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IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF ACQUIRED BY OR FOR AN ENTITY, SUCH ENTITY) AND DIGONEX TECHNOLOGIES, INC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE.
BY SELECTING THE 'DOWNLOAD' OR 'INSTALL NOW' BUTTON AND USING THE SOFTWARE, YOU REPRESENT AND CONFIRM THAT, AS AN INDIVIDUAL, YOU ARE AT LEAST 18 YEARS OLD, OR OLDER IF SO REQUIRED IN YOUR JURISDICTION OR OTHER APPLICABLE LAWS, TO FORM A LEGALLY BINDING CONTRACT OR TO RECEIVE THE BENEFITS OR PERFORM YOUR OBLIGATIONS HEREUNDER. IF YOU ARE NOT 18 YEARS OLD (OR OLDER AS REQURIED), YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. BY SELECTING THE 'DOWNLOAD' OR 'INSTALL NOW' BUTTON AND USING THE SOFTWARE, YOU REPRESENT AND CONFIRM THAT, AS A REPRESENTATIVE OF YOUR COMPANY OR OTHER ENTITY, YOU HAVE THE AUTHORITY AND OTHER NECESSARY PERMISSIONS TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
THIS EULA PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING THE 'DOWNLOAD' OR 'INSTALL NOW' BUTTON AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL OR USE THE SOFTWARE.
1.1 "Digonex" means Digonex Technologies, Inc. and its licensors, if any.
1.2 "Software" means only the "Nabit" software product from Digonex, and its corresponding installer, executable, object, and library files, communication packets and protocols, documentation (including this EULA), associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to you.
2.1 Digonex grants you a non-exclusive, limited, revocable license solely to install and use the Software on a computer that has a legal copy of Windows 2000 or later (including Windows 2000, XP Home and Professional).
3.1 You may electronically copy the Software provided that the Software is packaged within the original installer provided by Digonex at http://www.getnabit.com or such other website or means by which Digonex distributes or otherwise makes available the Software. The Software may NOT be distributed in any form besides its installer, and in no cases may this EULA be separated from the software.
3.2 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form, or make copies of the Software except as expressly permitted or as required by applicable law.
3.3 If prohibitions against reverse engineering are not permissible under certain circumstances according to applicable law, then you may be permitted to reverse engineer the software solely for the purposes for which such prohibitions are not permissible. You may not reverse engineer the Software for commercial exploitation by you or any third party. If your enjoyment of the Software as permitted hereunder requires assistance which you believe requires reverse engineering, you agree to notify Digonex at licensing@digonex.com for such assistance.
3.4 You may not sell, rent, lease, or sublicense the Software. You may not transfer your license to the Software. This software is provided free of charge at http://www.getnabit.com. If you paid for the Software, please notify Digonex at licensing@digonex.com
3.5 You may not modify the Software or create derivative works based upon the Software. You may not create a new installer for the Software. Except with the express written consent of Digonex, you shall not bundle the Software with any other software product or functionality. If you wish to create a bundle which includes the Software, please contact Digonex at licensing@digonex.com.
3.6 You may not transfer the Software (in any form, including without limitation electronic, or a form stored in memory or loaded on a computer) outside of your country of citizenship.
3.7 In the event that you fail to comply with this EULA, your rights to use the Software automatically terminate, and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
3.8 You shall not use the Software to develop any software or other technology having the same or similar functionality as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Software.
3.9 You must accept any required updates to the Software, and to this EULA, or cease using the Software. The Software or Digonex will notify you if a required update is available.
3.10 Digonex reserves the right to discontinue the Software or any services provided to you or made available to you through the use of the Software.
