YOSPACE CLIENT PRODUCTS LICENSE AGREEMENT
These terms apply to the YOSPACE SMARTPHONE EMULATOR DEVELOPER EDITION. BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE S MARTPHONE EMULATOR (THE "PRODUCT"), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BE COMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTA NCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE.
1. LICENSE AGREEMENT.
As found within this agreement, for residents of Europe, the Middle East or Africa, "YOSPACE" shall mean YOSPACE Limited; for resident s all other countries, "YOSPACE" shall mean YOSPACE, LLC. In this Agreement "Licensor" shall mean YOSPACE except under the following c ircumstances: (i) if Licensee acquired the Product as a bundled component of a third party product or service, then such third party shall be Licens or; and (ii) if any third party software is included as part of the default installation and no license is presented for acceptance th e first time that third party software is invoked, then the use of that third party software shall be governed by this Agreement, but the term "Licensor," with respect to such third party software, shall mean the manufacturer of that software and not YOSPACE. With the exception of the situation described in (ii) above, the use of any included third party software product shall be governed by the thi rd party's license agreement and not by this Agreement, whether that license agreement is presented for acceptance the first time that the third party software is invoked, is included in a file in electronic form, or is included in the pa ckage in printed form. If more than one license agreement was provided for the Product, and the terms vary, the order of precedence o f those license agreements is as follows: a signed agreement, a license agreement available for review on the YOSPACE website, a print ed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with the Product, an electronic agreement provided with the Product.
2. LICENSE GRANT.
Licensor grants Licensee a non-exclusive and non-transferable license to reproduce and use the executable code version of the Product, provided any copy must contain all of the original proprietary notices. This license does not entitle Licensee to receive from YOSPACE hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Product. Licensee may not redistribute the Product unless Licensee has separately entered into a distribution agreement with YOSPACE.
3. RESTRICTIONS.
Except as otherwise expressly permitted in this Agreement, or in another YOSPACE agreement to which Licensee is a party, Licensee may not: (i) modify or create any derivative works of the Product or documentation, including translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (v) publish any results of benchmark tests run on the Product to a third party without YOSPACE's prior written consent.
4. FEES.
There is no license fee for reasonable evaluation of this Product. If the Licensee wishes to use this Product outside of evaluation, then a license fee will be levied.
5. TERMINATION.
Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee breaches any of its terms and conditions. Upon termination, Licensee shall destroy all copies of the Product.
6. PROPRIETARY RIGHTS.
Title, ownership rights, and intellectual property rights in the Product shall remain in YOSPACE and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with YOSPACE's or its suppliers' ownership of rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content.
7. DISCLAIMER OF WARRANTY.
THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS AND THEREFORE WITHOUT WARRANTY OF ANY KIND AND YOSPACE EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOSPACE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THIS PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THIS PRODUCT WILL BE CORRECTED. FURTHERMORE, YOSPACE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THIS PRODUCT OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY YOSPACE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THIS PRODUCT PROVE DEFECTIVE, YOU (AND NOT YOSPACE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THE TERMS OF THIS DISCLAIMER DO NOT AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING YOSPACE PRODUCTS OTHERWISE THAN IN THE COURSE OF A BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OF YOSPACE.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION , DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVE N IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE S UM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY YOSPACE UNDER A SEPARATE SUPPOR T AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONS EQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. YOSPACE IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT O F CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
9. EXPORT CONTROL.
Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authoritie s, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations , or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product from the U.S. Neither the Product nor the underlying information or t echnology may be downloaded or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any ot her country subject to U.S. tradesanctions covering the Product, to individuals or entities controlled by such countries, or to nation als or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Product, Licensee agrees to the foregoing and represents a nd warrants that it complies with these conditions. If the Product is identified as being not-for-export (for example, on the box, me dia or in the installation process), then, unless Licensee has an exemption from the United States government, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE PRODUCT AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EX PORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WIT HOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE PRODUCT, LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON."
10. HIGH RISK ACTIVITIES.
The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in haza rdous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communicati on systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead dire ctly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Licensor and its su ppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and i ts suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.
11. U.S. GOVERNMENT END USERS.
The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer softwa re" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F. R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those r ights set forth herein.
12. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof.
(b) This Agreement may be amended only by a writing signed by both parties.
(c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflict of law provisions.
(d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to in tellectual property rights) shall be subject to final and binding arbitration in Santa Clara County, California, under the auspices of JAMS/EndDispute, with the losing party paying all costs of arbitration.
(e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such p rovision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
(g) The controlling language of this Agreement is English. If Licensee has received a translation into another langua ge, it has been provided for Licensee's convenience only.
(h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, s hall not waive such term or condition or any subsequent breach thereof.
(i) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
(j) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or ob ligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity.
(k) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitte d assigns.
YOSPACE CLIENT PRODUCTS LICENSE AGREEMENT