SOFTWARE LICENSE AGREEMENT for yExport
Dated Jun 29, 2009
This Software License Agreement is a legal agreement ("Agreement") between you ("You" or "Licensee", either an individual or a single entity), and yWorks GmbH ("Licensor" or "yWorks"). By downloading, installing, or using the yExport software (together with its accompanying documentation, collectively "Software"), you indicate that you read and accept the provisions of this Agreement and that you agree to be bound by all terms and conditions set forth herein.
yWorks is only willing to enter with you in this Agreement and grant you this Software License if you obtained the Software from yWorks or an yWorks' authorized reseller. If you obtained the Software from any other source you may not install or use the Software.
IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THIS SOFTWARE.
The Software is licensed to you, not sold, notwithstanding any reference herein to "sale" and "purchase". The Software and all copies thereof are proprietary to yWorks and title thereto remains in yWorks, at all times. You agree that the Software contains proprietary information, including trade secrets, know-how and confidential information (the "Confidential/ Proprietary Information"). The Software is protected by international copyright laws, the copyright laws of Germany, and other intellectual property rights. All rights in and to the Software not expressly granted herein are reserved by yWorks. There are no implied licenses under this Agreement.
If the License for the Software is purchased by you with any intent to breach yWorks' Intellectual Property Rights, especially with the intent to reverse engineer, decompile, unauthorized transfer Proprietary Information, to include any exposed methods or source code where provided, no licensed right of use shall exist, and any products created as a result shall be judged illegal by definition of all applicable law. Any sale or resale of Proprietary Information or created derivatives so obtained will be prosecuted to the fullest extent of all local, federal, and international law. Violators will be prosecuted to the maximum extent possible.
yWorks has full power and authority to grant the Licensee the rights granted herein. yWorks warrants that the performance of the terms herein and of yWorks' duties to the Licensee hereunder will not breach any separate agreement or arrangement by which yWorks is bound. yWorks warrants that the Software delivered to the Licensee hereunder do not violate or infringe any patent, copyright, trade secret or other proprietary right of any third party, and that yWorks is not aware of any facts upon which such a claim for infringement could be based.
Non-proprietary supporting software and/or resources provided to Customer in connection with the Software are licensed or sublicensed to you pursuant to the terms and conditions of the applicable license(s) provided with same.
2. License Grant
2.1 Rights and Limitations
The following rights and restrictions apply to all Licenses for the Software granted to you under this Agreement:
(a) You may not sell, rent, loan, or otherwise encumber or transfer the Software in whole or in part, to a third party.
(b) The Software may include certain files intended for distribution by you to the users of the software applications that you create. These files called Redistributable(s) include library files such as Jar (Java archive) files. You may not distribute any files, except those that yWorks has expressly designated as Redistributable. Developer Guide of Software (if any) or any other documents (such as API doc) which are intended to teach you how to use the Software, and sample code are not considered Redistributable(s).
(c) You are entitled to deliver Redistributables as part of your own software applications if and only if the Redistributables have been protected by obfuscation via an obfuscator prior to distribution. Minimum requirement on the obfuscation process is that all essential class, method, and field names of the classes contained in the Software Redistributables are obfuscated. With the obfuscation it shall no longer be possible to use the functionality of the Redistributables via their public API. The obfuscation of the Redistributables may be performed by any obfuscator fulfilling the minimum requirement as defined above.
(d) Your own software applications may not expose the functionality provided by the Software in a way that enables a third party to use these applications as a complete or partial replacement of the Software. This especially means that your applications may not expose an API to your customers that will allow them to access functionality provided by the Software. Redistributables may only be distributed with and for the sole purpose of executing applications permitted under this Agreement and which you have created using the Software.
(e) You may not remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of yWorks or its suppliers on, in, or displayed by the Software.
(f) You may not reproduce or use the Software except as expressly authorized under this Section 2.
2.2 Binary License
The Binary License for the Software grants you the right to use the Software as Java byte code, and to develop software applications using the Software.
You are not allowed to reverse engineer, decompile, or otherwise attempt to derive the source code of the Software, create derivative works, modify, translate, or disassemble the Software, unless and only to the extent that such activity is expressly permitted by applicable law or by this Agreement.
2.2.1 Evaluation License
If you received the Software on an evaluation basis ("Evaluation License"), then the evaluation version of the Software is licensed to you for evaluation purposes only. The Evaluation License is a Binary License. The evaluation period is up to thirty (30) days from the date of installation or such shorter time period as set forth on the Software's packaging, license certificate, or accompanying documentation. During the evaluation period yWorks grants you a personal, non-transferable, non-exclusive limited license to install and execute the Software, in byte code format only, for your personal internal use.
Upon completion of the evaluation period all copies of the Software and all data derived from the Software have to be completely deleted unless you acquire a regular license for the Software. If you desire to continue to use the Software following the evaluation period, you should contact yWorks or an yWorks' authorized reseller to order a regular license to use the Software.
