software except as follows:
a) Licensee may make one copy of the Software and Database and/or pertinent information on backup media as an archival backup copy; provided Licensee’s archival backup copy is not installed or used on any unauthorized computer unless Licensee is licensed to do so. Any other copies Licensee makes of the Software are in violation of this Agreement.
b) Licensee may not use, modify, translate, reproduce, or transfer the right to use the Software or copy the Software except as expressly provided in this Agreement.
c) Licensee may not resell, sublicense, rent, lease, or lend the Software.
d) Licensee may not reverse engineer, reverse compile, disassemble, or otherwise attempt to discover the source code of the Software (except to the extent that this restriction is expressly prohibited by law) or create derivative works based on the Software.
e) Unless stated otherwise in the Documentation, Licensee shall not display, modify, reproduce, or distribute portion of the Software. In the event that the Documentation allows Licensee to display the Stock Files, Licensee shall not distribute the any Files on any basis,
f) Licensee agrees that they shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which Licensee uses the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
4. COPYRIGHT.
The Software and all rights, without limitation including proprietary rights therein, are owned by PARADIGM SHIFT and/or its licensors and affiliates and are protected by international treaty provisions and all other applicable national laws of the country in which it is being used. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of PARADIGM SHIFT and/or its licensors and affiliates. Licensee must not copy the Software, except as set forth in clause 3 (Limitations on End-User Rights). Any copies which Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on the Software. If Licensee provides Paradigm Shift with comments or suggestions for the modification, correction, improvement, or enhancement of (a) the Software, (b) any Deliverables or Services, or (c) Paradigm Shift products that may embody such Confidential Information, then Licensee grants to Paradigm Shift a nonexclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense Paradigm Shift licensees and customers, under Licensee’s Intellectual Property, the right to use and disclose such comments or suggestions in any manner Paradigm Shift chooses and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, have sold, and otherwise dispose of Paradigm Shift’s and its sub-licensees’ products embodying such comments in any manner and via any media Paradigm Shift chooses, but without reference to the source of such comments and/or suggestions.
5. MULTIPLE ENVIRONMENT SOFTWARE / MULTIPLE LANGUAGE SOFTWARE / DUAL MEDIA SOFTWARE / MULTIPLE COPIES / UPDATES.
If the Software supports multiple platforms or languages, if Licensee receives the Software on multiple media, or if Licensee otherwise receives multiple copies of the Software, the number of computers on which all versions of the Software are installed shall be one server and based on the number of computers as per license. Licensee may not rent, lease, sublicense, lend, or transfer versions or copies of the Software Licensee does not use. If the Software is an Update to a previous version of the Software, Licensee must possess valid end-user rights to such a previous version in order to use the Update, and Licensee, unless otherwise specified by Licensor, may use the previous version for ninety (90) days after Licensee receives or downloads the Update in order to assist the Licensee in the transition to the Update. After such time Licensee no longer has a right to use the previous version, except for the sole purpose of enabling Licensee to install the Update.
6. COMMENCEMENT & TERMINATION.
This Agreement is effective from the first date Licensee gets access in any form to the Products and Services (known as initial engagement date). Licensee may terminate this Agreement at any time by permanently deleting, destroying, and returning, at its own costs, the Software, all backup copies, and all related materials provided by PARADIGM SHIFT. Licensee’s end-user rights automatically and immediately terminate without notice from PARADIGM SHIFT if it fails to comply with any provision of this Agreement. In such an event, Licensee must immediately delete, destroy, or return at Licensee’s own cost, the Software, all backup copies, and all related material to PARADIGM SHIFT.
Further, the currency of the software is dependent upon payment of an annual maintenance fee paid one year in advance or a monthly fee subscription payment which entitles Licensee to updates and general support, including bug-fixes, enhancements and general security fixes. The software remains time-bound and licenses expire on a periodical basis, a license key is generated periodically in order to ensure that software is able to be used.
PARADIGM SHIFT reserves all rights to change any part of the software with the right to change any part or all parts of the Graphical User Interface, Inner Workings and/or database structure or database engines at any time with the provision of a 30 day notice of availability of upgrade by PARADIGM SHIFT.
7. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARADIGM SHIFT, ITS LICENSORS OR AFFILIATES, NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER RIGHTS. THERE IS NO WARRANTY BY PARADIGM SHIFT OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.
8. NO OTHER OBLIGATIONS.
This Agreement creates no obligations on the part of PARADIGM SHIFT other than as specifically set forth herein.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PARADIGM SHIFT, ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF PARADIGM SHIFT OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES/STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, PARADIGM SHIFT, ITS EMPLOYEES OR LICENSORS OR AFFILIATES’ LIABILITY SHALL BE LIMITED TO U.S. $50. Nothing contained in this Agreement shall prejudice the statutory rights of any party dealing as a consumer. Nothing contained in this Agreement limits PARADIGM SHIFT’s liability to Licensee in the event of death or personal injury resulting from PARADIGM SHIFT’s negligence. PARADIGM SHIFT is acting on behalf of its employees and licensors or affiliates for the purpose of disclaiming, excluding, and/or restricting obligations, warranties, and liability as provided in this clause 9, but in no other respects and for no other purpose.
10. TECHNICAL SUPPORT.
PARADIGM SHIFT has no obligation to furnish Licensee with technical support unless an agreement is signed by both Licensee and PARADIGM SHIFT and an annual Maintenance Contract is paid in full and valid or in the case of subscribed services, that all subscription payments are confirmed by our associates as up to date. PARADIGM SHIFT will ensure that a full validated license code will be provided upon confirming a valid and paid-up subscription.
12. NOTICES.
All notices and return of the Software and Documentation should be delivered to the Address and details provided on Licensee’s maintenance contract document.
This Agreement is governed by the laws of Australia. All disputes arising from or relating to this Agreement shall be settled by a single arbitrator within Australia. The arbitration procedure shall take place in Australia in the English language. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified by a writing signed by an authorized officer of PARADIGM SHIFT, although PARADIGM SHIFT may vary the terms of this Agreement.
This is the entire agreement between PARADIGM SHIFT and Licensee relating to the Software, and it supersedes any prior representations, discussions, undertakings, end-user agreements, communications, or advertising relating to the Software.
PLEASE SUBMIT ANY ACCOMPANYING REGISTRATION FORMS TO RECEIVE REGISTRATION BENEFITS WHERE APPLICABLE