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262 lines
17 KiB
262 lines
17 KiB
YumaWorks License Agreement
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yangcli-pro End User License Agreement
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YumaWorks, Inc., Licensor, ("YumaWorks") is willing to license the software contained herein
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("Licensed Software") only on the condition that you accept all of the terms in this Agreement.
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PLEASE READ THE TERMS CAREFULLY. BY LOADING, DOWNLOADING, MODIFYING, OR
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OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO BE BOUND BY THIS
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LICENSE AGREEMENT.
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If you do not agree to these terms, YumaWorks is unwilling to license the software to you. In
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such event, you may not use the licensed software, and you should promptly contact
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YumaWorks for instructions on erasing and/or inactivating it.
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NOTE:
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• THE LICENSED SOFTWARE IS LIMITED TO USE BY A SINGLE USER
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• THE LICENSED SOFTWARE MAY INSTALLED ON ONE COMPUTER.
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SEE EXHIBIT B.
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• THE LICENSED SOFTWARE CANNOT BE DISTRIBUTED TO OTHERS.
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• THE TEST RESULTS FROM USE OF THE LICENSED SOFTWARE TESTS CANNOT
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BE PUBLISHED IN ANY WAY.
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• THE SOFTWARE AND ACCOMPANYING USER DOCUMENTATION ARE PROTECTED
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BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY.
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UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND
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CRIMINAL PENALTIES.
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• THE SOFTWARE USES EXTERNAL LIBRARIES AND OPEN-SOURCE C MODULES
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WHICH HAVE THEIR OWN LICENSE. REFER TO yumapro-legal-notices.pdf.
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This License Agreement (the "Agreement") is made as of the purchase date (the "Effective
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Date"), by and between YumaWorks, Inc., a California corporation that may be contacted at 685
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Cochran St., #160, Simi Valley, CA, 93065 ("YumaWorks") and you ("Licensee").
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RECITALS
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A. YumaWorks owns the rights to grant licenses to certain computer software modules used in
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implementing certain networking protocols described in Exhibit A.
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B. YumaWorks desires to grant and Licensee desires to receive a non- exclusive license to such
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YumaWorks computer software modules in accordance with the terms and conditions of this
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Agreement.
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NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties
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agree as follows:
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1. DEFINITIONS
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1.1 Licensed Software means YumaWorks's computer software modules and documentation
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thereof, as specified in Exhibit A, including bug fixes and updates there to provided to
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Licensee in connection with this Agreement.
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1.2 Intellectual Property Rights means patent rights, copyright rights, trade secret rights,
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and any other intellectual property rights.
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1.3 Binary Code means the portion of the Licensed Software which is licensed to Licensee in
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machine executable binary form, as specified in Exhibit A.
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1.4 Source Code means the portion of the Licensed Software which is licensed to Licensee in
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human-readable form, as specified in Exhibit A.
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2. LICENSE GRANTS
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2.1 Binary Code Use License. Subject to the terms and conditions of this Agreement, and
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upon payment by Licensee to YumaWorks of the license fees set forth in Section 6.1,
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YumaWorks grants Licensee a non-exclusive, non-transferable license to use the Binary Code
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(if any) for internal use only, for the sole purpose of defining and managing networking devices
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on its own internal (enterprise) network. Licensee may use the Binary Code (if any) as
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specified in Exhibit B. Licensee agrees to comply with all reasonable monitoring requirements
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imposed by YumaWorks to ensure compliance with the license restrictions.
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2.2 No Sublicense Right. Licensee has no right to transfer, sublicense or otherwise distribute
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the Licensed Software to any third party.
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2.3 Other Restrictions in License Grants. Licensee may not: (i) disassemble, decompile or
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reverse engineer the Binary Code nor permit any third party to do so; (ii) copy the Licensed
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Software, except as necessary to use the Licensed Software in accordance with the license
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granted under Sections 2.1, and except for a reasonable number of backup copies; or (iii) use
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the Licensed Software in any manner to provide testing or other computer services to third
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parties.
