End User License Agreement

In this End User License Agreement “Noble Samurai” or “We” means Noble Samurai Pty Ltd (ACN 136 379 167).

This End User License Agreement is a legal agreement between You and Noble Samurai. Permission to use Scarcity Samurai is conditional upon You agreeing to the terms set out below. By clicking on the accept button You will be deemed to have accepted this Agreement. By purchasing, downloading, installing, using or otherwise accessing the Scarcity Samurai Software You are also agreeing to be bound by this Agreement. If You do not agree to all of the terms and conditions of this Agreement then You are not permitted to purchase, download, install or use the Scarcity Samurai Software.

1      Definitions

Agreement: this End User License Agreement, as may be renewed and/or amended from time to time.

Unlimited License: the license which enables You to use the Scarcity Samurai Software on unlimited WordPress Installs provided that each WordPress Install using the Scarcity Samurai Software has had substantive human effort undertaken by You on the WordPress Install and that each WordPress Install using the Scarcity Samurai Software is not being used on a WordPress Install for the primary purpose of providing a Scarcity Samurai Software License to a third party.  The Unlimited License hereby expressly excludes the Scarcity Samurai Software being used as part of a hosting bundle or other mass production of sites using the Scarcity Samurai Software.

IP Rights: means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights.

Noble Samurai Promotional Materials: any and all trademarks, names, signs, logos, banners, and any other materials in whatever form owned and/or used by Noble Samurai for the promotion of its company, its products and activities.

Noble Samurai Software: the software distributed by Noble Samurai for internet marketing research and website promotion purposes including but not limited to Market Samurai, Scarcity Samurai, Domain Samurai and Article Samurai, as well as any future versions, improvements, developments, programming fixes, updates and upgrades

Scarcity Samurai Software: the Scarcity Samurai software distributed by Noble Samurai for website promotion purposes as well as any future versions, improvements, developments, programming fixes, updates and upgrades.

Limited Site License: the license which enables You to use the Scarcity Samurai Software on a limited number of WordPress Installs only.

WordPress Install: an installation of the WordPress blogging software accessible at a given site URL (WP_SITEURL or related settings). The Scarcity Samurai Software may canonicalize the site URL for the purpose of determining whether two URLs are part of the same WordPress Install. If an installation is accessible under multiple site URLs then each URL is considered a separate installation if they canonicalize to different values.

You: You, the end user of the Scarcity Samurai Software, either as an individual or an entity, also used in the form “Your” where applicable.

2      License and Restrictions

2.1 License: Subject to the terms and conditions of this Agreement, Noble Samurai hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable, license to download, install and use the Scarcity Samurai Software in accordance with either the Unlimited Site License or the Standard License. Noble Samurai Software may be used for commercial purposes. Noble Samurai may offer a free of charge license to download a particular product from Noble Samurai Software either for a limited or unlimited time, or may charge a license fee.

2.2(a) No Granting of Rights to Third Parties: You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Scarcity Samurai Software either in part or its entirety. This includes the situation where you sell a WordPress Install to a third party.

2.2(b)(1) Site Purchase License Grant: If You transfer control or ownership of a WordPress Install that contains the Scarcity Samurai Software to a third party then Noble Samurai may choose to grant the third party a free Limited Site License to use the version Scarcity Samurai Software on the transferred WordPress Install only, subject to the third party agreeing to the terms of the Scarcity Samurai Software EULA at that time. If such transfer is undertaken under the Limited Site License, then regardless of whether Noble Samurai grants a license to the third party or not, the WordPress Install no longer under your control will count towards your Limited Site License Installation limits.

2.2(b)(2) Noble Samurai reserves the right to either suspend or terminate Your access to all Scarcity Samurai software and/or Noble Samurai Software and/or the services and account and terminate this Agreement if at Noble Samurai’s sole discretion it determines that the primary motivation of Your transfer of the WordPress Install was the presence of the Scarcity Samurai Software in the WordPress Install.

