Portable Device Agent Software License Agreement ("SLA")
Date of Last Revision: June 11, 2018
This SLA is a binding agreement by and between Ayla Networks, Inc. (“Ayla”) and the licensee specified on the sign up page (“Licensee”).
AYLA PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS SLA. BY CLICKING THE “ACCEPT” BUTTON, LICENSEE (A) ACCEPTS THIS SLA AND AGREES THAT IT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS SLA AND BIND THE LICENSEE TO ITS TERMS.
1.1 “Device” means a hardware device that Licensee or its customers wishes to enable to connect to Ayla’s cloud platform.
1.2 “Documentation” means any applicable training, support, and other documentation relating to the use of and access to the Services provided by Ayla to Licensee and any Updates thereto provided by Ayla.
1.3 “Software” means the portable device agent, Ayla’s proprietary software that enables Devices to connect to Ayla’s Cloud Platform.
1.4 “Third Party Materials” means any third party software or other materials which are included within the Software or any other portion of the Services. The Third Party Materials are set forth at http://www.aylanetworks.com/third-party-software, which may be updated by Ayla from time to time by posting such updates on Ayla’s website.
2. Rights Granted
2.1 Grant of Licenses. Solely to the extent that the Software is made available to Licensee by Ayla, the following license grants will apply. This license extends solely to the named Licensee.
3. License Restrictions
3.1 Restrictions and Obligations. In addition to any restrictions set forth above, Licensee agrees not to: (a) sell, rent, lease, sublicense, pledge, assign or otherwise transfer Licensee’s rights, in whole or in part, to any third party; (b) modify, adapt, translate or create derivative works based on the Software in any way not expressly permitted under Section 2.1 hereof; (c) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Software, and Licensee agrees to reproduce all such notices, legends, symbols and labels on copies of the Software; (d) use or access the Software in any way not in compliance with Ayla’s policies found at https://www.aylanetworks.com/legal; (e) disclose to any third party the performance measures of the Software or benchmark tests or other comparisons of the Software with other services or software. Licensee will not permit or encourage any third party to do any of the foregoing. The Software licensed under this SLA may contain Third Party Materials, including software (including libraries, databases, drivers and similar components, or portions thereof) that is made available for use under a free or open source license. Licensee will comply with any restrictions and obligations pertaining to such Third Party Materials referenced at http://www.aylanetworks.com/third-party-software, which may be updated by Ayla from time to time.
3.2 Additional Obligations for source code. Licensee agrees: (a) Licensee may provide access to the source code solely to its employees who have a need to access the source code for purposes stated herein, provided that no employees will be given access to any source code unless and until such parties: (i) have been apprised of and acknowledge the confidential and proprietary nature of the source code; (ii) have been trained with respect to the industry-standard procedures designed to preserve the confidentiality of the source code; and (iii) are subject to binding obligations neither to use the source code (other than for purposes expressly permitted by this SLA) nor to disclose such source code to any person or entity; (b) Licensee will not allow hard copy printouts of any portion of the source code to exist except within secured locations; and (c) Licensee will not allow soft copy versions of any portion of the source code to reside on computers or networks unless such computers or networks are password protected and accessible only by authorized employees. Licensee will be responsible and fully liable to Ayla for any breach of any obligations pertaining to the source code. Licensee shall use its best efforts to protect the source code from unauthorized access, reproduction, disclosure or use. In the event Licensee becomes aware of any unauthorized use or disclosure of the source code, Licensee shall notify Ayla immediately in writing and will fully cooperate, at Licensee’s expense, to minimize the effects of such unauthorized use or disclosure.
4.1 Confidential Information. Each party acknowledges that, in the course of performing under this SLA, each 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, customers, 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. The parties acknowledge that the Software is Ayla’s Confidential Information.
4.2 Obligations. The receiving party agrees: (a) to protect the Confidential Information from unauthorized dissemination and use; (b) to use the Confidential Information solely for performing its obligations and exercising its rights hereunder; (c) not to disclose any Confidential Information, or any part or parts thereof, except to the receiving party’s employees and contractors who are aware of the confidentiality obligations imposed by this Section 4.2 and have agreed to comply with the requirements of this Section 4.2; and (d) not to disclose or otherwise provide to any other third party, without the prior written consent of the disclosing party, any Confidential Information or any portion thereof. The receiving party shall remain liable for any non-compliance of such employee or contractor with the terms of this Section 4.2. The receiving party shall take the same degree of care that it uses to protect its own highly sensitive confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized dissemination, disclosure or use of the Confidential Information.
4.3 Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply to any Confidential Information that: (a) was or becomes publicly known through no fault of or breach of this SLA by the receiving party; (b) was known by the receiving party before receipt from the disclosing party; (c) becomes known to the receiving party without confidential or proprietary restriction from a source that does not owe a duty of confidentiality to the disclosing party with respect to such Confidential Information; or (d) is independently developed by the receiving party without the use of, reference to, or access to the Confidential Information of the disclosing party. In addition, the receiving party may disclose the Confidential Information if the receiving party is legally compelled to do so, provided that the receiving party shall (if legally able to) notify the disclosing party of such compelled disclosure, shall cooperate fully with the disclosing party in protecting against any such disclosure or narrowing the scope of such disclosure, and shall solely disclose the portion of the Confidential Information compelled to be disclosed solely to the party entitled to receive it. Notwithstanding any such compelled disclosure by the receiving party, such compelled disclosure shall not otherwise affect the receiving party’s obligations hereunder with respect to Confidential Information so disclosed.