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2.4 No Trademark License. Licensee has no right or license to use any trademark of
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YumaWorks or its suppliers during or after the term of this Agreement. In particular, and
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without limiting the foregoing, Licensee may not use any trademark of YumaWorks or the
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name "YumaWorks", without consent of YumaWorks, in making any statement or
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representation concerning results of testing and verification performed using the Licensed
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Software.
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2.5 Proprietary Notices. The Licensed Software is copyrighted. All proprietary notices
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incorporated in, marked on, or affixed to the Licensed Software by YumaWorks or its suppliers
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shall be duplicated by Licensee on all copies, in whole or in part, in any form and not altered,
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removed, or obliterated.
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2.6 Reservation. YumaWorks and its suppliers reserve all rights and licenses to the Licensed
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Software not expressly granted to Licensee under this Agreement.
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3. DELIVERY OF LICENSED SOFTWARE
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Licensee may access the Licensed Software upon acceptance of this agreement.
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4. WARRANTIES
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4.1 No Warranty.
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THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS
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"AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
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TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
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PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL YumaWorks, Inc. BE
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LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
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CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF
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SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS
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INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER
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IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR
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OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF
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ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
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4.2 Warranty Exclusion and Disclaimer. THE WARRANTY WITH RESPECT TO THE
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LICENSED SOFTWARE WILL BE VOID AND OF NO EFFECT IF LICENSEE MODIFIES THE
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SOURCE CODE. THE WARRANTIES SET FORTH IN SECTION 4.1 ARE IN LIEU OF, AND
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YumaWorks EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND
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IMPLIED, WRITTEN AND ORAL, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
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WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
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NON-INFRINGEMENT. YumaWorks DOES NOT WARRANT THAT OPERATION OF THE
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LICENSED SOFTWARE WILL BE ERROR FREE. SOME MODULES OF THE LICENSED
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SOFTWARE ARE DERIVED FROM THIRD PARTY SOFTWARE AND NO SUCH THIRD
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PARTY WARRANTS THE MODULES, ASSUMES ANY LIABILITY REGARDING USE OF
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THE MODULES, OR UNDERTAKES TO FURNISH ANY SUPPORT OR INFORMATION
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RELATING TO THE MODULES.
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5. MAINTENANCE AND UPDATES
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5.1 Maintenance. Subject to YumaWorks's limited resources, YumaWorks will, at no
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additional charge to Licensee, provide Licensee with reasonable technical support for the
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warranty period as specified in Section 4.1 via e-mail during YumaWorks's normal business
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hours.
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5.2 Updates. If and when YumaWorks develops updates to the Licensed Software from time
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to time, YumaWorks, at its sole discretion, may, but has no obligation to, provide Licensee with
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separately priced updates for the Licensed Software at the request of Licensee. All such
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updates will be considered "Licensed Software" and subject to all terms and conditions of this
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Agreement.
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6. LICENSE FEE
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6.1 License Fee. In consideration of the licenses granted in Section 2, above, Licensee shall
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pay YumaWorks a non-refundable license fee in accordance with YumaWorks's then current
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price list within thirty (30) days after the Effective Date.
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6.2 Update Fee. In the event YumaWorks provides Licensee with an update to the Licensed
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Software in accordance with Section 5.2, Licensee shall pay YumaWorks the then-current
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YumaWorks standard update fee within thirty (30) days after receipt of such update.
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6.3 Taxes and Duties. In addition to the license and update fees set forth above, Licensee
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shall pay all sales, use, or other taxes and fees imposed as a result of payment of the fees set
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forth above, if any, other than taxes measured by YumaWorks's net income.
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7. INTELLECTUAL PROPERTY RIGHTS
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7.1 Title. All right, title and interest in and to the Licensed Software, and all Intellectual
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Property Rights embodied therein shall at all times remain with YumaWorks or its suppliers, as
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applicable.
