Lyatiss, Inc. End-User Licensing Agreement
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THE CLOUDWEAVER SENSORS SOFTWARE. BY INSTALLING AND USING THE SOFTWARE, YOU AGREE ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE AND WHO IS BECOMING A PARTY TO THIS LICENSE AGREEMENT (“THE COMPANY”) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE.
This is an agreement entered into by and between you (the “Company”) and Lyatiss, Inc. and its subsidiaries (“Lyatiss”). This Agreement states the terms and conditions upon which Lyatiss offers to license the CloudWeaver® Sensor software provided in this package together with all related documentation and accompanying items including, but not limited to, the executable programs, drivers, libraries and data files associated with such programs (collectively, the “Software”).
Affiliate means a company which is controlled, under common control or controlling the Company during the period of such control. For the purposes of this Agreement, “control” shall mean ownership, directly or indirectly, of more than 50% of the shares in the Company (or other voting securities) which vote for the election of the board of directors or other managing body of the Company.
End User means an employee, contractor or agent of the Company and its Affiliates authorized by the Company to use the Software as per the terms of this Agreement.
OEM Distribution means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premise application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.
Protected Code means source code contained within the Software that is protected against access by Lyatiss and is not accessible under this Agreement.
1. Grant of Rights
For the term of this Agreement and subject to the Company’s payment of the license fees as defined below Lyatiss grants the Company a non-exclusive, non-transferable, non-sub-licensable right to use the Software only for the Company’s own internal use in connection with the Company’s use of the CloudWeaver® cloud network services and limited to the number of End Users and units for which the Company has paid the applicable license fee for the CloudWeaver® service.
2. Company’s Responsibility for End Users
The Company shall be responsible for any act or omission of all End Users and for their compliance with all of the terms of this Agreement. Any action or breach by any of the Company’s employees, contractors, agents or Affiliates shall be deemed an action or breach by the Company of this Agreement and the Company hereby indemnifies and holds Lyatiss harmless from any and all such breaches of this Agreement. The Company waives all of those defenses that the Company may have in law or otherwise which may be raised to avoid liability should the Company not be liable for its employees, contractors’, agents’ or Affiliates’ acts, omissions and non-compliance with the terms of this Agreement.
3. Delivery and Acceptance of the Software
The Software shall be deemed accepted once the Company has successfully activated the CloudWeaver® Service and installed the Software.
The Company shall not, directly or indirectly: (i) remove or alter any copyright, trademark or proprietary notice in the Software; (ii) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (iii) reverse engineer, decompile or modify any protected code which forms part of the Software; (iv) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with Lyatiss; (v) redistribute the Protected Code; (vi) use and or modify the Software to develop a competitive product; and (vii) commit any act or omission the likely result of which is that Lyatiss’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Lyatiss’s interests.
The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Lyatiss. The Company must not modify or alter those features to try to defeat the Software use rules that the license protection mechanisms are designed to enforce.
Notwithstanding anything to the contrary in this Agreement, during the period of this Agreement the Company may continue to use the Software initially provided under this Agreement with the source code and license key and use differing databases, web servers or operating systems than the database, web server or operating system initially selected by the Company on installation of the Software at no charge.
Lyatiss and its licensors shall own all right, title, and interest to the Software, technology, information, code or software provided to Company, including all portions, copies or modifications thereof. Except as expressly provided herein, no licenses of any kind are granted hereunder, whether by implication, estoppel, or otherwise.
Lyatiss reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Lyatiss and/or its licensors own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. The Company may not remove the copyright notice from any copy of the Software or any copy of the written materials, if any, accompanying the Software.
TRANSFER OF LICENSE
The Company may not transfer its license in terms of this Agreement to any external third parties.
LIMITATIONS ON USING, COPYING, AND MODIFYING THE SOFTWARE
Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where the Company acquired the Software, it may not use, copy or modify the Software. Nor may the Company sub-license any of its rights under this Agreement.
DECOMPILING, DISASSEMBLING, OR REVERSE ENGINEERING
The Company acknowledges that the Software contains trade secrets and other proprietary information of Lyatiss and its licensors. The Company may not decompile, disassemble or otherwise reverse engineer the Software, or engage in any other activities to obtain underlying information that is not visible to the user in connection with the normal use of the Software.
In particular, the Company agrees not for any purpose to transmit the Software or display the Software’s object code on any computer screen or to make any hardcopy memory dumps of the Software’s object code. If the Company believes that it requires information related to the interoperability of the Software with other programs, it shall not decompile or disassemble the Software to obtain such information, and it agrees to request such information from Lyatiss at the address listed below. Upon receiving such a request, Lyatiss shall determine whether the Company requires such information for a legitimate purpose and, if so, Lyatiss will provide such information to the Company within a reasonable time and on reasonable conditions.
In any event, the Company will notify Lyatiss of any information derived from reverse engineering or such other activities, and the results thereof will constitute the confidential information of Lyatiss that may be used only in connection with the Software.