4.4 Injunctive Relief. Each receiving party agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to the disclosing party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, the disclosing party, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of the obligations under this Section 4, without the necessity of posting any bond or other security.
4.5 Terms of SLA. The parties may disclose the general nature of the relationship between the parties, but a party may not disclose the terms and conditions of this SLA without the prior written consent of the other Party.
As between the parties, Ayla owns and shall retain all right, title and interest, including all intellectual property and proprietary rights in and to the Software.
6. Term and Termination
This SLA and the licenses granted hereunder shall remain in effect until the termination by either party (the “Term”). The party terminating the license shall provide 30 days prior written notice unless otherwise specified below.
6.1 This SLA will immediately terminate upon the occurrence of any of the following:
6.1.1 Licensee’s breach of this SLA; or
6.1.2 Licensee making any assignment for the benefit of creditors, filing a petition in bankruptcy, being adjudged bankrupt, becoming insolvent, or being placed in the hands of a receiver, or if the equivalent of any of the proceedings.
6.2 Effect of Termination or Expiration. Upon termination, Licensee will: (i) cease all use and further distribution of the Software; (ii) destroy the Software, all copies thereof, and any materials incorporating any portion thereof, in the possession or under the control of Licensee; and (iii) certify in writing to Ayla that such destruction has taken place. The following Sections shall survive any termination of this SLA: Sections 1, 3, 4, 5, 6.2, 7, 9, 10 and 11.
AYLA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE (INCLUDING ANY SOURCE CODE PROVIDED TO LICENSEE). 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 NOT RELIED ON ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING ANY SOURCE CODE, OR DOCUMENTATION AND THAT THE SOFTWARE IS PROVIDED “AS IS” AND MAY HAVE BUGS, ERRORS, DEFECTS OR DEFICIENCIES.
The license(s) granted hereunder do not include, and Ayla will have no obligation to provide, support, installation or training. Support services, to the extent offered by Ayla, may be separately purchased at Ayla’s then-current rates and will subject to a separate agreement between the parties.
9. Indemnification; Liability
9.1 Joint and Several Liability. Licensee shall be jointly and severally responsible for any violation of any of the confidentiality obligations, or a breach of the license restrictions and obligations, set forth in this SLA by any of its employees, contractors and customers who fail to comply with the terms of distribution set forth herein.
9.2 Indemnification. 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 by third parties resulting from or in connection with the distribution of the Software by Licensee in any country.
9.3 Procedure. The party seeking indemnification under this Section 9 will: (a) provide notice of the applicable indemnified claim to the indemnifying party within a reasonable time after becoming aware of such claim (unless the indemnified party is legally precluded from providing such notice); (b) provide reasonable assistance to indemnifying party in the defense of the indemnified claim; and (c) tender the control of the defense of the indemnified claim to the indemnifying party, who will promptly assume and conduct the full defense or settlement of any indemnified claim. The indemnifying party shall not have the right to settle any indemnified claim, without the prior written consent of the indemnified party, that contains an admission of liability or wrongdoing on the part of indemnified party or imposes a material obligation on the indemnified party that is not wholly discharged by the indemnifying party. The indemnified party may participate in the defense and settlement of any indemnified claim at its sole expense.
10. 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 SLA REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF AYLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 SOFTWARE WITHOUT SUCH LIMITATIONS.
11.1 Governing Law and Forum. This SLA shall be governed in all respects by the laws of the State of California without regard to conflicts of law principles. All disputes arising under this SLA shall be brought exclusively in state or federal courts located in Santa Clara County or the Northern District of California. Licensee consents to the personal jurisdiction of the above courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this SLA.
11.2 Attorneys’ Fees. In the event any proceeding or lawsuit is brought by Ayla or Licensee in connection with this SLA, the prevailing party in such proceeding shall be entitled to receive its costs, including reasonable attorneys’ fees.
11.3 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this SLA, breach of the provisions of this SLA by Licensee will cause Ayla irreparable damage for which recovery of money damages would be inadequate, and that Ayla shall therefore be entitled to obtain timely injunctive relief, without the requirement of posting bond, to protect Ayla’s rights under this SLA in addition to any and all remedies available at law.
11.4 Notices. Any notice under this SLA will be deemed given when it is actually delivered in person, by overnight delivery service, or by confirmed facsimile or electronic transmission to the Ayla or the Licensee, as applicable.
11.5 No Agency. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties.
11.6 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the right to require such performance at any time thereafter; nor shall the failure by either Party to enforce a breach be taken as a waiver of the provision itself.
11.7 Severability. In the event that any provision of this SLA is unenforceable or invalid under any applicable law or applicable court decision, such unenforceability or invalidity shall not render this SLA unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of the parties.
11.8 Headings. The section headings appearing in this SLA are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this SLA.
11.9 Assignment. Licensee may not delegate, assign or transfer this SLA, the rights granted hereunder, including by way of merger or acquisition, and any attempt to do so, without Ayla’s express prior written consent, shall be void. Ayla may assign this SLA, and its rights and obligations hereunder, in its sole discretion.
11.10 Export Control. All Software and technical information delivered under this SLA are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to strictly comply with all such laws and regulations.
11.11 Language. This SLA is in the English language only, which language shall be controlling in all respects, and all versions of this SLA in any other language shall be for accommodation only and shall not be binding on the parties to this SLA.
11.12 Entire SLA; Modification. This SLA constitutes the entire agreement between Licensee and Ayla and supersedes in their entirety any and all oral or written agreements previously existing between Licensee and Ayla with respect to the subject matter hereof.