END USER LICENSE AGREEMENT
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS APPLICATION ("YOU" OR "CUSTOMER") AND NEXT WAVE MULTIMEDIA PVT. LTD. (hereinafter referred to as NEXTWAVE OR WE/OUR/US). BY INSTALLING AND USING THE APPLICATION, YOU AGREE TO ACCEPT THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE APPLICATION. BY INSTALLING AND/OR USING THE APPLICATION, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE APPLICATION 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 AND/OR USE THE APPLICATION.
1.1. For the purposes of interpretation, the following terms shall have the meaning assigned to them herein:
a. ‘You’ refers to any person, whether natural or juristic, who uses the Licensed Product(s) of Nextwave by accepting the Terms and Conditions
b. ‘Party’ shall mean either You or Nextwave based upon the context in which it is used and ‘Parties’ shall mean both You and Nextwave based upon the context in which it is used.
c. ‘Service(s)’ shall include all such services, operations and functionality of the Licensed Product(s).
d. ‘License Key’ refers to the activation/promotion code provided by Nextwave which shall be specificed to You when the Product is purchased by You for installation on Your system.
e. ‘Licensed Product(s)’ shall mean the Application, website, platform, portals, data, instructions and any other materials including but not limited to clip-art, pictures, animations and data of like nature provided to You by Nextwave to provide Service(s), the license for use of which is granted under this Terms and Conditions.
f. ‘Intellectual Property’ shall mean any invention, creation, work, design, Confidential Information, Product(s) and so on which have been acquired, are in the process of being acquired or capable of being acquired as patents, copyrights, trademarks, trade secrets or other types of Intellectual Property.
g. ‘Work(s)’ shall mean the literary, dramatic or artistic works, sound recording or a cinematograph film including but not limited to comic strips, images, presentations, animations and other works of like nature, created by You using the Licensed Product(s) and Service(s).
h. ‘Confidential information’ shall mean any electronic, written or oral information, including and not limited to the Your transaction details, business details, Your information, technical and scientific information, research related information and so on, which is disclosed by You to Nextwave.
‘Confidential Information’ shall not include:
i. The information which is in the public domain or comes into the public domain otherwise than by disclosure or default by Nextwave; or
ii. The information which was or is lawfully obtained or available from a third party who was lawfully in possession of the same and free to disclose it; or
iii. the information, which was already known to Nextwave and has been received from a source other than You.
2. Licensed Rights
2.3. On acquring of the license or purchase of the license as the case may be, associated with the Licensed Product(s), upon its installation will have a nonexclusive right to:
2.3.1. Installation of the License Key for the Licensed Product(s) on Your computer, tablet, mobile and other personal entertainment device(s);
2.4. If you obtain an evaluation license for the Licensed Product(s), you will have the same license rights as described above except that you may use the Licensed Product(s) only for the purpose of evaluating it and deciding whether to purchase a license to use the Licensed Product(s).
3.1. Nextwave hereby agrees that it will-
(i) use Confidential Information only for the purpose of providing Service(s) associated with Licensed Product(s) to You and for no other purpose; and
(ii) keep the Confidential Information confidential.
3.2. Nextwave will not disclose any Confidential Information to any third party, including and not limited to the companies or entities, which form part of the same group of companies as that of Nextwave.
3.3. Nextwave will not disclose any Confidential Information to any third party, except to authorized employees or other agents of Nextwave who need to have access to the Confidential Information for the purpose of carrying out their duties in connection with the Service(s) associated with the Licensed Product(s). Nextwave further endeavours to ensure that such employees, agents and consultants will be bound by instruments of confidentiality, which are at least as stringent as this Terms and Conditions and such instruments survive the termination of the employment, agency or consultancy agreement;
3.4. You agree that Nextwave may disclose any and all Confidential Information pertaining to You including but not limited to Your account history, account use, etc. to any law enforcement agent when Nextwave is bound by any law or when such request is made by a Court without further consent or notification to the User.
4.1. Nextwave hereby grants You the rights to use the Licensed Product(s) and associated Service(s) in accordance with the terms described herein below. The license is granted only for the following purposes:
i. To provide Service(s) by Nextwave with respect to the Licensed Product(s);
ii. To provide Service(s) by Nextwave through the Licensed Product(s);
iii. To install and maintain a copy of the Licensed Product(s) on Your system/device(s) during the subsistence of the License; and
iv. to use the Licensed Product(s) and Service(s) to create Work(s);
The License Product(s) and Service(s) shall not be used for any other purpose whatsoever.