DURATION AND TERMINATION
The license granted to the Company is effective for so long as the Company continues to use the CloudWeaver® service pursuant to the Terms and Conditions of Use of that product. The license will also terminate automatically without any notice from Lyatiss if the Company fails to comply with any term or condition of this Agreement. Upon termination, Lyatiss may also enforce any rights provided by law. The provisions of this Agreement that protect the proprietary rights of Lyatiss will continue in force after termination.
Software Maintenance includes Lyatiss’s providing to the Company of updates and/or enhancements of the Software made generally available to customers from time to time, and online technical support (and where applicable, phone support) to one Company-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Software (excluding any form of on-site visits by Lyatiss personnel or contractors).
Lyatiss will make commercially reasonable best efforts to remedy defective code and to release these fixes as updates according to Lyatiss’s product roadmap.
DISCLAIMER OF ANY WARRANTY
Lyatiss does not warrant that the functions contained in the Software will meet the Company’s requirements or that the operation of the Software will be correct, uninterrupted or error-free. Lyatiss provides evaluation copies of the Product so that customers can assess the Product.
THE SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
The Company assumes responsibility for the support and fault-finding of any modifications made to the Software, or merger and integration undertaken with or between any other program or code.
The Company assumes full responsibility for the selection of the Software to achieve its intended results, and for the installation, use and results obtained from the Software. The Company also assumes the entire risk as it applies to the quality and performance of the Software. Should the Software prove defective, the Company (and not Lyatiss, or its distributors or dealers) assumes the entire cost of any and all necessary servicing, repair or correction.
Some countries/states do not allow the exclusion of implied warranties, so the above exclusion may not apply to the Company. Lyatiss disclaims all warranties of any kind if the Software was customized, repackaged or altered in any way by any third party other than Lyatiss.
During any term of this Agreement, if any portion of the Software is held by a court of competent jurisdiction to infringe any third party intellectual property rights and the Company incurs a liability or expense as a result of such holding, then the Company’s sole remedy shall be, and Lyatiss will, at its option: (i) obtain the right for the Company to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component, or (iv) terminate all of the Company’s rights and licenses under this Agreement.
Upon written consent of the Company, Lyatiss may include the Company as a customer in promotional material for the Software or for Lyatiss. Upon such consent, the Company will be deemed to grant to Lyatiss a non-transferable, non-exclusive, license to reproduce and display its logos, trademarks, trade names and similar identifying material so that Lyatiss may refer to the Company as a user of the Software should Lyatiss so desire, such as on the Lyatiss website, in press releases and in other marketing materials.
If the Company distributes the Software in violation of this Agreement, it hereby indemnifies, hold harmless and defends Lyatiss from and against any and all claims or lawsuits, including attorney’s fees and costs that arise, result from or are connected with the use or distribution of the Software in violation of this Agreement.
LIMITATION OF REMEDIES AND DAMAGES
In no event will Lyatiss or its licensors be liable for any indirect, incidental, special or consequential damages, or for any personal injury or bodily injury (including death) to any persons caused by Lyatiss’s negligence, or for any lost profits, lost savings, loss of use, lost revenues or lost data arising from or relating to the Software or this Agreement, even if Lyatiss or its licensors have been advised of the possibility of such damages. In no event will Lyatiss’s liability or damages to the Company or any other person ever exceed the amount paid by the Company to use the CloudWeaver® service, regardless of the form of the claim.
Some countries/states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to the Company.
GOVERNMENT RESTRICTED RIGHTS
Programs delivered to the U.S. Defense Dept. are delivered with Restricted Rights and the following applies: “Restricted Rights Legend: Use, duplication or disclosure by Government is subject to restrictions as currently set forth in subparagraph (c)(1)(ii) of DFARS 252-227-7013, Rights in Technical Data and Computer Software (October 1988). Software manufacturer is Lyatiss, Inc., 295N Bernardo, Mountain View, CA 94043. Programs delivered to a U.S. Government Agency not within the Defense, Dept. are delivered with “Restricted Rights” as defined in FAR 52.227-14, Rights in Data – General, including Alternate III (June 1987).
The Contractor/Manufacturer for the Software is:
295 N Bernardo Ave
Mountain View, CA 94043
This Agreement is binding on the Company as well as its employees, employers, contractors and agents, and on any successors and assignees. Neither the Software nor any information derived therefrom may be exported except in accordance with the laws of the State of Delaware or other applicable provisions. This Agreement is governed by the laws of the State of California. This Agreement is the entire agreement between Lyatiss and the Company and the Company agrees that Lyatiss will not have any liability for any untrue statement or representation made by it, its agents or anyone else (whether innocently or negligently) upon which the Company relied upon entering this Agreement, unless such untrue statement or representation was made fraudulently. This Agreement supersedes any other understandings or agreements, including, but not limited to, advertising, with respect to the Software. If any provision of this Agreement is deemed invalid or unenforceable by any country or government agency having jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable, and the remaining provisions will remain in full force and effect. The original of this Agreement has been written in English, and that version will govern.