damaka
end user license agreement

IMPORTANT – PLEASE READ CAREFULLY : This End User License Agreement (“Agreement” or “EULA”) constitutes a valid and binding agreement between damaka, Inc. (“damaka”) and you (either an individual or a single entity) for the use of the damaka Application and Services, as those terms are defined below. You must enter into this agreement in order to install and use such damaka Application.

BY INSTALLING AND USING THE DAMAKA APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE DAMAKA APPLICATION.  

THE DAMAKA APPLICATION AND SERVICES ARE NOT INTENDED FOR USE BY OR AVAILABILITY TO PERSONS UNDER THE AGE LIMIT OF ANY JURISDICTION WHICH RESTRICTS THE USE OF INTERNT-BASED APPLICATIONS AND SERVICES ACCORDING TO AGE. IF YOU RESIDE IN SUCH A JURISDICTION AND ARE UNDER THAT JURISDICTION’S AGE LIMIT FOR USING INTERNET-BASED APPLICATIONS OR SERVICES, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE DAMAKA APPLICATION.  

YOU ARE NOT ALLOWED TO USE THE DAMAKA APPLICATION IN TERRITORIES WHERE OFFERING OR USING SUCH SERVICES IS FORBIDDEN BY LAW. BY AGREEING TO THE EULA, YOU WILL EXPLICITYLY STATE THAT YOU HAVE VERIFIED IN YOUR OWN TERRITORY IF THE OFFERING AND USE OF SUCH APPLICATION IS ALLOWED.

YOU ARE NOT ALLOWED TO USE THE DAMAKA APPLICATION IN ANY COUNTRY THAT UNITED STATES HAVE PLACED SANCTIONS. BY DOWNLOADING, INSTALLING AND USING DAMAKA APPLICATION, YOU ARE EXPLICITLY STATING AND CERTIFYING THAT YOU ARE NOT A NATIONAL OF CUBA , IRAN , LIBYA , NORTH KOREA , SUDAN , SYRIA , OR ANY COUNTRY TO WHICH UNITED STATES EMBARGOES GOODS.

BY ACCEPTING THIS AGREEMENT YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE DAMAKA APPLICATION AND THE SERVICES DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY TYPE OF HOSPITALS, LAW ENFORCEMENT AGENCIES, MEDICAL CARE UNIT OR ANY TYPE OF EMERGENCY SERVICES OF ANY KIND AND THAT DAMAKA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND NETWORKS SERVICE PROVIDERS ARE NOT LIABLE IN ANY MANNER FOR SUCH CALLS. 

BY ACCEPTING THIS AGREEMENT YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE DAMAKA APPLICATION AND THE SERVICES DO NOT GUARANTEE SECURITY AND QUALITY OF SERVICE WHILE CONNECTING TO OTHER SIP NETWORKS.

LICENSE GRANT

• Subject to the terms of this Agreement, damaka hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the damaka Application, including any documentation from the damaka’s Web Site, updates and upgrades provided to you (collectively, the “damaka Application”) onto a computer for your sole use to install, interact with and utilize the damaka Application, including the content and features contained therein. The damaka Application may only be used in connection with the Services. The term “Services” do not refer to any paid services that may be offered through the damaka Web Site.

• You are allowed to redistribute the Application, under the conditions that you (i) do not modify the Application; (ii) do not remove any proprietary notices from the Application; (iii) notify damaka in writing via email to promotion@damaka.net of your intentions to promote or distribute the damaka Application; (iv) clearly indicate that the Application originates from damaka and if published on a Web Site, include a link to www.damaka.com and a link to the download location of the Application; (v) constantly monitor www.damaka.com in order to ensure that you are distributing the latest stable version; and (vi) do not distribute the Application for any (commercial) gain, including but not limited to including the Application in any commercial Application bundle. However, the publishers of computer magazines for end users are allowed to distribute the Application for free with their magazines, provided that they meet with all aforementioned conditions.