4.2. The license granted hereby is non-exclusive and non-transferable. You shall not copy, modify, distribute or deal with it in a manner that is inconsistent with the rights of Nextwave. The license granted hereunder will enable You to only to use the Licensed Product(s) in connection with the purposes for which the Licensed Product(s) has been provided by Nextwave.
4.3. You shall not attempt to Reverse Engineer, Decompile or Descramble or use the Licensed Product and/or Service(s) in any manner to understand the process, structure or working of the Service(s) associated with the Licensed Product(s).
4.4. The License provided hereunder shall not extend to provision of Service(s) associated with the Licensed Product(s) to third parties by You. Nothing in this Terms and Conditions shall authorise You to provide any service(s) to third parties on the basis of the Service(s) associated with the Licensed Product(s) of Nextwave without the prior written consent of Nextwave.
4.5. The License provided hereunder in association with the License Key shall not be disclosed or transferred to any other individual other than You without prior written permission from Nextwave.
4.6. You hereby grant an unconditional, non-exclusive, royalty free license to Nextwave to use all its information and other data provided on the Licensed Product and associated Service(s) of Nextwave for the purposes of enabling Nextwave to fulfil its obligations.
4.7. Notwithstanding anything contained hereunder or under any other document, whether executed in the past, present or future, the License granted hereunder and Nextwave’s ownership on the Licensed Product(s) and associated Service(s) shall not, be in any way deemed to be affected or altered.
4.8. The License Key provided by Nextwave shall identify You to whom the License is granted under this Terms and Conditions and the same cannot be transferred or used by any other individual other than You.
4.9. You must follow the directions provided by Nextwave’s Support Center to resolve technical problems and You must follow the operating instructions and procedures for the Licensed Product(s) as specified in the documentation or provided by Nextwave and You must notify Nextwave of any error or other problem in the Licensed Product(s) using Nextwave’s current problem reporting procedure.
4.10. The Licensed Product(s) may communicate with Nextwave’s servers for the purpose of providing Application updates, detecting Application piracy and verifying that you are using the Licensed Product(s) in conformity with the applicable License Key for such Licensed Product(s). Nextwave will use information gathered in connection with this process to deliver Application updates and pursue Application pirates and infringers
5. User Content
5.1. Nextwave may make available the ability to post Your Work in the form of profiles, photos, videos, blogs, forum messages and comments and emails to other Users.
5.2. You have permission to publish and/or make available to others, the Work(s) created by you, on our website, in our application, portal and/or other public platforms including social networking platforms, unless such permission is otherwise specifically declined by Nextwave.
5.3. You are solely responsible for any and all Work You post.
5.4. By posting Work to our portal, platform or website, You automatically grant, to Us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide right (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Work for any purpose on or in connection with our Services, to prepare derivativatives of, or incorporate into other works, such Work including without limitation, the text, scripts, graphics, photos, interactive features and the like and any trademarks, service marks and logos contained therein, and to grant and authorize sublicenses of the foregoing.
5.5. You shall not use the Licensed Product(s) and Service(s) to create any Work which contains nudity or is libelous, defamatory, obscene, pornographic, profane, sexually explicit, abusive or which otherwise violates any law, rule or regulation. You agree not to use vulgar, abusive or hateful language. You acknowledge that any Submissions (e.g. site questions, feedback) may be reproduced, published, transmitted and displayed by Nextwave in any manner.
5.6. While we do not and cannot review all Work submitted by You of our Services or Content, and are not responsible for the content of any of this material, Nextwave reserves the right to delete, move or edit Work that Nextwave, in its sole discretion, deem is in violation of the law (including trademark and copyright law), or these terms and conditions, or is abusive, defamatory, obscene, pornographic or otherwise unacceptable in the sole discretion of Nextwave.
5.7. In connection with User Submissions, you further agree that you will not:
i. submit material that is copyrighted, protected, owned or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Nextwave all of the license rights granted herein;
ii. publish falsehoods or misrepresentations that could damage Nextwave or any third party;
iii. post advertisements or solicitations of business;
5.8. Nextwave reserves the right to terminate a User account if in its sole discretion, it is deemed that User has violated the terms and conditions of this agreement.
6. Accuracy of Information
6.1. You shall be responsible for the correctness and accuracy of information provided by You to Nextwave. You shall provide correct and accurate information to Nextwave at all times and shall update the same regularly.
6.2. Nextwave shall reserve the right to discontinue the Service(s) with respect to accounts with false or inaccurate information without any notice to You.
