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NewBay LifeCache Connect End User License Agreement

IMPORTANT PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING THE LIFECACHE CONNECT SDK

This NewBay End-User License Agreement is a legal agreement between you (either an individual or a legal person and referred to in this Agreement as “You” or the “Licensee”) and NewBay Software Limited, an Irish company having its registered office at The Academy, 42 Pearse Street, Dublin 2, Ireland (“NewBay” or the “Licensor”) for the Software Product (“EULA”).

By installing, downloading, copying or otherwise using the NewBay LifeCache Connect software development kit which may include associated software components, media, printed materials and "online" or electronic documentation ("Software Product"), You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, do not install, download or use the Software Product.

1. GRANT
1.1 Subject to the terms and conditions of this EULA, Licensor grants You and You accept a royalty-free, personal, non-transferable, non-assignable, non-exclusive, world-wide, limited license to use the Software Product for the sole purpose of developing and testing Your software applications for Android (version 2.1 and greater) devices.
1.2 You may also make such copies of the Software Product as may be necessary for backup and archival purposes.

2. LIMITATIONS.
2.1 The Software Product is protected by copyright and other intellectual property rights. It may include other third party software or materials. Without limiting any of Your obligations under this EULA, open source licences (such as the Apache License Version 2.0, the CDDL and BSD licence) and/or other terms and conditions approved by the Open Source Initiative shall apply in addition to and/or instead of this EULA in relation to such third party software or materials. (You may obtain copies of these and other open source licences at http://www.opensource.org/licenses/alphabetical.) If there is any contradiction between the terms of this EULA and the terms of such licences, then the terms of relevant licence shall take precedence. You represent and warrant that You will act in accordance with any restrictions and obligations set out in such licences or terms and conditions. You further warrant that You understand that it is Your sole responsibility to acquire any such additional required licences or permissions.
2.2 You agree not to;

1. remove or alter any copyright notices on any and all copies of the Software Product;
2. distribute, export, sublicense, rent, loan, lease, disclose, sell, market, re-license or otherwise transfer the Software Product to any third party;
3. reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

2.3 You agree to comply with all applicable laws regarding the use and installation of the Software Product including but without limitation, obtaining and maintaining any import or export licenses required for using or installing the Software Product.

3. SUPPORT SERVICES
3.1 NewBay may, upon Your request, provide You with support services related to the Software Product subject to payment of a fee ("Support Services"). Any supplemental software code and materials provided to You as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.

4. TERMINATION
4.1 Without prejudice to any other rights, NewBay may, without liability to You, terminate this EULA at any time, if You fail to comply with any term or condition of this EULA. In such event, You agree to immediately destroy all copies of the Software Product in your possession and if requested by NewBay, certify to it that You have done so.

5. COPYRIGHT
5.1 There are no implied licences or other implied rights granted under this EULA and all rights, save for those expressly granted in this EULA, shall remain with NewBay or its licensors.
5.2 All right, title and interest including but not limited to copyright and all other intellectual property rights, in and to the Software Product shall vest in NewBay or its licensors.
5.3 All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants You no rights to use such content.

6. NO WARRANTIES
6.1 The Software Product is provided on an 'as is' and ‘with all faults’ basis and You expressly understand and acknowledge that Your use of the Software Product is at Your own risk.
6.2 In particular, neither NewBay nor its licensors make any representation or warranty of any kind, whether express or implied, including;

1. that the Software Product is of merchantable quality or fit for any particular purpose;
2. that the Software Product will not infringe any third party patents, copyrights, trademarks or any other rights;
3. that the functions and solutions contained in or outlined in the Software Product will meet Your requirements, operate securely, in an uninterrupted manner or free from error;
4. that any information, text, graphics, links or other content obtained by You as a result of Your use of the Software Product will be accurate, complete or reliable; or
5. that any defects in the operation of or functionality of the Software Product will be corrected.

6.3 Any material downloaded or otherwise obtained through the use of the Software Product is obtained at Your own discretion and risk and You will be solely responsible for any damage to Your computer system or other device or loss of data that results from the download of such material.

