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 any Noble Samurai Software, including but not limited to Market Samurai and Vidnami, 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 any Noble 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 any Noble Samurai Software.
- Agreement: this End User License Agreement, as may be renewed and/or amended from time to time.
- 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, website promotion purposes or content creation including but not limited to Vidnami, Market Samurai, Question Samurai, Rank Tracker, Video Traffic Blueprint and Vidsy, as well as any future versions, improvements, developments, programming fixes, updates and upgrades.
- You: You, the end user of the Noble Samurai Software, either as an individual or an entity, also used in the form "Your" where applicable.
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 Noble Samurai Software on five computers only. 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 License Limited to five computers: You will not have Noble Samurai Software installed, accessed, displayed, run, shared or used concurrently on or from more than five different computers, including a workstation, terminal or other device.
- 2.3 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 Noble Samurai Software either in part or its entirety.
- 2.4 No Modifications: You will not undertake, cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Noble Samurai Software or any part of the Noble Samurai Software except to the extent permitted by law.
- 2.5 Exclusive Ownership: Any and all IP Rights in the Noble Samurai Software, the Noble Samurai website 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.
- 2.6 No Removal of Notices: You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Noble Samurai's rights and ownership, irrespective of how such Notices are included or displayed.
- 2.7 Use of Noble Samurai Software:
You may make use of the Noble Samurai Software provided that:
- 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 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.
What You should and should not expect from Noble Samurai Software
- 3.1 No Warranties: Installing and using Noble Samurai Software assists You in conducting internet market research and promotions using data and information from, and services of, third parties. 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.
- 3.2 New Versions of Noble 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 Noble 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.
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.
- 4.3 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.
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; and (b) Noble Samurai will disable the Noble Samurai Software associated with your account.
- 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 date 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 https://www.noblesamurai.com/eula.php
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;
Any loss or damage which may be incurred by you as a result of:
- any claims brought by third parties arising out of Your obtaining or using the Noble Samurai Software;
- any claims brought by third parties arising out of Your using information obtained from the Noble Samurai Software;
- the suspension or termination of this Agreement by You or Noble Samurai for any reason; or
- the release or the decision not to release new versions of the Noble Samurai Software to You
- 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.
- 7.1 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 Assignment: Noble Samurai may assign or transfer any or all of its rights and obligations under this Agreement to a third party. Upon such assignment or transfer, Noble Samurai will promptly ensure that the third party will undertake to comply with all applicable terms contained within this Agreement.
- 7.5 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.
- 7.6 Survival: The terms of sections 2.5, 5 and 6 of this Agreement shall survive termination of this Agreement.
Vidnami® is a registered trademark of Persistent Cache Pty Ltd.
Promulgation Date: 7 Feb 2018