7. Communication by Nextwave
7.1. You understand that it is important for Nextwave to keep You updated about the latest information with respect to the Licensed Product(s), associated Service(s) and other information. You hereby expressly consents and authorises Nextwave to make any and all communications by all possible modes of communication.
8. Use of Beta Service(s)
8.1. Nextwave may provide certain Licensed Product(s) and associated Service(s) as closed or open Beta Service(s) for trial and test purposes. Nextwave shall have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services.
8.2. You agree that Nextwave will be the sole judge of the success of such Beta Service(s) and Nextwave shall hold back/discontinue the Beta Service(s) at its sole discretion at any time without notice to You.
8.4. You shall not attempt to Reverse Engineer, Decompile or Descramble or use the Beta Service(s) in any manner to understand the process, structure or working of the Service(s).
8.5. You agree that Company will not be liable to You or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Service(s) for any reason.
9. Data Ownership
9.1. Pre-existing Data: You acknowledge that, the Licensed Product(s), Service(s), Application and related processes, instructions, methods, and techniques, art works, sounds, animations and other properties of like nature that have been previously developed by Nextwave (collectively called the “Pre-existing Data”) and that same shall remain the sole and exclusive property of Nextwave.
9.1.1. Your Data: Your information, or any derivatives thereof, inserted by you in any of Nextwave’s Service(s), Licensed Product(s) or repository shall be and remain the sole and exclusive property of You. You hereby grant a license on Your Data to Nextwave for the sole and exclusive purpose of providing the Service(s) associated with the Licensed Product(s), which License shall include the rights to store, record, transmit, maintain, and display Your Data to the fullest extent necessary in the provisioning of the Service(s) associate with the Licensed Product(s). It shall be Your sole duty to take regular backups of the Your Data. Nextwave makes no warranty of whatsoever nature on the availability of the Your Data after deletion of account or discontinuation of Service(s) by expiry or termination.
9.2. No License: Except as expressly set forth under this Agreement, no license is granted by either Party to the other with respect the Confidential Information, Pre-existing Data or Your Data. Nothing in this Terms and Conditions shall be construed to grant to either Party any ownership or other interest, in the Confidential Information, Pre-existing Data, or Your Data, except as may be provided under a license specifically applicable to such Confidential Information, Pre-existing Data, or Your Data.
9.3. The provisions of this Section shall survive the termination of this Terms and Conditions.
10. Your Representations and Warranties
10.1. You represent and warrant to Nextwave that-
10.1.1. You have full power to agree to this Terms and Conditions,
10.1.2. You have the capability to perform Your obligations under this Terms and Conditions and that You are not under any kind of obligation or encumbrance that prevents the performance of obligations hereunder;
10.1.3. You will not use the Licensed Product(s) and associated Service(s) of Nextwave for any illegal purpose or for any purpose not contemplated hereunder by the parties.
11. Disclaimer of Warranties
11.1. YOU ARE AWARE THAT THE SERVICE(S) OF NEXTWAVE IS NOT IMMUNE FROM RISKS ARISING FROM FACTORS INCLUDING BUT NOT LIMITED TO AVAILABILITY, INDUSTRY AND BUSINESS FLUCTUATIONS, APPLICATION AND OTHER FACTORS. YOU HEREBY EXPRESSLY AGREE THAT USE OF THE SERVICE(S) IS AT YOUR SOLE RISK. THE SERVICE(S) IS PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. NEXTWAVE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION. NEXTWAVE MAKES NO WARRANTY THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGES, LOSS OR HARM THAT MAY BE CAUSED TO THE COMPUTER SYSTEMS, MOBILES, SERVERS, OR ANY OTHER HARDWARE/APPLICATION DEVICES DUE TO THE USE OF COMPANY’S SERVICE(S). NOTHING IN THIS TERMS AND CONDITIONS OR IN ANY OTHER COMMUNICATION, WHETHER WRITTEN OR ORAL, MADE BY NEXTWAVE OR ITS REPRESENTATIVES, SHALL CONSTITUTE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS AND CONDITIONS.
12. Term and Termination
12.1. Nextwave may terminate the License if-
i. The User uses the License for illegal purpose or for purposes other than those contemplated hereunder.
ii. Except in cases of paid subscription, the Services at anytime, without assigning any reason and notice; and
iii. In case of a paid subscription, without assigning any reason, upon a notice of at least 30 days to the Subscriber.
12.2. Provisions relating to Intellectual Property and Confidentiality shall survive the expiration or termination of the Agreement.
