Dated September 1st, 2017
This is a legal agreement ("Agreement") between yWorks GmbH ("yWorks" or "Licensor") and the licensee ("you" or "the Licensee").
By downloading, installing, or using the yFiles Cytoscape App (together with its accompanying documentation and support material, 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 a Software license ("License") if you obtained the Software from yWorks or a yWorks' authorized distributor. If you obtained the Software from any other source you may not install or use the Software.
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. YWORKS LICENSES THE SOFTWARE ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT WISH TO BECOME A PARTY OF THIS AGREEMENT AND BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, DO NOT INSTALL OR USE THIS SOFTWARE AND DESTROY THE SOFTWARE AND ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION.
The terms of this Agreement apply to the Software provided with this Agreement, all updates or upgrades to the Software that may be provided later by yWorks as part of any maintenance, technical support, or other services program for the Software, unless such update or upgrade comes with separate Software License terms. Software does not include any certain third party software that yWorks provides to you but that is subject to separate License terms either presented at the time of installation or otherwise provided with the Software.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind such entity to these terms.
All modifications or extensions of this Agreement need to be in writing signed by both parties.
In the event of conflict or inconsistency among incorporated terms and stipulations within the Agreement, the following order of precedence shall apply:
(1) Individual agreements, signed by both parties
(2) yWorks product-related specific Software License Terms
(3) yWorks Sales and Delivery Terms
(4) Other documents (e.g. service specifications, statements of work, exhibits, attachments)
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. Except as expressly allowed by this Agreement, Licensee shall not use or disclose any Software technology, idea, algorithm or information except to the extent Licensee can document that it is generally available for use and disclosure by the public without any charge or license.
If the License for the Software is obtained 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.
The following rights and restrictions apply to the License for the Software granted to you under this Agreement:
(a) You are granted a non-exclusive and non-transferable right to install one copy of the Software and use it as an App for Cytoscape. The Software may not be used as part of an automated process or outside of the Cytoscape desktop application. All usage of the Software must be interactive by a human user.
(b) You are not allowed to reverse engineer, decompile, de-obfuscate, un-jar or otherwise attempt to derive the de-obfuscated 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.
(c) You may not sell, rent, loan, or otherwise encumber or transfer the Software in whole or in part, to a third party, except as expressly granted below.
(d) 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.
(e) You may not reproduce or use the Software except as expressly authorized under this Section 2.
Licensee acknowledges that Software furnished hereunder is under test and may be defective or time-limited. No claims whatsoever can be made on yWorks based on any expectation about the Software.
You may make one backup copy of the Software during the term of this Agreement as long as you do not use such a backup copy 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 computer as permitted under this Agreement.
THE SOFTWARE IS LICENSED TO YOU "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. The Licensee is solely responsible for determining the suitability of the Software and accepts full responsibility and risks associated with the use of the Software.
yWorks makes no other warranties, either express or implied, regarding the Software, including but not limited to 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 is not required to provide maintenance or support to the Licensee.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YWORKS ACCEPTS NO FURTHER LIABILITY. In no event will yWorks or any of its licensors or distributors or any of its and their directors, officers, employees and agents 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.
To the extent the foregoing limitation of liability is not capable of being excluded by applicable law, the sole liability of yWorks to you under or in connection with this Agreement shall be limited to the total amount paid to Licensor over the six months period preceding the claim giving rise to liability.
The Software is not available to those not permitted by law to have access to the Software.
The Software may insert some markers into any output files to identify that the files are generated by the Software.
The Software may include analytics features to analyze data that help Licensor improve the included layout algorithms, user experience, and products and services in general. These analytics features may sent anonymized usage statistics to Licensor, including but not limited to information about what Software features are used and what types of graphs are laid out, as well as anonymized graph data, including but not limited to label texts, images, or icons that are replaced with placeholder data. The provided data do not contain or associate with any personal information, they do not allow to reconstruct the original contents and Licensor does not use them to identify any individual patterns of use or behavior.
To the extent the Software is bundled with third party software programs; these third party software programs are governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms of any such third party software.
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.
Failure of either party to insist on strict compliance with any of the terms and conditions of this Agreement shall not be deemed a waiver of such terms and conditions, or of any similar right or power hereunder at any subsequent time.
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, since the software also contains confidential information, and any attempted assignment without such written consent shall be null and void. yWorks’ consent to an assignment shall not be unreasonably withheld. 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.
The Licensee may terminate this Agreement at any time by destroying all copies of the Software in possession.
If the Licensee fails to comply with any term of this Agreement, this Agreement is terminated and the Licensee has no further right to use the Software.
You acknowledge that the Software contains valuable trade secrets and proprietary information of yWorks and its suppliers, and that any actual or threatened material 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.
On termination, the Licensee shall have no claim on or arising from the Software and will cease use of, and destroy, the Software. All Sections of this Agreement which by nature should survive, will survive termination of the Agreement, including, but not limited to warranty disclaimers, confidentiality terms, and limitations of liability. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated. The termination of this Agreement will not constitute a waiver of any fees, amounts or charges due to either party.
Except if otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties.
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.
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.