This End User 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 yWorks Diagrams for Confluence (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.
IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE OR PERMIT THE USE OF THE 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.
yWorks or Licensor means yWorks GmbH, Vor dem Kreuzberg 28, 72070 Tübingen, Germany.
Licensee means the individual or a single entity that has licensed the Software under the terms and conditions of this Agreement.
Confluence is Atlassian's web based collaboration software and enterprise wiki for intranets and knowledge management.
yWorks Diagrams for Confluence (the Software) is yWorks' diagramming editor plugin that runs within Confluence.
Associated Installation means a single installation of a copy of the Software plugged into a single instance of Confluence which runs within a J2EE application server on a single physical server ("Server Node"), which is either stand alone or within a connected cluster.
Associated Users means the total number of persons or user accounts the associated instance of Confluence is licensed for.
Authorized Installations means the defined number of copies or instances of the Software that may be installed and used by Licensee for use by the Associated Users, limited to the number of Associated Installations and Associated Users, as designated in the quote/receipt/invoice issued by yWorks.
Authorized Use means access to and use of the Software functionality by Associated Users for the purpose of creating diagrams within the Confluence enterprise wiki.
License Fee is a one-time fee paid by Licensee to yWorks for the use of the Software in accordance with the terms of this Agreement.
3. Grant of License
Subject to the terms of this Agreement, yWorks hereby grants to Licensee a perpetual, irrevocable (except pursuant to Clause 14 below), fully-paid, worldwide, non-exclusive, non-transferable (except pursuant to Clause 15 below) License to use Authorized Installations of the Software and allow its Associated Users the Authorized Use of the Software.
Except as described in this Agreement and save as provided in Clauses 10 and 11 below, the Software is provided on an "as is" basis and to the maximum extent permitted by law comes without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose. There is no warranty that the product will be complete or error-free or that the Software will function without interruption.
5. License Key and Software Download
Upon payment of the license fees for the Software, Licensor will make the License Key and - if required - access to the Software download available to Licensee.
6. Software Service and License Renewal
Except for owners of a cost free Associated Installation of Confluence the Software Services will commence upon delivery of the License Key.
The initial Software Service term starts with delivery of the License Key to Licensee and expires after a period of one (1) year.
During the Software Service term, Licensee receives access to Software updates and feature upgrades as well as technical support as provided through Licensor's website http://www.yworks.com/diagramsforconfluence/support.
At expiration of the Software Service term, Software Service discontinues unless Licensee renews Software Service for a successive term of one (1) year by purchasing a License Renewal. Subsequent License Renewal will commence at the expiration date of the previous Software Service term, regardless of when the License Renewal is purchased.
7. License Upgrade
Licensee can upgrade the number of Associated Users at any time by purchasing a License Upgrade. All data is seamlessly upgraded. Upgrades include one (1) year of Software Service commencing from the date the License Upgrade has been purchased. This will override any existing Software Service or License Renewal period.
8. Unauthorized Use or Distribution
Licensee may not, whether through deliberate or negligent act or act of omission, distribute or cause the distribution of the Software to any third party.
Licensee must ensure that only Associated Users gain access to the Software for Authorized Use.
Licensee shall promptly advise yWorks if Licensee becomes aware of any unauthorized use or distribution of the Software.
If yWorks reasonably believes that the Software has been distributed to or obtained by a third party outside the scope of this Agreement and in the sphere of responsibility of Licensee, yWorks shall have the right to request a certificate of compliance signed by an officer of Licensee and executed by Licensee's auditor at Licensee's cost that verifies Licensee's compliance with this Agreement. If any such audit reveals unauthorized use or distribution, Licensee shall reimburse Licensor for the License Fee Licensee should have paid for to comply with this Agreement.
9. License Restrictions
The following restrictions apply to the use of the Software as granted to Licensee under this Agreement. Under no circumstances shall Licensee:
(a) decompile, reverse engineer, disassemble, analyze, modify, adapt, convert, create derivative works from, or otherwise attempt to derive, the Software code;
(b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Software or any data/information provided to the Licensee through the Software to another person (except that nothing in Clause 9(b) is intended to prevent Associated Users undertaking Authorized Use), vary or amend the Authorized Use without yWorks' prior written approval;
(c) remove, alter, or obscure any confidentially or proprietary notices (including copyright and trademark notices) of yWorks or its suppliers on, in, or displayed by the Software. In addition, the Software may include license protection mechanisms that are designed to manage and protect the intellectual property rights of yWorks. Licensee must not modify or alter those features to try to defeat the rules for using the Software that the license protection mechanisms are designed to enforce.
If you downloaded the Software for evaluation purposes only, 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.
10. Infringement Indemnification
(a) yWorks shall, at its own expense, defend, indemnify, hold Licensee and its directors, officers, employees and other agents (collectively, "Licensee Indemnitees") harmless, from and against any claims or suits made or brought against a Licensee Indemnitee alleging that the Software as delivered hereunder and solely when used within the scope of this Agreement infringe any third-party (i) patents in the U.S., European Union, Switzerland, Japan, Canada, or Australia or other countries mutually agreed in writing, (ii) copyrights or trade secrets worldwide, or (iii) registered trademark rights in the U.S., European Union, Switzerland, Japan, Canada, or Australia (collectively, "IPR Claims"); provided, however, that: (i) Licensor has been promptly notified in writing by Licensee of any such IPR claim, (ii) Licensor is permitted to direct the defense or settlement negotiations, (iii) Licensee did not agree to a settlement without Licensor's prior written consent, (iv) Licensee renders reasonable assistance and information as required. Licensor will pay any costs, damages and reasonable attorneys' fees attributable to or arising out of such IPR claim. The liability of yWorks exclusively pursues the paragraphs above. Any further claims not explicitly granted therein are excluded and this is the exclusive remedy of Licensee for any infringement of IPR by the Software and this Agreement. Deviations thereof solely apply if after the applicable mandatory law the liability may not be excluded or limited.
