MeetingSense distribution permissions and end-user license agreement
YON SOFTWARE CORPORATION SOFTWARE
SOFTWARE LICENSE AND NON DISCLOSURE AGREEMENT
IMPORTANT: THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND YON SOFTWARE. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT THEN YON SOFTWARE IS UNWILLING TO GRANT YOU THIS LICENSE, YOU MUST NOT INSTALL OR USE THE SOFTWARE, AND (1) IF YOU RECEIVED THIS SOFTWARE ON CD-ROM, YOU MAY RETURN THE UNUSED SOFTWARE TO THE LOCATION WHERE YOU OBTAINED IT FOR A REFUND, IN ACCORDANCE WITH THE REFUND POLICY OF SUCH LOCATION; OR (2) IF YOU RECEIVED THIS SOFTWARE VIA DOWNLOAD FROM AN INTERNET WEB SITE, THEN YOU MUST DELETE ALL OF THE DOWNLOADED FILES AND YOU MAY OBTAIN A REFUND IN ACCORDANCE WITH THE REFUND POLICY OF SUCH INTERNET WEB SITE.
THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY YON SOFTWARE HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN. AS USED IN THIS AGREEMENT, "YOU" AND "YOUR" REFERS TO THE INDIVIDUAL OR ENTITY THAT WISHES TO USE THE SOFTWARE.
1.1 “Confidential Information” means the Software, specifications, documentation and any other information related thereto, including the existence, features and capabilities, and potential release date of the software program.
1.2 “Licensor” means the Licensor and its licensors, if any.
1.3 “Software” means only the Licensor’s MEETINGSENSE software program(s) and integrated third party software, in each case, supplied by the Licensor under this Agreement, and corresponding documentation, associated media, printed materials, and online or electronic documentation.
2. CONFIDENTIAL INFORMATION; LICENSE AND RESTRICTIONS.
2.1 You agree that the Software, specifications, documentation and any other information related thereto, including, but not limited to, the existence, features and capabilities, potential release date, edition, and price of the Software, are trade secretes and Confidential Information of the Licensor. You agree not to disclose or publish any Confidential Information to any third party and that you shall use your best efforts to prevent inadvertent disclosure of such Confidential Information to any third party.
2.2 Subject to your continued compliance with this Agreement, you are allowed to use the Confidential Information within your organization solely for the purpose of testing and evaluating the Software, and discussing and reporting on such use as described herein. The license granted herein is non-exclusive and limited. Other than as expressly set forth in this Section 2.2, no other rights or licenses to the Software or any other Confidential Information are granted to you.
2.3 You shall test the Software under the normally expected operating conditions in your environment during the test period. You agree to the following conditions as part of this Agreement:
-Test the Software for a minimum of 10 hours a week.
-Install Software within 48 hours of receiving it.
-Report defects found during beta testing.
-Retest defects with Software refresh code.
-Participate in a minimum of 2 conference calls per month.
-Answer survey questions, as needed.
-Provide overall feedback to development on reliability, stability, usability and readiness of Software for marketplace.
-Provide feedback regarding Software documentation and help systems.
-Provide required hardware to adequately test the Software.
You also agree to permit the Company to publish your name in reference to the test in Company sales, marketing, and investment materials as well as on the Company website. Upon satisfactory completion of the testing, the Company shall offer you a “beta user” discount on the production version of the Software, contingent upon the Company`s decision to proceed with production of the Software. You shall be entitled to the same benefits to which regular purchasers of the Software will be entitled.
2.4 Except as specified above, you and your employees are strictly prohibited from copying, modifying, distributing, publicly displaying or publicly performing the Software. Neither you nor any of your employees may alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Neither you nor any of your employees may sell, rent, lease, transfer or sublicense the Software. Neither you nor any of your employees may modify the Software or create derivative works based upon the Software. Neither you nor any of your employees may alter the contents of a hard drive or computer system to enable the use of the Software for an aggregate period in excess of the pre-release testing period for Software. All rights not expressly granted herein are reserved by the Licensor.