LICENSE RESTRICTIONS

• Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Services, damaka Application or any copy thereof; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling or hacking of the damaka Application and the Services; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the damaka Application or Services, including, without limitation, through sublicense, to any other entity without the prior written consent of damaka, with the exception of the right to redistribute the Application in accordance with the terms as mentioned in section LICENSE GRANT (b) above; (iv) export or re-export the damaka Application in violation of any applicable export laws; (v) use the damaka Application or Services for any commercial purpose (other than as an end user who is a member of a commercial entity) or the benefit of any third party or charge any person for the use of the damaka Application; or (vi) use the damaka Application or Services in any way that would violate any applicable law, regulation or ordinance; (vii) collect any information or communication about the users of the damaka Application or Services by monitoring, interdicting or intercepting any process of the damaka Application; or (viii) use any type of virus, worm, Application lock, packet-sniffer, Trojan-horse routing, or any other codes or instructions that are designed to be used to provide a means of secret or unauthorized access or that are designed to distort, delete, damage or disassemble the damaka Application or the Services; and (iv) not use the Services to modify, delete or damage any information contained on the computers of any users connected to the Services. Furthermore, you may not use the damaka Application or Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the damaka Application or Services, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) is harassment or a violation of privacy or threatens other people or groups of people; and (F) impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
• The damaka Application and Services contain proprietary, confidential and trade secret information owned by damaka, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information.
• The damaka Application and Services may be incorporated into, and may incorporate, technology, Application and Services owned and controlled by third parties. damaka emphasizes that it will only incorporate such third party Application for the purpose of (i) adding new or additional functionality or (ii) improving the technical performance of the damaka Application and Services. Any other third party Application which could be distributed together with damaka will be subject to you explicitly accepting a license agreement with this third party. Use of such third party Application or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to damaka to enforce any of your rights.
• All modifications or enhancements to the damaka Application and Services remain the sole property of damaka. You understand that damaka, in its sole discretion, may modify or discontinue or suspend your right to access any of its Services or use any of the damaka Application at any time, and may at any time suspend or terminate any license hereunder and disable any damaka Application you may already have accessed or installed without prior notice. damaka reserves the right to add additional features or functions to the damaka Application. You acknowledge and agree that damaka has no obligation to make available to you any subsequent versions of its Applications.
• Paid Services : This Agreement applies to downloading, installing and using the damaka Software, free of charge. The use of any paid services which may be offered by damaka or its affiliates, is subject to the additional Terms of Service that are published on the damaka Web Site. Please read the DialOut™ Terms of Service from damaka Web Site if you are using damaka’s DialOut service before accepting this EULA www.damaka.com. By accepting this agreement, you are also accepting the DialOut™ Terms of Service.

PRIVACY

damaka is committed to respecting your privacy and the confidentiality of your personal data. damaka does not collect any communication contents such as calls or Instant Messages unless requested by law enforcement agencies. To get more details on the Privacy Policy, please visit damaka’s Web Site www.damaka.com.

INDEMNITY

You agree to indemnify, hold harmless and defend damaka, its officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by damaka arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, (b) intentional or negligent violation of any applicable laws, (c) violation of any rights of any third party, or (d) use or misuse of the damaka Application and/or Services.

INTELLECTUAL PROPERTY RIGHTS

The damaka Application and Services contain proprietary and confidential information of damaka, including copyrights, trade secrets and trademarks contained therein, which are protected by copyright laws, trademark laws as well as other (intellectual property) laws. Title to and ownership of the damaka Application, including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of damaka and its suppliers, and except for the limited license to use the damaka Application granted to you, damaka reserves all right, title and interest in and to the damaka Application. You shall not take any action to jeopardize, limit or interfere with damaka’s intellectual property rights and/or ownership of and rights with respect to the damaka Application and Services. You are not permitted to remove from or change in damaka Application any designation or sign concerning or including copyrights, trademarks, trade names or other intellectual property rights, including any indications concerning the confidential nature and secrecy of the damaka Application. You acknowledge that any unauthorized copying or unauthorized use of the damaka Application, Services or intellectual property rights is a violation of this Agreement and copyright, trademark and/or other (intellectual property) laws and is strictly prohibited.

TERM

• This Agreement will be effective as of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until terminated by either party as set forth below.
• You may terminate this Agreement at any time, under the conditions provided herein. damaka may terminate this Agreement at any time, with or without cause, by providing notice to you and/or preventing your access to the damaka Application and/or Services.
• Upon termination of this Agreement for any reason (i) all licenses and rights to use the damaka Application and the Services shall terminate; (ii) you will cease any and all use of the damaka Application and Services; and (iii) you will remove the damaka Application from all hard drives, networks, and other storage media and destroy all originals and copies of the damaka Application in your possession or under your control.
• All provisions which must survive in order to give effect to their meaning shall survive any expiration or termination of this Agreement, including without limitation, all of your representations, warranties and indemnification obligations.

