PLEASE READ CAREFULLY BEFORE INSTALLING, COPYING OR OTHERWISE DOWNLOADING AND USING THE SOFTWARE: THIS END USER LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND BBPOS INTERNATIONAL LIMITED AND IS EFFECTIVE UPON YOUR ACCEPTANCE. BY CLICKING ON THE “I AGREE” BUTTON, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “I AGREE” BUTTON AND DO NOT DOWNLOAD OR USE THE SOFTWARE.
1. INTRODUCTION
1. 1.
This End User License Agreement ("License") applies to software and related information, documents and materials (“Software”) which is made available on BBPOS's Developers Website (developer.bbpos.com) (“Website”) and which can be downloaded by a user of the Website. Any such Software download is subject not only to the Terms and Conditions of the Website (“Terms and Conditions”) but also to the terms and conditions of this License. This License is a separate legally binding agreement between the licensee (“Licensee”), as the downloader of the Software, and BBPOS International Limited, a limited company formed and existing under the laws of Hong Kong, having its registered office and principal place of business at Suite 1904, 19/F, Tower 2, Nina Tower, No 8 Yeung UK Road, Tsuen Wan, New Territories, Hong Kong ("BBPOS").
2. LICENSE
2. 1.
BBPOS grants the Licensee for the term of this License a limited, personal, non-exclusive license to:
2. 1. 1.
use the Software in object code executable only form on a single computer owned, leased and/or controlled by Licensee and limited to use by Licensee in order for Licensee to develop applications in connection with BBPOS products;
2. 1. 2.
make up to two (2) copies of the Software in machine readable form for normal operational security and back-up purposes only. This License will apply to such copies in the same manner and to the same extent as it applies to the original copy of the Software installed by the Licensee.
2. 2.
All rights not expressly granted to the Licensee under this License are reserved to BBPOS, and the Licensee agrees not to take or permit any action with respect to the Software that is not expressly authorized under this License. For the avoidance of doubt, the Licensee shall have no right to use, incorporate into other products, copy, modify, translate, or transfer to any third party the Software, or any modification, adaptation, or copy of the Software, or any part thereof, nor to decompile, reverse engineer, or disassemble the binary code of the Software, either in whole or in part, except as expressly provided in this License.
2. 3.
The Software is licensed, under this License, to the Licensee only. The Licensee may not rent, lease, sub-license, sell, assign, pledge, transfer, or otherwise encumber or dispose of the Software, on a temporary or permanent basis without the prior written consent of BBPOS which may be withheld and its sole and absolute discretion.
3. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
3. 1.
The Licensee’s only right to use the Software is by virtue of this License and the Licensee acknowledges that all intellectual property rights in or relating to the Software and all parts of the Software are and shall remain the exclusive property of BBPOS.
3. 2.
The Licensee further acknowledges that all intellectual property rights in or relating to any improvement, modification, or adaptation of the Software arising directly or indirectly from the Licensee using the Software are and shall remain the exclusive property of BBPOS.
3. 3.
The Licensee agrees that the Licensee will not remove or alter any copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Software or any copy of the Software.
4. CONFIDENTIALITY
4. 1.
The structure, organization and source code of the Software are the valuable trade secrets and proprietary confidential information of BBPOS. The Licensee agrees not to provide or disclose any such confidential information in the Software or derived from it to any third party.
4. 2.
The provisions of clause 4.1 will not apply to any information which is:
4. 2. 1.
lawfully obtained free of any duty of confidentiality (whether directly or indirectly from BBPOS); or
4. 2. 2.
already in Licensee’s possession, provided that Licensee can show such possession from written records (other than as a result of a breach of this clause 4); or
4. 2. 3.
which Licensee can demonstrate is in the public domain (other than as a result of a breach of this clause 4).
4. 3.
To the extent that any information is necessarily disclosed pursuant to a statutory or regulatory obligation or court order, such disclosure shall not be a breach of this clause 4 provided Licensee uses its best efforts to prevent any such disclosure and provides prompt written notice of such court order or requirement (unless such prior notice is prohibited by applicable law, government regulation or is a requirement of regulators) to BBPOS to enable BBPOS to seek a protective order or otherwise prevent or restrict such disclosure.
5. WARRANTY AND SUPPORT
5. 1.
The Software is provided “as is” with no representation, guarantee, or warranty of any kind as to its functionality or that it does not and will not infringe any third party rights (including intellectual property rights). BBPOS has no obligation under this License to provide technical or other support to Licensee. The provision of any such services shall be subject to a separate agreement between Licensee and BBPOS.
6. LIMITATION AND EXCLUSION OF LIABILITY
6. 1.