2.2.2 Single Developer License
A Single Developer License is a binary, non-exclusive, perpetual, royalty free license for the Software. The License is valid for one (1) individual developer who has to be specified in the License Order. The Single Developer License grants the individual developer the right to install and use multiple copies of the Software. Each individual developer with access to the Software needs a Single Developer License for the Software of his own. The Single Developer License cannot be shared or used concurrently by more than one individual developer. The Single Developer License is NOT a 'floating' license, that is, you cannot temporarily transfer access rights to another user. You may not transfer the Single Developer License to another developer except for the named developer is leaving the company or the team that is using the Software. yWorks has to be notified in writing and provided with the name of the new-assigned individual developer.
2.2.3 Project License
A Project License is a binary, non-exclusive, perpetual, royalty free license for the Software within one named application ("Authorized Application" or "Authorized Project"). The Authorized Application has to be specified in the License Order. The Project License covers new versions and different editions of the Authorized Application as long as they are in the evolutionary line of it.
The Project License grants you the right to use the Software concurrently by up to three (3) individual developers participating in the Authorized Project. For an additional License fee additional developer seats may be added to a Project License at any time. A Project License also allows you to use the Software as part of an automated build process for the Authorized Project.
In case the Authorized Project changes its name, yWorks has to be notified in writing if the Project License shall cover the new-named application. In such cases, yWorks reserves the right to ask for a technical description that allows yWorks to verify that the newly named Authorized Project is a continuation of the Authorized Project.
2.2.4 Site License
A Site License is a binary, non-exclusive, perpetual, royalty free license for the Software that is valid for one authorized site. The authorized site must be a specific place of business of Licensee that is defined by its mail address and has to be specified in the License Order. If projects that are hosted at different or multiple sites need to access the Software, each such site requires a separate License for the Software. A Site License grants you the right to share or use the Software concurrently by multiple individual developers at the authorized site. Furthermore, it can be used with multiple projects hosted at this site.
2.3 Source Code License
A Source Code License is available as Site or Project License with the additional right to use and modify the source code of the Software.
yWorks shall retain all right, title, and interest in and to all updates, modifications, enhancements and derivative works, in whole or in part, of the Software source code created by you, including all copyrights subsisting therein, to the extent such modifications, enhancements or derivative works contain copyrightable code or expression derived from the Software source code.
You may not distribute, disclose, or otherwise make available the Software source code, or any portion thereof, or any modified version or derivative work thereof to any third party without the express prior written consent of yWorks.
Under no circumstances may the source code be used in whole or in part as the basis for creating a product that provides the same, or substantially the same, functionality as the Software.
2.4 Academic License
If the Software is labeled or provided to you as "Academic License", the following restrictions to the license definitions 2.1-2.3 apply: An Academic License restricts the use of the Software to non-commercial purposes (research, teaching, university projects, courses and application development). Any software application developed under an Academic License may not be licensed in whole or in part, to a third party being a commercial institution or a party that commercially uses the Software. Hereby, commercial institution is defined to be any company or organization with profit interest, commercial use is defined as any use within a commercial institution, any use with profit interest or any use within a cooperation of two or more parties with at least one party having a profit interest.
yWorks is not obliged to provide Software maintenance or support services to you unless you own a current Software maintenance and support service package ("Subscription"). You can enter into a Subscription along with the purchase of the Software License ("Corresponding License"). Subscription is rendered for an initial term of twelve (12) months from effective date ("Term"), provided that there is no renewal of the Subscription. Effective date of the Subscription is the invoice date of the Corresponding License.
Subscription includes (i) all versions and upgrades of the Corresponding License released during the Term, (ii) email based technical support for the Corresponding License and access to online support material during the Term, and (iii) in case of a Subscription renewal for another year, the right to renew your Subscription at expiration date for just a renewal fee.
yWorks maintains qualified personnel to provide timely and knowledgeable support service.
yWorks will only support the most current maintenance release of major versions of the Software. Six (6) months after the release of a new major version, yWorks will stop maintaining and supporting an older major version of the Software.
yWorks provides Subscription Customer with bug fixes or workarounds in case of Software bugs. As a Subscription Customer, you agree to provide yWorks with such information as yWorks may reasonably require for fulfilling its support services. A bug report must be accompanied by a self-contained source code sample, that lets yWorks easily reproduce the problem. With respect to third party software support, the sole responsibility of yWorks is to pass through to you any warranties extended by the third-party.
yWorks may cancel any Subscription renewal order received at the end of the initial term for any reason, including but not limited to circumstances where the Software has become obsolete or has been modified.
yWorks shall provide you with the electronic documentation and with the licensed Software (Internet delivery). The Software shall be deemed accepted after a period of fifteen (15) days following delivery of the Software.