7. LIMITATION OF LIABILITY
7.1 Subject to sections 7.2 and 7.3, the maximum liability of NewBay and its affiliates under or in connection with this EULA, whether based on contract, tort (including negligence), statutory duty or otherwise shall be limited to €5.00.
7.2 Subject to sections 7.1 and 7.3,You expressly understand and agree that in no event shall NewBay or its affiliates be liable to You or to any third party, whether in contract, in tort (including negligence), under any statute or otherwise for or in respect of any;

1. loss of profits, savings or anticipated savings;
2. loss of business, revenue or sales;
3. business interruption, loss or corruption of data;
4. loss of goodwill;
5. any direct, indirect, incidental, special or consequential loss of whatever nature;

howsoever caused, whether or not reasonably foreseeable, reasonably contemplated, or actually contemplated by either party. 7.3 Nothing in these terms, including sections 6 and 7, shall exclude or limit NewBay’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law. Only the limitations which are lawful in Your jurisdiction will apply to You and NewBay’s liability will be limited to the maximum extent permitted by law.

8. CONFIDENTIALITY
8.1 The Licensee shall treat as confidential the Software Product and shall not disclose the Software Product to any third party without the Licensor’s consent. The Software Product shall only be disclosed to personnel on a need to know basis and the Licensee shall be obliged to procure that all such persons are aware of and comply with the obligation of confidentiality contained in this section 8. The Licensee shall take reasonable measures to prevent the disclosure and unauthorised use of the Software Product but no less stringent measures than those used to protect its own information of like importance. Notwithstanding the foregoing, the obligation of confidentiality with regard to the Software Product shall not apply to information contained in the Software Product that (i) becomes publicly available without the fault of the Licensee; (ii) is rightfully obtained by the Licensee from a third party with the right to transfer such information; (iii) is independently developed by the Licensee, without reference to the Software Product; (iv) is disclosed pursuant to the order or requirement of a court, governmental authority or administrative body with relevant authority, provided, however that the Licensee shall provide prompt notice of such request and shall use its reasonable efforts to obtain a protective order or otherwise prevent public disclosure of all or a part of the Software Product.
8.2 The Licensee’s obligations under this section 8 shall survive for a period of 5 years after termination of this EULA.

9. GOVERNING LAW AND JURISDICTION
9.1 This EULA and any dispute which may arise in connection with it shall be governed in all respects by Irish law and shall be subject to the exclusive jurisdiction of the Irish Courts.

10. GENERAL
10.1 This EULA represents the entire agreement concerning the Software Product between You and NewBay and supersedes any prior proposal, representation, agreement or understanding between You and the Licensor in relation to this Software Product. In the event that any provision of this EULA shall be unenforceable or invalid under any applicable law or so held by applicable court decision, such unenforceablility or invalidity shall not render this EULA unenforceable as a whole.
10.2 This EULA is for the sole benefit of the parties hereto and nothing herein, express or implied, shall give or be construed to give any rights hereunder to any other person, including without limitation, any subcontractors, sub-vendors, or anybody designated as a reseller.
10.3 The relationship of established by this EULA between You and NewBay is that of independent entities and nothing contained in this EULA shall be construed to create a partnership, joint venture or other agency relationship between You and NewBay. Under no circumstances shall any of Your employees be deemed to be NewBay employees or, NewBay employees be deemed to be Your employees for any purpose.
10.4 The rights of NewBay will not be prejudiced or restricted by any indulgence or forbearance extended to the Licensee, and no waiver by NewBay in respect of any breach or failure or delay in exercising its rights or remedy will operate as a waiver in respect of that breach, any subsequent breach or the exercise of any other right or remedy by NewBay.
10.5 Neither party to this EULA shall have the right to assign it, or the right to assign any of its rights, benefits or obligations under the EULA, without the prior written consent of the other. NewBay shall, however, be entitled to assign this EULA, or its rights under it to an affiliate upon written notice to the Licensee.
10.6 All notices, demands and requests under this EULA shall be in writing and delivered by post (by hand or by registered pre-paid post) or by email accompanied with a read receipt notice to the address of the Licensor as set out above, or the address of the Licensee as provided to NewBay by You, as applicable. Such notice shall be deemed to be received, if delivered by post, on the date delivered by hand or 48 hours after posting by registered post and if delivered by email, on receipt of the received notice from the recipient.
10.7 NewBay may from time to time amend this EULA for valid commercial, operational or technical reasons. Such amendments shall be published in any revised version of the EULA available on the NewBay website and applicable between You and NewBay from the date of such publication. You should check the website regularly for such revised EULAs. If You do not agree to such revised terms, please stop using the Software Product. Otherwise NewBay will treat Your use of the Software Product as Your acceptance of the revised EULA.