Embedded Software License Agreement
Date of Last Revision: March 19, 2019
This Embedded Software License (“Agreement”) is by and between Ayla Networks, Inc. (“Ayla”) and the Licensee specified on the sign-up page (if signed online) or in the signature block (if signed in ink). This Agreement is effective as of the date the Agreement is accepted online, or the last date specified in the signature block, as applicable. This Agreement governs Licensee's access to and use of the proprietary Ayla agent (“Agent”). The Agent is provided by Ayla to Licensee at no cost unless otherwise agreed between the parties.
1.1. “Device" means hardware that is manufactured or distributed by Licensee in which the Agent will be embedded.
1.2. “Documentation” means the applicable user guides, training, and other documentation related to the use of and access to the Agent.
1.3. “Third Party Materials” means any third party software or other materials which are included within the Agent.
2.2. Ownership. Ayla owns all intellectual property rights in the Agent and associated source code, all Documentation, the Ayla cloud platform, and any other rights not specifically transferred to Licensee hereunder. To the extent that the source code is modified by Licensee, Licensee shall own the modifications (hereinafter, the “Modified Agent”), subject to Ayla’s rights in the underlying source code. If requested by Ayla, Licensee shall grant to Ayla a personal, non-exclusive license to the Modified Agent at no cost.
2.3. Restrictions and Obligations. In addition to any other restrictions set forth herein, Licensee shall not: (a) sell, rent, lease, sublicense, pledge, assign or otherwise transfer Licensee's rights, in whole or in part, to any third party, except as expressly permitted hereunder; (b) modify, adapt, translate or create derivative works based on the Agent or Documentation except as expressly permitted hereunder; (c) remove or alter any copyright, trademark, or other proprietary notices appearing on or in any part of the Agent or Documentation and Licensee agrees to reproduce all such notices on copies; (d) use any portion of the Agent to connect to any website or service other than the Ayla cloud platform; (e) use the Agent to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (f) publish, post, upload or otherwise transmit data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (g) use the Agent or Documentation to create a product or service which is similar to or competitive with any offerings of Ayla; or (h) disclose to any third party benchmark tests or other comparisons of the Agent with other services or software.
2.3.1. Additional Obligations for Source Code. Licensee agrees that for software provided in source code format, source code is considered Confidential Information and is accessible only by Licensee's employees who have a need to access the source code. Licensee warrants that: (a) any such employee has been apprised of and acknowledges the confidential and proprietary nature of the source code; (b) has been trained in accordance with industry standard procedures designed to preserve the confidentiality of the source code; and (c) its employees are bound by the terms contained herein. Licensee will not allow hard copy versions of any portion of the source code to exist except within secure locations. Licensee will not allow soft copy versions of any portion of the source code to reside on computers or networks unless they are password protected with access available only to authorized employees. If there is any unauthorized use or disclosure of the source code, Licensee shall notify Ayla immediately and fully cooperate, at Licensee's expense, in minimizing the effects of such unauthorized use or disclosure.
2.4. Third Party Materials. The Agent may contain Third Party Materials, including software (along with libraries, databases, drivers and similar components) that is made available for use under a free or open source license. The Third Party Materials are published at http://www.aylanetworks.com/third-party-software, and may be updated from time to time. Licensee shall not use or take action that would: (a) require the Agent be disclosed or distributed in source code format; or (b) require the Agent be redistributed at no charge; or (c) permits reverse engineering of the Agent; or (d) require the Agent to be used only for non-commercial purposes; or (e) require third party attribution; or (f) restrict any rights to assert or enforce patent rights.
2.5. Prohibited Uses. The Agent is not designed, intended, or certified for use with the operation of weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life support, pollution control, hazardous substance management, or for any use in which the failure of the Agent could create a risk of personal injury or death. Licensee may not use the Agent in connection with any of the foregoing.
2.6. Feedback. Licensee grants to Ayla a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, transferable right, with full rights to create derivative works, and otherwise use Licensee’s comments, suggestions, enhancement requests, recommendations or other feedback.
2.7. Support. The Agent provided hereunder does not include support, and Ayla has no obligation to provide technical support, installation or training.
Licensee shall keep and maintain complete and accurate books, records and accounts relating to Licensee's compliance with its obligations hereunder. Ayla shall have the right, with 30 days prior written notice and during reasonable business hours, to examine such books, records and accounts to verify Licensee's compliance with its obligations. Any such audit shall be at Ayla's expense; provided, however, if such audit reveals a material breach of this Agreement, then Licensee shall pay the costs of the audit.
4.1. Confidential Information. Each party to the Agreement acknowledges that such party (as a receiving party) may obtain or otherwise learn the Confidential Information of the other party (as the disclosing party). "Confidential Information" means any information relating to a disclosing party, its business, technology, suppliers, licensors, resellers, distributors, licensees, and third parties to whom the disclosing party has an obligation of confidentiality, whether in tangible or intangible form, which is either marked or designated as "confidential" or "proprietary," or disclosed under circumstances indicating its confidential or proprietary nature, or otherwise would be known to be confidential or proprietary by a reasonable person. The Confidential Information of a disclosing party shall be owned exclusively by the disclosing party. Confidential Information does not include information that: (a) was or becomes publicly known through no fault or breach hereunder; (b) was known by the receiving party before receipt from the disclosing party or becomes known without restriction from a source that does not owe a duty of confidentiality to the disclosing party; or (c) is independently developed by the receiving party without access to the Confidential Information. The parties may disclose the general nature of their relationship, but a party may not disclose the terms of any agreements or pricing without the prior written consent of the other party.
