TERMS AND CONDITIONS
END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is a legally enforceable contract between you (either an individual or an entity) and Zaka, Inc. (“Zaka”) regarding your use of Zaka’s software accompanying or provided under this Agreement (“Consumer App”).
Zaka offers and maintains a software-as-a-service that allows merchants to efficiently track, manage and monetize consumer sentiment about, and referrals to, such merchants’ business (the “Service”). ‘The Service uses two separate but interactive downloadable software applications, which allow merchants and consumers to exchange information through Zaka hosted services. The software made available under this Agreement is downloadable by the consumers that interacts with the software downloaded by merchants patronized, referred or reviewed by the consumers (the “Merchant App”).
1. Grant of License. Subject to the terms and conditions of this Agreement, Zaka grants you a non-exclusive, non-sublicensable, non-assignable limited right and license to use the Consumer App in the following manner: if the Consumer App is installed on a mobile device that you purchased, only to use as installed on such mobile device.
2. Ownership. You acknowledge that the Consumer App is the intellectual property of, and is owned by, Zaka and its licensors. The structure, sequence and organization, algorithms and programming techniques of the Consumer App are the valuable trade secrets and confidential information of Zaka and its licensors. Consumer App is protected by patents and copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is used. You acknowledge that Zaka, or its licensors, retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Consumer App. You will take no actions, which adversely affect Zaka’s intellectual property rights in the Consumer App. This Agreement is a license and not an agreement for sale. No title to, or ownership of, the Consumer App, or any intellectual property rights subsisting therein, is transferred to you.
3. Restrictions. Consumer App is licensed solely for your internal use as permitted above and any other use including for third parties is expressly prohibited. Zaka and its licensors reserve all rights not expressly granted to you in this Agreement. Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) make copies of the Consumer App except as expressly set forth in this Agreement, or (ii) disassemble, decompile, reverse engineer, or translate any part of the Consumer App, or otherwise attempt to reconstruct or discover the source code of the Consumer App, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or (iii) modify or create derivative works based upon the Consumer App, or (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Consumer App, or (v) rent, lease, lend, or use the Consumer App, or any part thereof, for timesharing or bureau use, or (vi) allow a third party to copy, access, or use the Software (except as expressly provided in this Agreement), or (vi) alter or remove any copyright, trademark or other proprietary notice which may appear on the Consumer App, or (vii) take any action that would cause the Consumer App to be placed in the public domain or become subject to open source license agreement.
4. Disclaimer of Warranties. CONSUMER APP IS PROVIDED “AS IS,” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Zaka makes no warranty regarding the Consumer App or the suitability, functionality or operation of the Consumer App. Without limitation, ZAKA does not warrant the performance level, results or capacity of the Consumer App when operated on any hardware or in conjunction with any third party programs or processes. Zaka does not warrant that the functions contained in the Consumer App will meet your requirements or that the operation of the Consumer App will be uninterrupted or error-free. You assume the responsibility for selection of the Consumer App to achieve the results intended and for the installation, use, and results obtained from the use of the Consumer App.
5. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL ZAKA OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE CONSUMER APP OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ZAKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWSOEVER CAUSED OR ARISING AND REGARDLESS OF LEGAL THEORY OR FORESEEABILITY. ZAKA’S ENTIRE LIABILITY FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED TEN US DOLLARS ($10.00). Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, Zaka’s liability shall be limited to the greatest extent permitted by law.
6. Deals and Campaigns. Merchants will send and friends will refer certain relevant information regarding “deals” or “campaigns” to you. You understand and agree that Zaka is not liable for any liability, damages, or losses that may result from any interaction or transaction you may have with any merchant we may refer to you
7. Interactions and Referrals. As part of the Service, you understand and agree that in order to effectively provide the Service to you, all interactions, including referrals to your friends, through the app are tracked, stored, and used to generate relevant analytics for merchants using the Merchant App. Such interactions, including referrals, will include personalized information included in your Zaka profile, such as your name and profile picture, but only if you accept such a referral to a merchant. Accepted referrals cannot be done on an anonymized basis. Upon receiving notice of a referral, a merchant will not receive any information in your Zaka profile. Upon your acceptance of a referral, information contained in your Zaka profile will be shared with the merchant.
8. Basis of Bargain. YOU ACKNOWLEDGE THAT ZAKA HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. No Support. Except as expressly required by applicable law, nothing in this Agreement entitles you to any support, maintenance or new versions of the Consumer App.
10. Updates. If provided, this Agreement will govern any updates and upgrades to the Consumer App, unless such updates and upgrades are expressly provided under a separate license agreement. You may use such updates or upgrades only in conjunction with your then-existing Consumer App licensed under this Agreement. The Consumer App and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Consumer App to exceed the scope of your original license.
11. Third Party Software. Consumer App may contain components that are owned by third parties and licensed by Zaka. You acknowledge that some of these components may be licensed under the so-called open source licenses. Zaka may provide a list of such components for a particular version of the Consumer App upon your written request and the licenses under which these components are available. To the extent the terms of the licenses applicable to such components prohibit any of the restrictions in this Agreement, such restrictions will not apply to such components. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any open source license. YOU ACKNOWLEDGE THAT ZAKA MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY SUCH COMPONENT.
12. No Assignment. You may not transfer or assign the Consumer App or this Agreement to another party without the prior written consent of Zaka. If such consent is given and you transfer or assign the Consumer App and/or this Agreement, then you must at the same time either transfer all copies of the Consumer App to the same party or destroy any such materials not transferred. Except as set forth above, you may not transfer or assign the Consumer App or your rights under this Agreement.
13. Term and Termination: This Agreement is effective for the useful life of the Consumer App. However, this Agreement and license granted hereunder will immediately terminate, without notice, if you fail to comply with any term or condition of this Agreement. Upon termination, you must delete or destroy all copies of the Consumer App in your possession. You may terminate this Agreement at any time by destroying the Consumer App together with all copies and merged portions in any form.
14. Export Restrictions. You agree that the Consumer App may not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Regulations, or any other export laws, restrictions or regulations.
15. United States Government Legend. All technical data and computer software is commercial in nature and developed solely at private expense. Use, duplication or disclosure of the Consumer App by the U.S. Government is subject to “Restricted Rights”, as that term is defined in the Department of Defense (“DOD”) Supplement to the Federal Acquisition Regulations (“DFARS”) in paragraph 252.227-7013(c)(1)(ii) if to the DOD, or, if the Software is supplied to any unit or agency of the U.S. Government other than DOD, the Government’s rights in the Software shall be as defined in subparagraphs (c)(1) or (c)(2) of FAR 52.227-19, Commercial Computer Software -Restricted Rights; or FAR 52.227-14, Rights in General Data Alternative III, as applicable. You agree not to remove or deface any portion of any legend provided on any licensed program or documentation delivered to you under this Agreement.
16. Governing Law; Venue. This Agreement shall be governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents and by the laws of the United States. You agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this License Agreement. Each party, to the extent permitted by applicable law, (i) hereby irrevocably submits itself to and consents to the exclusive jurisdiction of the United States District Court for the Central District of California or the Superior Court of Orange County, California for the purposes of any suit, action or other proceeding in connection with any controversy, claim or dispute relating to this Agreement or to enforce a resolution, settlement, order or award made pursuant hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
17. Severability. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore.
18. Entire Agreement. This Agreement sets forth the entire understanding and agreement between you and Zaka, supersedes all prior agreements, whether written or oral, with respect to the Software, and may be amended only in a writing signed by both parties.
19. Waiver. Failure or delay on the part of Zaka to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of Zaka.
20. No Strict Interpretation. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this Agreement.