YOUR REPRESENTATIONS AND WARRANTIES

• You represent and warrant that (i) you possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) you will use the damaka Application and Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you will not attempt to decompile, reverse engineer or hack the damaka Application or to defeat or overcome any encryption and/or other technical protection methods implemented by damaka with respect to the damaka Application and/or data transmitted, processed or stored by damaka or other users of the damaka Application, (iv) you will not take any steps to interfere with or in any manner compromise any of damaka’s security measures, any other individual’s or entity’s computer and/or otherwise sharing Services, (v) you will always provide and maintain true, accurate, current and complete information as requested by damaka, (vi) you will use the damaka Application feature and functionality such as microphone and speaker control appropriately to your hearing needs (vii) you will only use the damaka Application and Services on a computer on which such use is authorized by the computer’s owner, and (viii) you will not use any automatic or manual device or process to interfere or attempt to interfere with the proper working of the damaka Application or Services, except to remove the damaka Application from a computer of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the damaka Application or Services. damaka reserves the right to investigate occurrences which may involve such violation, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
• If damaka has reasonable grounds to suspect that your representations and warranties are inaccurate or breached, damaka may terminate this license, deny any or all use of the damaka Application and/or Services, and pursue any appropriate legal remedies.

WARRANTY DISCLAIMER

• THE DAMAKA APPLICATION AND SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY DAMAKA, EITHER EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE DAMAKA APPLICATION OR SERVICES, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. DAMAKA FURTHER DOES NOT REPRESENT OR WARRANT THAT THE DAMAKA APPLICATION OR ANY SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES DAMAKA WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE DAMAKA APPLICATION OR THE SERVICES.
• YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE DAMAKA APPLICATION AND SERVICES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
• YOU ACKNOWLEDGE THAT DAMAKA DOES NOT CONTROL OR HAVE KNOWLEDGE OF ANY OF THE AVAILABLE CONTENT SHARED THROUGH THE SERVICES. ALL CONTENT WHETHER PUBLICLY POSTED OR PRIVATELY TRANSMITTED IS THE ENTIRE RESPONSIBILITY OF THE PERSON FROM WHOM SUCH CONTENT ORIGINATED. DAMAKA DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY OR LEGALITY OF SUCH CONTENT. YOU MAY BE EXPOSED TO CONTENT THAT IS OFFENSIVE, INDECENT OR OBJECTIONABLE. UNDER ANY CIRCUMSTANCES, DAMAKA WILL NOT BE LIABLE IN ANY WAY FOR THE NATURE OF ANY CONTENT, FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY CONTENT TRANSMITTED VIA THE SERVICES.

AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS SET FORTH IN THIS SECTION, SOME OF THESE EXCLUSIONS MAY NOT APPLY FOR YOU.

LIMITATION OF LIABILITY

• IN NO EVENT SHALL DAMAKA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR NETWORK SERVICE PROVIDERS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE DAMAKA APPLICATION OR THE SERVICES, EVEN IF DAMAKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE DAMAKA APPLICATION AND/OR SERVICES IS TO UNINSTALL AND CEASE USE OF SUCH DAMAKA APPLICATION AND SERVICES.

AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS SET FORTH IN THIS SECTION, SOME OF THESE EXCLUSIONS MAY NOT APPLY FOR YOU.

ELECTRONIC SIGNATURES

You acknowledge and agree that by clicking on the button labeled“DOWNLOAD”, “ACCEPT” or any check boxes next to such labels or such similar links as may be designated by damaka to download the damaka Application to accept the terms and conditions of this Agreement, you are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement.

PURSUANT TO ANY APPLICABLE STATUTES, REGULATIONS, RULES, ORDINANCES OR OTHER LAWS, YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION IN ORDER TO ENTER INTO CONTRACTS, PLACE ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE DAMAKA APPLICATION OR SERVICES. FURTHER, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY STATUTES, REGULATIONS, RULES, ORDINANCES OR OTHER LAWS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.

GENERAL

This EULA shall be governed by the internal laws of the State of Texas , without giving effect to principles of conflict of laws. You hearby consent to the exclusive jurisdiction and venue of the state courts sitting in Dallas County, Texas or the federal courts in Texas to resolve into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.

damaka reserves all rights not expressly granted herein. damaka may modify this Agreement at any time by posting the revised Agreement on its Web Site located at www.damaka.com. Your continued use of the damaka Application and/or Services shall constitute your acceptance of such revised Agreement. You may not assign this Agreement or any rights hereunder. Nothing in this Agreement shall constitute a partnership or joint venture between you and damaka. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in effect. The failure or delay of damaka 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. The terms set forth in this Agreement and any related service agreements constitute the final, complete and exclusive agreement with respect to the damaka Application and Services and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. damaka may at its sole discretion assign this Agreement to another corporation or company during change of control without giving prior notice.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE DAMAKA APPLICATION, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO DAMAKA THE RIGHTS SET FORTH HEREIN.

All questions concerning this EULA shall be directed to damaka, Inc., 2140 Lake Park Blvd., Suite 303 , Richardson , TX 75080 .

September 15, 2006