13. Intellectual Property
13.1. Each Party acknowledges that any Intellectual Property of a Party existing prior to the Commencement of Service(s) associated with the Licensed Product(s) shall remain the exclusive property of such Party. Nothing under this Agreement shall give rise to transfer of any Intellectual Property in the Licensed Product(s) or associated Service(s) from Nextwave to You.
13.2. All rights over the Intellectual Property of the Licensed Product(s), Service(s) Work including without limitation, the text, scripts, graphics, photos, interactive features and the like and the trademarks, service marks and logos contained therein and any derivative Work created therefrom shall exclusively remain with that of Nextwave. Nothing in this Agreement shall be construed to effect transfer of any rights of whatsoever nature on the Licesned Product(s) or associated Service(s) of Nextwave.
14. Limitation Of Liability
14.1. Notwithstanding any other provision set forth herein, Nextwave shall not be liable for any indirect, special, and/or consequential damages, arising out of or in connection with the Service(s) associated with the Licensed Product(s); provided, however, that the foregoing limitation of liability shall not apply with respect to damages incurred as a result of the gross negligence or wilful misconduct of Nextwave.
14.2. In particular Nextwave shall not be liable for:
14.2.1. The nature of data that You provide on the Service(s) associated with the Licensed Product(s) and/or the nature of Your activities using the Service(s) associated with such Licensed Product(s);
14.2.2. any misrepresentation made by You on Nextwave’s Licensed Product(s) and associated Service(s);
14.2.3. violation of any third party rights of whatsoever nature in any manner by the User;
14.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEXTWAVE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE LICENSED PRODUCT(S) AND ASSOCIATED SERVICES OR USE OF THE SUCH SERVICE(S) OR PRODUCT(S) IN A MANNER AND FOR A PURPOSE OTHER THAN THOSE FOR WHICH THE LICENSE IS GRANTED, ANY LOSS OR DAMAGE ARISING OUT OF OR IN RELATION TO ACT OF GOD OR ACT OF THIRD PARTY THAT IS BEYOND THE CONTROL OF NEXTWAVE.
15.1. You agree to indemnify, defend and hold the Nextwave and its Affiliates (including all officers, directors, employees, contractors and agents of the foregoing) harmless from and against any and all damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses (collectively "Losses") arising out of, incident to, or resulting directly or indirectly from the use of the Licensed Product(s) and associated Service(s) of Nextwave in a manner inconsistent with this Terms and Conditions.
16. Law, Jurisdiction And Arbitration
16.1. Notwithstanding the location of Nextwave’s server or You, the construction of this Terms and Conditions shall be determined in accordance with the Indian Contract Act, 1872 and other laws in force in India and shall be subject to the exclusive jurisdiction of the Courts in Chennai.
16.2. All disputes arising under or in relation to this Agreement may be referred to arbitration before a sole arbitrator. If the Parties fail to agree on the appointment of a sole arbitrator within the time stipulated under the [Indian] Arbitration and Conciliation Act, 1996 (the “Act”) the Parties shall approach the competent Court under the Act for appointment of the Sole Arbitrator. The Arbitration proceedings shall be carried out in accordance with the Act and the Rules framed there under and the place of Arbitration shall be Chennai. The arbitration proceedings shall be conducted in English.
17.1. Should any part of this Terms and Conditions be declared illegal or unenforceable, the Parties shall co-operate in all the ways open to them to obtain substantially the same result or as much thereof as may be possible, including taking appropriate steps to amend, modify or alter this Agreement in the light of its objectives.
17.2. If any term or provision of this Terms and Conditions is hereafter declared by a final adjudication of any tribunal or court of competent jurisdiction to be illegal, such adjudication shall not alter the validity or enforceability of any other terms or provisions unless the terms and provisions declared (by any of the Parties) shall be one expressly defined as a condition precedent or as of the essence of this Terms and Conditions, or comprising an integral part of, or inseparable from the remainder of this Terms and Conditions.
18. Assignment And Modification
19. Force Majeure and Act of Third Parties
19.1. The performance of any part of this agreement by Nextwave shall be excused to the extent that such performance is hindered, delayed, or made impractical by flood, fire, war, or riot or any other cause beyond the reasonable control of Nextwave or act of any third party beyond the control of Nextwave including but not limited to hacking, data theft, unauthorised access to Your account, impersonation, fraud, misrepresentation and so on.
I have read and understood the Terms and Conditions and I hereby, out of my free will, unconditionally accept to be bound by the same.