2.7 Upgrade Eligibility
As Licensee of the Software you are eligible to receive cost free upgrades in case they belong to the generation of the Software you have licensed. The generation of the Software is recognizable by the leading two numbers of the Software version number string (for example Software version 5.0.1 is of generation 5.0). Free trial licenses are not eligible for free upgrading. Upgrades to the next generation are available for an upgrade price.
You may make a reasonable number of backup copies of the Software during the term of this Agreement as long as you do not use such backup copies for any purpose other than to replace the original copy of the Software provided to you by yWorks if such copy is damaged or destroyed.
There are no services provided under this Agreement. You are responsible for installing the Software on your computers as permitted under this Agreement. Support, maintenance and other services must be purchased separately.
THE SOFTWARE IS PROVIDED "AS IS" AND TO THE MAXIMUM EXTENT PERMITTED BY LAW WITHOUT WARRANTY OF ANY KIND. There is no warranty that the product will be error-free or will function without interruption.
yWorks warrants however that the Licensed Software will be free from material errors and will operate substantially in accordance with the related documentation for a period of six months. Licensee's sole remedy and Licensor's sole and exclusive liability for the breach of this warranty shall be repair or replacement of the Licensed Software within thirty (30) days from being notified of such breach, or, if the Licensor deems such repair or replacement impossible within the foregoing thirty (30) days, refund fees previously paid to Licensor by Licensee for the previous six months period.
yWorks makes no other warranties, either Express or Implied, regarding the Software, including but not limited to its merchantability or its fitness for any particular purpose. Licensee takes note of the fact that the Software is neither developed nor intended for high risk activities such as in the operation of nuclear facilities, aircraft navigation, traffic control, direct life support machines, or weapon systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. Any liability therefore is excluded.
yWorks provides no warranty to third parties receiving your software applications, and you will remain solely responsible towards recipients of your software applications for support, service, upgrades, or technical or other assistance, and such recipients of your software applications are not entitled to such services or assistance through yWorks.
yWorks agrees to pass through any warranties extended for third-party software, if any, incorporated into the Software.
5. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY LIABILITY IS EXCLUDED. In no event will yWorks be liable to any party for any indirect, incidental, consequential, exemplary, special or punitive damages, including any loss of profit, revenue, business opportunity or data, arising from or relating to this Agreement or the Software, whether in contract, in tort or otherwise, even if yWorks knew, should have known or has been advised of the possibility of such damages. yWorks will not support or have any liability for use of reformatted and recombined Redistributables. yWorks' total cumulative liability arising from or related to this Agreement or the Software will not exceed the fees actually paid by you under this Agreement.
6. Overdue Payment
If you are more than 30 working days in delay with a due payment yWorks shall be entitled to require the temporary deletion of all instances of the Software until payment has been made. yWorks shall not be obliged to declare cancellation of the contract prior to that demand.
You agree that - in conjunction with the business you have been doing with yWorks and in accordance with the law - your company and personal data will be saved and processed in the database of yWorks. We may use your email address or phone number to communicate with you, for example to provide your order status, to respond to queries, to notify you of a new release of the product you purchased or to remind you of the expiry of a service agreement with us.
If not expressly disagreed on your License Order, yWorks shall be entitled to name you as a reference customer.
8.1 Applicable Law and Court of Jurisdiction
This Agreement is made and shall be construed in accordance with the laws of Germany. Court of Jurisdiction is Tübingen, Germany.
yWorks also reserves the right to start legal action at the court of jurisdiction at your legal business domicile or place of residence. The parties agree that the United Nations Convention for the International Sale of Goods shall not apply in any way to this Agreement and the services contemplated herein.
Waiver of any breach or failure to enforce any Section of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur.
You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement (including your licenses with respect to the Software) to any third party without the prior written consent of yWorks, and any attempted assignment without such written consent shall be null and void. You expressly agree that yWorks may assign its rights to any third party any time. In case of an assignment you are entitled to terminate this Agreement. In the event of any such termination, you will not be entitled to any refund of the fees paid by you hereunder. Irrespective of the aforesaid, yWorks may delegate its obligations under this Agreement without restrictions.
8.4 Remedies, Term and Termination
Except if otherwise provided herein, the parties' rights and remedies under this Agreement are cumulative.
You acknowledge that the Software contains valuable trade secrets and proprietary information of yWorks and its suppliers, and that any actual or threatened breach of this Agreement by you will constitute immediate, irreparable harm for which monetary damages might be an inadequate remedy, and that injunctive relief is necessary for such breach. Your rights under this Agreement will terminate immediately without notice from yWorks if you materially breach it. Upon this termination, you will cease use of, and destroy, the Software and confirm compliance in writing to yWorks. All sections of this Agreement which by nature should survive, will survive termination of the Agreement, including, but not limited to, payment terms, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated.
If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
8.5 Modifications or Extensions
All modifications or extensions to this Software License Agreement need to be in writing and signed by both parties.
8.6 Construction Clause
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
Copyright (c) 2009 yWorks GmbH. All rights reserved.