3.11 You agree that Digonex may collect information gathered as part of the services provided to you through the Software, and only through the Software or registration for the Software. You agree Digonex may use this information solely to improve our products or to provide customized services or technologies to you. Digonex may disclose this information to others, but not in a form that personally identifies you, or a form which would reasonably allow others to identify you. Certain applicable laws may require Digonex to provide you information relating to or access to personal information collected from you, in which case you may contact Digonex at licensing@digonex.com or Digonex Technologies, Inc., 1 North Meridian Street, Suite 220, Indianapolis, Indiana, U.S.A. 46204. Our privacy policy is available at http://www.nabit.com/privacy.jsp
4.1 The foregoing license gives you a limited license to use the Software. Digonex and its suppliers retain all right, title and interest, including all copyright, trademark, patent and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this EULA, including federal and international copyrights, are reserved by Digonex and its suppliers.
4.2 DIGONEX and other trademarks contained in the Software are trademarks or registered trademarks of Digonex Technologies, Inc. in the United States and/or other countries. eBay is a registered trademark of eBay, Inc. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names or logos, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to, and you agree not to, use or otherwise exploit Digonex's or its licensors' names or any of their respective trademarks.
4.3 In consideration for your use of the Software, you agree that any and all modifications, suggestions, corrections, or improvements ("Improvements") you make or propose to the Software shall be owned by Digonex, and you hereby assign and agree to assign to Digonex all of your right, title, and interest in and to such Improvements, including all intellectual property rights therein and relating thereto.
4.4 Solely to the extent applicable law prohibits the assignment of Section 4.3, you hereby do and shall grant to Digonex an irrevocable, perpetual, exclusive, royalty-free fully paid-up license to use and otherwise exploit the Improvements.
4.5 You agree to, at Digonex's expense and sole option, execute and deliver any and all documents and other things to perfect Digonex's rights in such Improvements and intellectual property rights therein and relating thereto.
5.1 THE SOFTWARE IS PROVIDED TO YOU FREE OF CHARGE, AND ON AN "AS-IS" BASIS. DIGONEX PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE SOFTWARE.
5.2 SUBJECT TO SECTION 5.4, DIGONEX AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DIGONEX PROVIDES NO AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, TITLE, AND QUIET ENJOYMENT. DIGONEX DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE, VIRUS-FREE, OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
5.3 DIGONEX SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES.
5.4 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DOWNLOAD UNLESS APPLICABLE LAW IMPOSES A LONGER PERIOD IN WHICH CASE SUCH LONGER PERIOD SHALL APPLY.
5.5 YOU MAY HAVE ADDITIONAL RIGHTS AS A CONSUMER WHICH ARE UNAFFECTED BY THIS OR OTHER PROVISIONS OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS, OR MODIFIES ANY TERM OR WARRANTY IMPLIED BY LAW AND WHICH, BY APPLICABLE LAW MAY NOT BE SO EXCLUDED, RESTRICTED, OR MODIFIED.
5.6 DIGONEX SHALL NOT BE RESPONSIBILE FOR ANY ALTERATION OF THE SOFTWARE, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TOUSE WITH NON-RECOMMENDED HARDWARE CONFIGURATIONS, PLATFORMS OR OPERATING SYSTEMS.
5.7 This Agreement is the entire agreement between you and Digonex. No oral or written information or advice given by Digonex, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of any warranty provided herein.
6.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER DIGONEX NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS, INJURY, OR DAMAGES RELATING TO YOUR USE OF THE SOFTWARE.
6.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER DIGONEX NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, REMOTE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DIGONEX OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6.3 Some states or jurisdictions do not allow limitation or exclusion of liability for incidental or consequential damages or for death or personal injury such as may be caused directly by the negligence of Digonex, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
6.4 Without limiting the other exclusions or limitations of liability in this Agreement, to the extent allowed by applicable law, if such limitations or exclusions do not apply, you agree that Digonex's maximum liability under any and all theories, under this agreement or otherwise, relating to your use of the Software or otherwise, shall be limited in the aggregate to $5.
6.5 The foregoing limitation on liability in this Section 6 are intended to apply to all aspects of this EULA.
7.1 The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the agreement between Digonex and you and which you acknowledge and agree are fair and reasonable under the circumstances. Digonex would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of Digonex's licensors, successors, and assigns.