(b) In the event that yWorks reasonably believes that the Software may be subject to an IPR claim, yWorks may, at its own option, either (i) procure for Licensee the right to use the Software free of any liability, (ii) modify the infringing item so that it no longer infringes but remains substantially functionally equivalent, or (iii) refund any License Fees related to this Software paid by Licensee and terminate this Agreement as to the infringing item.
(c) Notwithstanding the stipulations above yWorks shall have no liability for any infringement to the extent it is arising from (i) the use of other than a current unaltered release of the Software, if the infringement would have been avoided by the use of the then-current release, and if Licensor has provided such current release to Licensee, (ii) the integration or combination of the Software with any other software, services, materials or products not integrated or combined by Licensor, if the infringement would have been avoided in the absence of such integration or combination, (iii) modifications to the Software made by anyone other than Licensor, including, but not limited to, Modifications made by the Licensee.
(d) To the extent an IPR Claim is excluded from yWorks' defense obligation, Licensee will at its own expense, defend, indemnify, hold Licensor harmless against any action brought against yWorks provided, however, that (i) yWorks has promptly notified Licensee in writing of any such IPR claim, (ii) Licensor did not enter into a settlement without Licensee's prior written consent, (iii) Licensor renders reasonable assistance and information as required. Licensee shall have sole control of any such action and settlement negotiations, and Licensee will pay any costs, damages and reasonable attorneys' fees attributable to or arising out of such IPR claim. yWorks has the right to assume control of such a defense or settlement, provided however, that Licensee will have no obligation to pay the costs and expenses of such yWorks-controlled defense or settlement if Licensee did not breach its own defense and settlement obligations as stipulated in the above paragraph. The liability of Licensee for third-party IPR claims related to Licensee modifications or combinations or use of a non-current release exclusively pursues the paragraphs above. Any further claims not explicitly granted herein are excluded and this is the exclusive remedy of Licensor for such claims.
11. Limitation of Liability
Except for each party's obligation to indemnify for certain third-party claims under Clause 10 or breach of Clauses 8 ("Unauthorized Use or Distribution") and 9 ("License Restrictions"), neither party nor its suppliers shall have any liability for incidental, consequential, indirect, special or punitive damages or liabilities of any kind or for loss of revenue, loss of business, or other financial loss arising out of or in connection with this Agreement or the Software, regardless of the form of action, whether in contract, tort (including negligence), or otherwise, even if such party is advised of or aware of the possibility of such damages, including, without limitation: (a) any use or reliance on the Software by a third party (including the form and content of errors in and/or omissions from any information contained in the Software); (b) any delay, interruption, or other failure in the provision of the Software; or (c) any change in the form or content of the Software. Except for each party's indemnification obligations, in no event will either party's liability under any claims arising out of this Agreement exceed the fees paid by Licensee under this Agreement. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law.
To the extent the foregoing limitation of liability or the warranty disclaimer in Clause 4 are not allowed by applicable law, yWorks warrants that the licensed Software will be free from material errors and will operate substantially in accordance with the related documentation for a period of one (1) year 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.
12. Privacy and Marketing
(a) 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.
(b) yWorks shall have the right to include Licensee as a customer in its promotional material related to the Software. Licensee can deny yWorks this right at any time by submitting a written request via email to sales@yWorks.com, asking to be excluded from Software promotional material. Confirmation of such request must be received via reply email for this exclusion to be effective; allow thirty (30) days for the removal of any reference to the Licensee from promotional material.
13. Third-party Software
14. Term and Termination
This Agreement will be effective as of the Effective Date defined in Clause 18 and will remain effective until terminated by either party as set out below.
Licensee may terminate this Agreement at any time by destroying all copies of the Software in its possession.
Either party hereto may terminate this Agreement if the other party commits a material breach and such party does not cure such material breach within thirty (30) days of written notice of such breach.
Upon the termination of this Agreement, all rights and obligations of Licensee and Licensor shall cease except all stipulations of this Agreement which by nature should survive termination of this Agreement, will survive, including, but not limited to, payment obligations, warranty disclaimers, and limitations of liability. Paid License Fees are non-refundable.
Licensee agrees upon termination of this Agreement to destroy all copies of the Software in its possession.
15. No Assignment or Amendment
Licensee may not amend this Agreement without prior written consent of yWorks. Licensee may assign this Agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, yWorks is notified in writing within ninety (90) days of the closure of such transaction. If Licensee merges into or with a direct competitor of yWorks, as determined in yWorks sole discretion, then this Agreement will automatically terminate as of the effective date of such merger. yWorks may assign its rights and obligations under this Agreement without consent of Licensee.
16. 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.
17. Attorneys Fees
In the event of litigation, legal action, or arbitration relating to the subject matter of this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred in connection with same.
18. Effective Date
This Agreement takes effect with the date that yWorks processes payment of the License Fee from Licensee.
19. No Waiver
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.
20. Modifications or Extensions
All modifications or extensions to this Agreement need to be in writing and signed by both parties.
21. 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.
Exhibit A - Included Open Source Software