2.3 Modifications: You may make modifications to the code provided that any modifications conform to the terms of this agreement. You may not distribute a combined derived work in whole or in part, but may distribute modifications separately from the Scarcity Samurai Software under terms of Your choosing. You may not make or allow to be made modifications to the Scarcity Samurai Software or any software that interacts with the Scarcity Samurai Software that has the effect of impairing any copy protection or licensing mechanisms of the Scarcity Samurai Software.

2.4 Exclusive Ownership: Any and all IP Rights in the Scarcity Samurai Software, the Scarcity Samurai website as well as any other Noble Samurai websites  and any Noble Samurai Promotional Materials are and shall remain the exclusive property of Noble Samurai and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardise, limit or interfere with Noble Samurai’s IP Rights. Any unauthorised use of Noble Samurai’s IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.

2.5 No Removal of Notices: You agree that You will not remove, obscure, make illegible or alter any licensing notices, notices or indications of the IP Rights, and/or Noble Samurai’s rights and ownership, irrespective of how such Notices are included or displayed.

2.6 Use of Scarcity Samurai Software: You may make use of the Scarcity Samurai Software provided that:

You comply with the Noble Samurai Terms of Use at http://www.noblesamurai.com/termsandconditions.php;

Your use of the Noble Samurai Software is for legitimate purposes only and shall not adversely affect the functionality or performance of the Noble Samurai Software or services provided by Noble Samurai;

You do not use any internet-based services associated with Noble Samurai Software in any manner that could damage or materially impair such services or interfere with any other party’s use and enjoyment of them; and

You do not attempt to gain unauthorised access to any service, account, computer systems or networks associated with the internet-based services associated with Noble Samurai Software.

3      What You should and should not expect from Noble Samurai Software

3.1 (a) Third Party Warranties: Noble Samurai cannot guarantee that You will be able to access data, information or services from any third party nor that any data, information or services from any third party can be obtained without disruptions or delays. In addition, Noble Samurai cannot make any guarantees or warranties as to the accuracy of any data or information obtained either from Noble Samurai or any third party, the effectiveness or reliability of any services provided by a third party, or the reliability and the performance of or the suitability of the information provided by the Noble Samurai Software. In the event any Noble Samurai Software purchased on a subscription model provides an ongoing reduced service as a result of a break or change in the service from a third party, Noble Samurai may in its sole discretion offer the Noble Samurai Software at a reduced subscription price.

3.1(b) Compatibility: Noble Samurai cannot guarantee that the Noble Samurai Software will work correctly with all third party plugins, scripts or browsers.

3.2 New Versions of Scarcity Samurai Software: Noble Samurai, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades to the Scarcity Samurai Software (collectively known as “updates”). All provisions in this Agreement apply to all such updates unless new or additional terms and conditions are expressly provided with an update. Noble Samurai may determine that an upgrade will be offered at an additional cost to You either as a further one off payment or on a subscription model.

4      What we expect from You

4.1 Payment: You will pay all fees or charges to Your account based on Noble Samurai’s payment terms. If You are purchasing software by Noble Samurai on a subscription model, You may be required to provide Noble Samurai with a valid credit card as a condition to signing up for an account. You are responsible for paying any taxes that may apply and will ensure that the nominated credit card account is valid and has available credit to enable scheduled payments to be withdrawn by Noble Samurai. If You do not pay on time or if Noble Samurai cannot charge Your credit card for any reason, Noble Samurai reserves the right to either suspend or terminate Your access to the Noble Samurai Software and/or the services and account and terminate this Agreement. If You have a balance due on any account, You agree that Noble Samurai may charge such unpaid fees to Your credit card.

4.2 Representations: You represent and warrant that You are authorised to enter into and comply with this Agreement. In addition, You represent and warrant that You will at any and all times meet with Your obligations under this Agreement and the Terms of Use, as well as any and all laws, regulations and policies that may apply to the use of the Noble Samurai Software and/or services.

4.3 Indemnification: You agree to indemnify, defend and hold Noble Samurai and its affiliates harmless from and against any and all liability and costs, including reasonable legal fees incurred by such parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced in this Agreement, or (b) violation of any rights of any third party, or (c) use or misuse of the Noble Samurai Software.