8.1 This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the US Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Digonex Technologies, Inc., 1 North Meridian Street, Suite 220, Indianapolis, Indiana 46204.
9.1 Part of the software embedded in this product is gSOAP software. Portions created by gSOAP are Copyright (C) 20012004 Robert A. van Engelen, Genivia, Inc. All Rights Reserved. THE SOFTWARE IN THIS PRODUCT WAS IN PART PROVIDED BY GENIVIA INC. AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL Robert A. van Engelen OR GENIVIA INC. BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.2 The Software does not contain any "spyware". The Software does not: (a) collect or report back to us any information about which sites you may visit on the Internet; (b) collect or "screen-scrape" any search queries or information that you provide to any other web sites; (c) serve pop-ups or pop-unders when you are on other websites; or (d) collect or report back to Digonex any data regarding your computer keystrokes or other data unrelated to the services the Software provides. If you believe you received spyware bundled with this product, please contact Digonex Technologies at licensing@digonex.com.
10.1 You acknowledge and agree that this Section 10 is not a warranty, does not create any obligations in Digonex, and that this Section 10 provides an explanation of some of the features of the Software for your information only. The Software accesses eBay through eBay APIs and remote protocols. Digonex, per the limitations of liability and disclaimers of warranty of sections 5 and 6 of this EULA, makes no representations or warranties regarding your access, or lack thereof, to eBay through the Software. Digonex, per the limitations of liability and disclaimers of warranty of sections 5 and 6, and other terms and conditions of this EULA, makes no representations or warranties regarding any auctions you may view through the Software.
10.2 You acknowledge and agree that the time remaining status displayed by the Software may vary from eBay official time depending on network conditions, your computer's clock, and other factors. You acknowledge and agree that the time remaining status displayed may be inaccurate. You acknowledge and agree, per the limitations of liability and disclaimers of warranty of sections 5 and 6 and other terms and conditions of this EULA, that Digonex shall not be responsible for any losses you may incur due to the time remaining being inaccurate or any other inaccuracies you may allege or discover.
10.3 You acknowledge and agree that the winning or losing status displayed by the Software may vary from the official eBay winning or losing status. You acknowledge and agree that for Dutch Auctions, the Software will always display "watching" and never winning or losing status. You acknowledge and agree, per the limitations of liability and disclaimers of warranty of sections 5 and 6 and other terms and conditions of this EULA, that Digonex shall not be responsible for any losses you may incur due to the winning or losing status being inaccurate.
11.1 This EULA shall be governed by the laws of the State of Indiana, U.S.A., without giving effect to principles of conflict of laws of any jurisdiction to the contrary. You hereby acknowledge that you are contracting with an Indiana Company, and that you expressly consent to the exclusive jurisdiction and venue of the state courts sitting in Marion County, Indiana, U.S.A. or the federal courts in the Southern District of Indiana to resolve any disputes arising under this EULA. You hereby waive any challenge to venue, including inconvenient forum.
11.2 You hereby agree to indemnify, defend, and hold harmless Digonex, its officers, directors, members, shareholders, agents, affiliates and employees from any claim, damage, or other expense, including reasonable attorneys fees, relating to your impermissible use of the Software, any violation of this Agreement, or any of your acts or omissions constituting willful misconduct.
12.1 This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Digonex to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
12.2 No agent or employee of Digonex is authorized to make any amendment to this EULA. You may have downloaded this from a third party website, but that third party may not make any amendment, subtraction, addition, or any other alteration to this EULA.
12.3 If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
13.1 All questions concerning this EULA shall be directed to: licensing@digonex.com or Digonex Technologies, Inc., 1 North Meridian Street, Suite 220, Indianapolis, Indiana 46204, Attention: General Counsel. Any legal notices regarding the Software should be sent via certified mail to the preceding physical address.
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