END USER LICENSE AGREEMENT for Graphity for Confluence
Version 1.1
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", "Us", or "yWorks").
By downloading, installing, or using Graphity 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.
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.
2. Definitions
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.
Graphity 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 Key means a computer-specific key for the Software that unlocks the Software after it certified that the program is original and the user authorized to use the installation of the Software.
Software Subscription means access to upgrades, renewals and support during a specified time frame (term).
3. Grant of License
Subject to the terms of this Agreement, yWorks grants you a perpetual, irrevocable (except pursuant to Clause 12 below), fully-paid, worldwide, non-exclusive, non-transferable (except pursuant to Clause 13 below) License to use Authorized Installations of the Software and allow its Associated Users the Authorized Use of the Software.
4. Software Subscription and License Renewal
Except for owners of a cost-free License for the Software, the Software Subscription will commence upon payment for and delivery of the License Key.
The initial Software Subscription term starts with delivery of the License Key to Licensee and expires after a period of one (1) year.
During the Software Subscription term, Licensee receives access to Software updates and feature upgrades for the purchased version of the Software (or the next version, at yWorks' sole discretion) as well as technical support by email (graphity-for-confluence@yworks.com).
At expiration of the Software Subscription term, the Software Subscription discontinues unless Licensee renews Software Subscription for a successive term of one (1) year by purchasing a License Renewal.
5. License Upgrade
Licensee can upgrade the number of Associated Users at any time by purchasing a License Upgrade.
6. 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.
7. 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 7(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.
8. Warranty Disclaimer
THE SOFTWARE IS PROVIDED TO YOU "AS IS" AND TO THE MAXIMUM EXTENT PERMITTED BY LAW 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.
For a period of 6 months from delivery on and during a current Software Subscription, yWorks warrants however that the Software will be free from material errors and will operate substantially in accordance with the related documentation, and that Software and services will be provided using reasonable care and skill.
yWorks agrees to pass through any warranties extended for third-party software, if any, incorporated into the Software.
9. Limitation of Liability
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.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL YWORKS BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR (II) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. YWORKS' LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO YWORKS FOR THE SOFTWARE AND SERVICES, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE YWORKS' LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YWORKS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
Any claims for damages against yWorks shall be subject to the applicable statutory limitation periods.
The liability of yWorks exclusively pursues the paragraphs above. Any further claims not explicitly granted therein are excluded.
10. Privacy Policy
Your privacy is important to us and we know that you care about your personal data and how it is used. This Privacy Policy is meant to help you understand how your personal information is processed by the Software, which personal data we collect, why we collect it and what we do with it.
Personal data means data/information about a living individual who can be identified from those data (or from those and other information either in our possession or likely to come into our possession).
Processing is any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, structuring, storage, alteration, retrieval, use, disclosure, restriction, erasure or destruction.
The User is the individual using the Software.
No personal data is made available to yWorks when you install the Software on a server.
When a license is applied to the Software, the information about a technical contact and a billing contact is made available to yWorks via Atlassian.
This information includes contact name, company name (if any), physical or email addresses, and phone numbers. Please see Atlassian's privacy policy for details (https://www.atlassian.com/legal/privacy-policy).
We process the via Atlassian shared personal data only for specific and limited purposes. We save your company contact information in the database of yWorks so we may use your email address or phone number to communicate with you, for example 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 for the Software.
The Software does not send any data or personal data from your server nor from any client browser to us or any third party with the following exception:
If enabled in the administration panel of the Software, the Software sends anonymous error reports to yWorks, including the URL from which the Software is hosted. Sending an error report is optional. Users may add a description to error reports. If the user provides personal data along with that description, this data is added to the error report and may be stored together with the report at yWorks.
The Software uses the local storage to store application specific settings. These settings do not include any personal data. These settings will only be used by the Software and are not disclosed to yWorks or any third party.
Controller for the purposes of the General Data Protection Regulation (GDPR), other data protection laws applicable in Member states of the European Union and other provisions related to data protection is:
yWorks GmbH
vor dem Kreuzberg 28
72070 Tübingen, Germany
WWW: https://www.yWorks.com
email: contact@yWorks.com
phone: +49 7071 9709050
fax: +49 7071 9709051
Each data subject may contact our data protection officer at any time with all questions and suggestions regarding data protection:
Data Protection Officer
c/o yWorks GmbH
vor dem Kreuzberg 28
72070 Tübingen, Germany
email: dpo@yWorks.com
Respecting section 8.4 (d) of the Atlassian Marketplace Vendor Agreement (https://www.atlassian.com/licensing/marketplace/publisheragreement) it shall be made clear that Atlassian is not responsible for the privacy, security or integrity of End User Data as defined in the Atlassian Marketplace Vendor Agreement section 8.4. (a) collected or processed by Licensor or by Licensor’s marketplace apps.
11. Third-party Software
The Software contains third-party software as listed on our Website at https://yworks.com/products/graphity-for-confluence/third-party-software. Third-party software is subject to the respective third-party licensor's terms of use. Your rights to use such third-party software are not restricted or modified in any way by this Agreement.
12. Term and Termination
The Graphity for Confluence license is perpetual, with the exception of a material breach by Licensee in which case the Agreement is terminated, and you lose all rights under the license.
Upon termination, 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.
Licensee agrees upon termination of this Agreement to destroy all copies of the Software in its possession.
13. 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.
14. 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.
15. 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.
16. 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.
17. Modifications or Extensions
All modifications or extensions to this Agreement need to be in writing and signed by both parties.
18. 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.