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7.2 Confidential Information. Licensee acknowledges and agrees that the Licensed
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Software contains confidential, proprietary information and trade secrets of YumaWorks. For
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the longer of: (i) a period of five (5) years after the date of disclosure or (ii) the expiration or
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termination of this Agreement, Licensee shall not disclose or make available any portion of the
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Licensed Software or any information derived from the Licensed Software to any person or
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entity except to those of Licensee's employees for whom access is necessary in order to
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perform their jobs in accordance with this Agreement. The standard of care Licensee must
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exercise to meet these obligations is the standard it exercises with respect to its own
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confidential information of a similar nature, but in no event less than due care. This obligation
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does not apply to information: (a) known by Licensee prior to its receipt from YumaWorks and
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not subject to restriction on disclosure; (b) rightfully received by Licensee from a third party
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without restriction on disclosure; or (c) publicly available other than as a result of any act or
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omission of Licensee.
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7.3 Contractors. In the event that Licensee elects to have a third party contractor modify the
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Source Code pursuant to Section 2.1 above, Licensee will require such contractor to enter into
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a written confidentiality agreement with Licensee which (i) is no less restrictive than this
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Section 7, and (ii) requires such contractor to promptly deliver to Licensee all of YumaWorks
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confidential information and the Source Code upon completion of such modifications and
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certify in writing to Licensee that it has delivered all such materials.
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8. LIMITATION OF LIABILITY
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IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF YumaWorks IN
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CONNECTION WITH THIS AGREEMENT FOR ALL CAUSES OF ACTION OF ANY KIND,
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INCLUDING THOSE BASED UPON CONTRACT AND TORT (INCLUDING NEGLIGENCE
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AND STRICT LIABILITY), EXCEED THE LICENSE FEES RECEIVED BY YumaWorks FROM
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LICENSEE. IN NO EVENT WILL YumaWorks OR ITS SUPPLIERS BE LIABLE FOR LOSS
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OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION OR ANY SPECIAL,
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INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, HOWEVER
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CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER CONTRACT OR TORT
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(INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING IN ANY WAY OUT OF THIS
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AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND
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NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
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9. TERM AND TERMINATION
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9.1 Term. The term of this Agreement shall be for a period of one (1) year from its Effective
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Date of the Agreement, unless earlier terminated or canceled in accordance with the
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provisions of this Agreement.
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9.2 Termination.
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9.2.1 Material Breach. Either party may terminate this Agreement if the other party breaches
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any material term or condition of this Agreement and fails to cure that breach within thirty (30)
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days after receiving written notice of the breach. Notwithstanding the foregoing, YumaWorks
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may terminate this Agreement effective immediately upon written notice to Licensee without
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any cure period in the event of breach of confidentiality obligation herein.
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9.2.2 Financial Difficulties. Either party may terminate this Agreement effective immediately
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upon written notice to the other party if the other party files a voluntary petition in bankruptcy
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or otherwise seeks protection under any law for the protection of debtors; has a proceeding
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instituted against it under any provision of the bankruptcy laws which is not dismissed within
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sixty (60) days; is adjudged to be bankrupt; has a court assume jurisdiction of its assets under
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a reorganization act; has a trustee or receiver appointed by a court for all or a substantial
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portion of its assets; becomes insolvent, suspends or ceases to do business; makes an
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assignment of all or a substantial portion of its assets for the benefit of its creditors; or admits
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in writing its inability to pay its debts as they become due.
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9.3 Effect of Termination/Expiration. Upon termination or expiration of this Agreement: (i)
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the rights and licenses granted to Licensee pursuant to this Agreement automatically
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terminate; (ii) Licensee shall, within thirty (30) days, ship to YumaWorks or destroy (including
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the purging from any system or storage media) all items and information in Licensee's
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possession that are confidential or proprietary to YumaWorks or its suppliers, including but not
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limited to all Licensed Software and all copies thereof, if any, and an officer of Licensee shall
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certify in writing to YumaWorks that all such confidential or proprietary items and information
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have been returned to YumaWorks or destroyed; and (iii) all outstanding invoices for amounts
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owed to YumaWorks by Licensee shall automatically accelerate and become due and payable
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on the effective date of termination.