4.2. Obligations. The receiving party agrees: (a) to protect the Confidential Information of the disclosing party from unauthorized dissemination and use the same degree of care it uses to protect its own sensitive information; (b) to use the Confidential Information of the disclosing party solely for performing its obligations and exercising its rights hereunder; and (c) not to disclose any Confidential Information of the disclosing party, except to its employees and contractors who have agreed to comply with the confidentiality obligations imposed hereunder. The receiving party may disclose Confidential Information if legally compelled to do so. If able, the receiving party shall notify the disclosing party of such compelled disclosure and cooperate with disclosing party to obtain a protective order. Because disclosure of the Confidential Information will cause irreparable harm and injury, the party harmed may seek an immediate injunction and other equitable relief, without the necessity of posting any bond or other security.
5. Warranties; Disclaimers
AYLA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AGENT, SOFTWARE (INCLUDING ANY SOURCE CODE PROVIDED TO LICENSEE) OR DOCUMENTATION. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. LICENSEE SPECIFICALLY ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES WITH RESPECT TO THE AGENT OR DOCUMENTATION AND THAT THE AGENT AND DOCUMENTATION ARE PROVIDED “AS IS” AND MAY HAVE BUGS, ERRORS, DEFECTS OR DEFICIENCIES. AYLA DOES NOT WARRANT THAT THE AGENT WILL MEET LICENSEE'S REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, OR THAT THE OPERATION OF LICENSEE’S DEVICE WILL BE UNINTERRUPTED.
Licensee agrees to indemnify, defend and hold harmless Ayla, its shareholders, directors, officers, employees, agents and affiliated companies from and against any losses, costs, or damages (including reasonable attorneys’ fees) resulting from or in connection with any claims made in connection with the use of the Agent in the Device.
7.1. Termination for Breach. If either party materially breaches these terms, the non-breaching party may terminate the Agreement by providing 30 days prior written notice specifying reasonable details of the breach. Ayla may suspend Licensee’s rights to use the Agent, if Licensee materially breaches any of the terms contained herein and fails to cure such breach within 30 days following written notice.
7.2. Effect of Termination. Upon expiration or termination of the Agreement:
(a) Any rights granted by Ayla to Licensee shall terminate;
(b) Licensee shall immediately cease use of, deinstall and destroy or return all copies of the Agent;
(c) If destroyed, Licensee shall certify the destruction of the Agent and all copies to Ayla.
The provisions related to limitation of liability, indemnity (for licenses that are not terminated, or for Devices that have already been distributed), and others which by their nature are intended to survive shall survive.
8. Limitation of Liability
AYLA SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, LOST DATA OR THE LIKE) ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE WARRANTY DISCLAIMER AND LIMITATIONS ON LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AYLA AND LICENSEE, AND AYLA WOULD NOT BE WILLING TO PROVIDE THE AGENT OR SOFTWARE WITHOUT SUCH LIMITATIONS.
9.1. Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing herein or under the Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.
9.2. Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, by operation of law or otherwise, any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign the Agreement without prior written consent solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, sale of stock, or like event, provided that: (a) the assigning party provides reasonable notice to the other party (and in the case of Licensee, notice prior to the assignment); (b) the other party shall have the right to terminate the Agreement by written notice if the assignee is a competitor of the other party. Any transfer of license rights shall be subject to a separate agreement.
9.3. Compliance with Law. Each party will comply with all applicable laws, rules and regulations. Licensee agrees to comply with the U.S. Export Administration Regulations and the export laws of any country to which either party is subject. Licensee will not export or transfer its Device, the Agent Documentation, or other items provided by Ayla to any destination, person or entity restricted or prohibited by relevant export laws.
9.4. Government Use. The Agent, Documentation and any other software provided are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Device is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the foregoing will be only those specified in this Agreement.
9.5. No Third Party Beneficiary. This Agreement is entered into for the sole protection and benefit of the specified parties and are not intended to convey any rights or benefits to any third party.
9.6. Notices. Any notices shall be in writing and delivered personally, by email, or by courier with confirmation of delivery. Notices shall be deemed effective upon receipt.
Each party hereby represents and warrants that: (a) it has the full right, power and authority to enter into the Agreement; and (b) the performance of its obligations hereunder, do not and will not violate any agreement or obligation of such party. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. Any dispute regarding the Agreement shall be subject to state and federal courts with jurisdiction over Santa Clara County, California. The parties disclaim the application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Any delay or omission of either party to exercise any right or remedy shall not operate as a waiver of any right or remedy hereunder. If any provision invalid, illegal or unenforceable, that provision shall be limited or eliminated to the extent necessary so that this Agreement will otherwise remain in full force and effect. If this document is translated into a language other than English, the parties agree that the English version shall control in the event of a conflict or ambiguity.
11. Annex I: End User License Agreement
1. This product, system or service ("Item") contains software that is subject to a separate license agreement ("Software"). The applicable licensor retains all rights to such Software, and a limited license is granted to end user solely for use with this Item. End user will use the Software that is incorporated or embedded in a manner unmodified from the form provided to end user. End user will not modify, adapt, translate or create derivative works based on, or decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software. End user will not disseminate or transmit viruses, worms, Trojan horses, time bombs, spyware, malware, cancelbots, passive collection mechanisms, robots, data mining software, or any other malicious or invasive code or program. THERE ARE NO WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. There are no special, indirect, incidental, consequential or punitive damages available from the software licensor.
2. The information collected by and transmitted through the Item may be accessed by third parties. By using the Item, end user consents to such access of the information. If end user does not consent to such access, end user shall discontinue use of the Item immediately and inform the manufacturer, service provider or supplier of the Item in writing of its objection.
3. The licensor(s) of the Software are the express third party beneficiaries of this End User License Agreement.