END USER LICENSE AGREEMENT (EULA) of yFiles AJAX

Dated 20.03.2007

This 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 accompanying 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 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.

 

1. Ownership

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.

 

2. License Grant

2.1 Rights And Limitations

The following rights and restrictions apply to all license types 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 internet applications you create ("Redistributable(s)"). Redistributables include library files such as jar and DLL 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 as Redistributables.

(c) Internet applications that include or make use of the Redistributables may only be served from a limited set of internet domains or IP addresses that need to be authorized by yWorks.

(d) Your programs may not expose the functionality provided by the Software in a way that enables a third party to use these programs as a complete or partial replacement of the Software. This especially means that your programs 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 application programs permitted under this Agreement and that 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

Java byte code is the CPU-independent instruction set generated by Java compilers from the Java language. A jar file is an archive file that contains the Java byte code of Java classes and other resources. Javascript is a scripting language that allows to define functions and variables. A compressed Javascript file contains definitions of Javascript functions and variables in a concise form.

The binary license for the Software grants you the right to access the functions and variables defined in the compressed JavaScript file that comes with the Software in order to create the client part of internet applications. Furthermore it grants you the right to access the classes defined in the Java jar file that comes with the Software in order to create the server part of internet applications.

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 object code format only, for your personal internal use on one (1) server and multiple clients.

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. IMPORTANT NOTE: Upon expiration of the evaluation period, the evaluation version of the Software will stop working and you will no longer be able to access data or programs that you have created using the Software. You should therefore take precautions to avoid any loss of data that might result. If you desire to continue to use the Software following the evaluation period, you should contact yWorks or a 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 license for the Software. The license is valid for one 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 User License for the Software of his own. The Single User License is NOT a 'floating' license, that is, you cannot temporarily transfer access rights to another user. The Single User License cannot be shared or used concurrently by more than one individual developer.

With a Single Developer License you may serve internet applications that include or make use of the Redistributables from at most one (1) internet domain or IP address that is authorized by yWorks. Authorization for additional domains or IP addresses can be purchased as separate items.

2.2.3 Project License

A Project License is a binary license valid for one authorized software project. The authorized project must be a specific software project that is defined by its name and has to be specified in the License Order. A Project License grants you the right to use the Software concurrently by up to three (3) individual developers participating in the authorized project. Furthermore the Software may be used as part of an automated build process for the project.

With a Project License you may serve the internet application that includes or makes use of the Redistributables from at most two (2) different internet domains or IP addresses that are authorized by yWorks. Authorization for additional domains or IP addresses can be purchased as separate items.

2.2.4 Site License

A Site License is a binary license valid for one authorized site. The authorized site must be a specific place of business of Licensee that is defined by a physical 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 Site 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.

With a Site License you may serve internet applications that include or make use of the Redistributables from at most four (4) different internet domains or IP addresses that are authorized by yWorks. Authorization for additional domains or IP addresses can be purchased as separate items.

2.3 Source Code License

A source code license is a site license that in addition grants you the 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 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

2.5 Subscription

yWorks is not obliged to provide maintenance or support to you unless you own a subscription for the Software. Subscription includes (a) all versions and upgrades of the licensed Software released during the term, (b) technical support including standard maintenance and online support during the term, and (c) the right to renew subscription at expiration date for a renewal fee for another year.

The subscription runs for a period of twelve (12) months from effective date, provided that there is no renewal of the subscription agreement. Effective date of the subscription service is invoice date of the corresponding license.

You agree to provide yWorks with such information as yWorks may reasonably require to render its subscription services. The sole responsibility of yWorks with respect to third party software is to pass through to you any warranties extended by the third-party.

2.6 Deliverables

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.

2.8 Backups

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.

3. Services

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.

4. Disclaimer

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 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 programs, and you will remain solely responsible towards recipients of your programs for support, service, upgrades, or technical or other assistance, and such recipients of your programs are not entitled to such services or assistance through yWorks.

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. Charges and Payment Terms

Invoices are due upon receipt of invoice and without deduction. Amounts are payable as specified on the invoice or the transaction document. You agree to pay accordingly, including any late payment fee. ANY COSTS INCURRED BECAUSE OF DELAYED PAYMENT LIKE COURT AND LAWYER'S FEES OR ADMINISTRATION COSTS ARE CHARGED TO YOUR ACCOUNT.TITLE TO THE INVOICED LICENSES WILL ONLY PASS TO YOU WHEN FULL PAYMENT IS RECEIVED BY YWORKS.

Effective date of the license for the Software is receipt of license payment. If you are more than 10 working days in delay with a due payment yWorks shall be entitled to require the temporary deletion of the Software and of all programs developed using the Software. yWorks shall not be obliged to declare cancellation of the contract prior to that demand.

7. General

7.1 Privacy

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. If not expressly disagreed on your License Order, yWorks shall be entitled to name you as a reference customer for the Software.

7.2 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 T?bingen, Germany.

7.3 Assignments

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.

7.4 Remedies

Except as 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, 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 an appropriate remedy for such breach. 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.

7.5 Entire Agreement

This Agreement constitutes the entire agreement between you and yWorks with respect to the Software. It replaces all other representations. All modifications or extensions to this Agreement need to be in writing and signed by both parties.

7.6 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.