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9.4 Survival. The provisions of Sections 2.4, 4.2, 7, 8, 9.3, 10.1, 10.5, and 10.8 shall survive
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the expiration, cancellation, or termination of this Agreement.
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10. GENERAL PROVISIONS
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10.1 Governing Law. This Agreement shall be governed by the internal laws of the State of
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California, excluding its conflict of laws rules. The parties consent to the personal and
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exclusive jurisdiction and venue of the northern district of California federal and state courts,
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as applicable.
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10.2 Assignment. Licensee shall not assign this Agreement or any right hereunder, or
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delegate any obligation created under this Agreement to any third party without prior written
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consent of YumaWorks. YumaWorks, however, may assign this Agreement to any person or
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entity with which it has merged or which has otherwise succeeded to all or substantially all of
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the business and assets of YumaWorks, and which has assumed in writing or by operation of
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law its obligations under this Agreement. Any attempted assignment or delegation without the
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required written consent shall be null and void.
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10.3 Modification. No modification to this Agreement nor any waiver of any rights shall be
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effective unless consented to in writing and the waiver of any breach or default shall not
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constitute a waiver of any other right or of any subsequent breach or default.
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10.4 Force Majeure. Neither YumaWorks nor any of its suppliers shall be liable for any loss,
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expense, or damage caused by delays or failures in performance resulting from acts of God,
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supplier delay, or any other cause beyond the reasonable control of YumaWorks or its
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suppliers.
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10.5 Attorneys' Fees. In the event of any dispute resolution proceeding between the parties,
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the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees. A
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"prevailing party" shall mean a party who receives all or substantially all of the relief sought by
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such party.
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10.6 Severability. If any provision of this Agreement is ruled unenforceable, it shall be
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enforced to the extent permissible, the parties shall negotiate a substitute valid provision
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which most nearly effects the parties' original intent, and the remainder of the Agreement shall
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remain in effect.
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10.7 Independent Contractor. The parties are each independent contractors and not joint
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venturers, partners, agents, or representatives of the other. Neither party has any right to
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create any obligation on the part of the other party.
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10.8 Equitable Relief. Licensee acknowledges that any breach of its obligations under this
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Agreement with respect to the intellectual property rights or confidential information of
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YumaWorks will cause YumaWorks irreparable injury for which there are inadequate remedies
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at law, and therefore, YumaWorks will be entitled to equitable relief in addition to all other
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remedies provided by this Agreement or available at law.
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10.9 Notice. All notices and requests required or authorized hereunder, shall be given in
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writing either by personal delivery to the party to whom notice is given, or by registered or
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certified airmail, postage prepaid, return receipt requested. The date upon which any such
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notice is so personally delivered, or if the notice is given by registered or certified airmail, the
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date upon which it is received as set forth on the returned receipt, shall be deemed to be the
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date of such notice, irrespective of the date appearing therein.
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If to YumaWorks :
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YumaWorks, Inc.
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685 Cochran St. #160
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Simi Valley, CA 93065
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Attn: Legal Department
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Phone: 805.397-8277
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If to Licensee:
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Per the information on the Purchase Order.
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The address of the parties may be changed by notice given in accordance with this section.
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11. ENTIRE AGREEMENT. This Agreement constitutes the entire and exclusive agreement
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between the parties with respect to the subject matter hereof. All previous and
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contemporaneous discussions and oral and written agreements with respect to this subject
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matter are superseded by this Agreement.
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12. RESTRICTED RIGHTS LEGEND. This software is provided with RESTRICTED RIGHTS.
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Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in
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subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at
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DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software
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- Restricted Rights at 48 CFR 52.227-19, as applicable. The "Manufacturer" for purposes of
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these regulations is YumaWorks Inc, 685 Cochran St., #160, Simi Valley, CA, U.S.A
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