3. EVALUATION OBLIGATIONS.
3.1 You agree that any comments, review, evaluation, analysis, suggestions or other feedback regarding the software (“Program Comments”) are made voluntarily and shall not create a confidentiality obligation from the Licensor to any party and the Licensor shall be free to use any Program Comments in any manner without obligation of any kind to you or any of your employees.
3.2 You understand and agree that the Software may transmit certain information pertaining to the Software and its use and operation to the Licensor electronically and automatically. For example, the Software may transmit diagnostic information regarding the performance of the Software and the Software and hardware configuration that the Software is being run on to the Licensor. Any information received by the Licensor from this transmission will be used by the Licensor solely for the purposes of diagnosing and correcting errors in the Software and monitoring compliance with this Agreement.
3.3 You shall not directly or indirectly export, re-export, or knowingly cause such export or re-export (including by download) the Software in violation of any U.S. law, including without limitation the Export Administration Act of 1979, as amended, any successor legislation and Export Administration Regulations, to anyone on the United States Treasury Department’s list of Specially Designated Nationals or Blocked Persons or the United States Commerce Department’s Table of Denial Orders. If You perform such prohibited act(s), directly or indirectly, YON will, at its sole option, be entitled to immediately terminate this Agreement without allowing time for cure. You agree to the foregoing and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
4. WARRANTY DISCLAIMER/LIMITATION ON LIABILITY.
4.1 YOU ACKNOWLEDGE THAT THE SOFTWARE IS A PRE-RELEASE VERSION THAT DOES NOT REPRESENT A FINAL PRODUCT, AND MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES.
4.2 YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE IS PROVIDED “AS IS” AND “WITH ALL FAULTS”. THE LICENSOR AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE RELATING TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, THE LICENSOR AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES OF TITLE, NONINFRINGEMENT OR QUIET ENJOYMENT. THE LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU. THE LICENSOR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR, ITS EMPLOYEES OR ANY THIRD PARTY SHALL CREATE A WARRANTY. LICENSEE BEARS ALL RISKS OF PERFORMANCE OF THE SOFTWARE.
4.3 NEITHER THE LICENSOR NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE LICENSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
4.4 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT.
5. TERM AND TERMINATION.
5.1 Either party may terminate this Agreement at any time upon written notice; provided, however, your obligations, including those of your employees, with respect to the Confidential Information shall survive until you receive notice from the Licensor that you can disclose the Confidential Information to the public, or the Confidential Information is disclosed to the public by the Licensor.
5.2 Upon conclusion of testing, termination or upon request from the Licensor, you will promptly return or destroy the Software, all other Confidential Information and related documentation together with all copies in any form. Sections 1, 2.1, 2.4, 4, 5, 6, 7.1 and 7.2 shall survive any termination of this Agreement.
6. PROPRIETARY RIGHTS.
6.1 This Agreement gives you limited license to use the Software as set forth in Section 2.2 hereof. Except as expressly provided in Section 2.2, the Licensor and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications that may be developed) and other Confidential Information, and all copies thereof. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by the Licensor and its suppliers.
7. GENERAL PROVISIONS.
7.1 This Agreement shall be governed in all respects by the laws of the State of California and any dispute arising out or relating to this Agreement shall be brought exclusively in the state and federal courts in the County of San Diego, California. Licensee understands that unauthorized disclosure of Confidential Information may cause irreparable injury to the Licensor and thus, the Licensor may be entitled to seek equitable relief to protect its interests therein, including but not limited to injunctive relief, in addition to any and all other rights and remedies available at law or equity.
7.2 This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software or any other Confidential Information shall be of no effect. The failure or delay of the Licensor to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
7.3 This Agreement is personal to you. You shall not assign or otherwise transfer any rights or obligations under this Agreement.
7.4 This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. Fax signatures will be considered original signatures.