5      Termination and Updates

5.1 Termination: Without prejudice to any other rights, Noble Samurai or You may terminate this Agreement at any time. Upon termination, (a) all licenses and rights to the Noble Samurai Software shall immediately terminate; (b) You will immediately cease any and all use of the Noble Samurai Software and services; and (c) You will immediately remove the Noble Samurai Software from all hard drives, networks and other storage media and destroy all copies of the Noble Samurai Software in Your possession or under Your control.

5.2 New Versions: Noble Samurai reserves the right to change this Agreement at any time by publishing the revised Agreement on the Noble Samurai Website. The revised Agreement shall become effective within thirty days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the Noble Samurai Software after expiry of the thirty days notice period shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at http://www.marketsamurai.com/eula.php

6      Disclaimer of Warranties and Limitation of Liability

6.1 No Warranties: The Noble Samurai Software is provided “as is” with no warranties whatsoever. Noble Samurai does not, either expressed, implied or statutory, make any warranties, claims or representations with respect to the Noble Samurai Software, including without limitation, warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for use for a particular purpose. In addition, Noble Samurai does not represent or warrant that the Noble Samurai Software will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free nor does Noble Samurai warrant any connection to or transmission from the internet.

6.2 Your own Risk: You acknowledge and agree that the entire risk arising of Your use of the Noble Samurai Software remains with You, to the maximum extent permitted by law.

6.3 Limitation of Liability: In no event shall Noble Samurai, its affiliates, its licensors or its staff, directors or shareholders be liable, whether in contract, warranty, tort (including negligence), product liability or any other form of liability, for:

6.3.1 Any direct, indirect, incidental, special or consequential damages (including without limitation any loss of or corruption to data, interruption, computer failure or pecuniary loss) arising out of the use or inability to use the Noble Samurai Software;

6.3.2 Any loss of income, business or profits (whether direct or indirect) arising out of the use or inability to use the Noble Samurai Software;

6.3.3 Any loss or damage which may be incurred by You as a result of:

i        any claims brought by third parties arising out of Your obtaining or using the Noble Samurai Software;

ii       any claims brought by third parties arising out of Your using information obtained from the Noble Samurai Software;

iii      the suspension or termination of this Agreement by You or Noble Samurai for any reason; or

iv     the release or the decision not to release new versions of the Noble Samurai Software to You

irrespective of whether or not Noble Samurai, its affiliates, its licensors, its staff, directors or shareholders have been advised of the possibility of such losses or damages arising.

6.4 Nothing in this Agreement is intended to exclude or restrict the liability of Noble Samurai for (i) the death or personal injury caused by the negligence of Noble Samurai, its staff or agents, or (ii) any liability which cannot be limited or excluded by law.

6.5 Jurisdiction’s Limitations: As some jurisdictions do not allow certain exclusions or limitations by statutory instrument, the liability will be limited to the extent possible within the applicable legislation. To the fullest extent permitted by law, Noble Samurai’s liability for breach of any implied warranty or condition which cannot be excluded or limited is limited to the amount paid by You to Noble Samurai for the Noble Samurai Software out of which liability arose.

7      Miscellaneous

7.1 Entire Agreement: This Agreement constitutes the entire agreement between You and Noble Samurai with respect to the subject matter and will supersede and replace all prior understandings and agreements, in whatever form, relating to the subject matter.

7.2 Partial invalidity: If any provision of this Agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the terms in this Agreement which will continue in full force and effect.

7.3 No waiver: The failure to exercise, or delay in exercising, a right, power or remedy provided to Noble Samurai by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If Noble Samurai waives a breach of any provision of this Agreement this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

7.4 Applicable Law and Competent Court: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Victoria, Australia and shall be subject to the jurisdiction of the courts of Victoria, Australia.

7.5 Survival: The terms of sections 2.3, 4 and 5 of this Agreement shall survive termination of this Agreement.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE NOBLE SAMURAI SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO NOBLE SAMURAI ALL RIGHTS CONTAINED WITHIN THIS AGREEMENT.

 

Promulgation Date: 8 February 2013