BBPOS makes no express warranties with respect to the Software and BBPOS hereby excludes (to the fullest extent permissible in law) all conditions, warranties (including without limitation any warranty that the Software will meet Licensee’s requirements or that its operation will be uninterrupted or error free), and stipulations, express (other than those set out in this License) or implied, statutory, customary, or otherwise which, but for such exclusion, would or might subsist in favor of Licensee. Except as set out in this License, Licensee assumes the entire risk as to the quality and performance of the Software.
6. 2.
BBPOS shall have no liability to Licensee whatsoever (whether in contract, tort, breach of statutory duty, restitution, or otherwise) for any injury, death, damage, direct, indirect, or consequential loss (all tof which include, without limitation, pure economic loss, loss of profits, loss of business, loss of data, loss of savings, depletion of goodwill, and like loss) howsoever caused arising out of or in connection with:
6. 2. 1.
the Software, or the manufacture, sale, supply, or failure or delay in supply, of the Software by BBPOS or on the part of BBPOS’s employees, agents or sub-contractors;
6. 2. 2.
any breach by BBPOS of any of the express or implied terms of this License;
6. 2. 3.
any use made of the Software; or
6. 2. 4.
any statement made or not made, or advice given or not given, by or on behalf of BBPOS.
6. 3.
Without prejudice to clauses 6.1 and 6.2, BBPOS’s aggregate liability under this License (whether in contract, tort, breach of statutory duty, restitution, or otherwise) for any injury, death, damage, direct, indirect, or consequential loss (all tof which include, without limitation, pure economic loss, loss of profits, loss of business, loss of data, loss of savings, depletion of goodwill, and like loss) shall be limited to the higher of the price paid by Licensee to use the Software or USD $100.00.
6. 4.
Licensee acknowledges that the above provisions of this clause 6 are reasonable given the payment by Licensee (if any) for the Software and Licensee accepts such risk. Licensee may insure accordingly.
7. TERM AND TERMINATION
7. 1.
This License shall commence upon the earlier of Licensee’s acceptance of this License or Licensee’s installation of the Software and shall continue until terminated in accordance with clause 7. 2 or otherwise in accordance with this License.
7. 2.
This License will terminate automatically if Licensee fails to comply with any term or condition of this License or if Licensee uninstalls, destroys, or voluntarily returns the Software to BBPOS.
7. 3.
Upon termination of this License for any reason whatsoever Licensee must uninstall the Software and destroy, and upon request of BBPOS certify the destruction of, all copies of the Software including all components of it in Licensee’s possession.
7. 4.
The termination of this License howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. Clauses 2.2, 2.3, 3, 4, 5, 6, 7.3, 8, 9 and 10 of this License shall survive the termination of this License and shall continue to be enforceable notwithstanding termination.
8. GOVERNING LAW AND JURISDICTION
8. 1.
The formation, existence, construction, performance, validity, and all aspects whatsoever of this License or of any term of this License will be governed by the law of Hong Kong.
8. 2.
Subject to clause 8.3 the courts of Hong Kong will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this License. The parties irrevocably agree to submit to that jurisdiction.
8. 3.
The agreement contained in clause 8.2 above is included for the benefit of BBPOS. Accordingly, BBPOS retains the right to bring proceedings in any other court of competent jurisdiction. Licensee irrevocably waives any objection to, and agrees to submit to, the jurisdiction of such other courts.
8. 4.
Licensee irrevocably agrees that a judgment or order of any court referred to in this clause is conclusive and binding upon Licensee and may be enforced against Licensee in the courts of any other jurisdiction.
9. COMPLIANCE WITH APPLICABLE LAW
9. 1.
Licensee acknowledges and agrees that notwithstanding the fact that this License is governed by the laws of Hong Kong, Licensee may be subject to additional laws in other jurisdictions with respect to Licensee’s use of the Software. Licensee will comply with the laws of any jurisdiction that apply to the Software, including without limitation any applicable export laws or regulations.
10. GENERAL
10. 1.
If any clause or part of this License is found by any court, tribunal, administrative body, or authority of competent jurisdiction to be illegal, invalid, or unenforceable then that provision will, to the extent required, be severed from this License and will be ineffective without, as far as is possible, modifying any other clause or part of this License and this will not affect any other provisions of this License which will remain in full force and effect.
10. 2.
No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
10. 3.
This License contains all the terms which the parties have agreed in relation to the subject matter of this License and supersedes any prior written or oral agreements, representations, or understandings between the parties in relation to such subject matter.
10. 4.
BBPOS reserves the right to revise the terms of this License by updating the License on the Website or by notifying Licensee by post or by e-mail. Licensee is responsible to check the Website periodically for notices concerning revisions. Licensee’s continued use of the Software shall be deemed to constitute acceptance of any revised terms.
10. 5.
Licensee may not assign the benefit (including any present, future, or contingent interest or right to any sums or damages payable by either party under or in connection with this License) or delegate the burden of this License or hold this License in trust for any other person.