Software License Agreement ("SWLA")
Last Updated on December 22, 2016
SOFTWARE END USER LICENSE AGREEMENT FOR EVALUATION AND DEVELOPMENT
This Software End User License Agreement (“Agreement”) is a binding agreement by and between Ayla Networks, Inc. (“Ayla”) and the licensee specified on the Sign-Up Page (“Licensee”). Ayla and Licensee may hereinafter each be referred to as a “Party” and collectively as the “Parties.”
AYLA PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, AYLA WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, ACCESS OR USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF AYLA’S SOFTWARE.
1.1 “AMAP Software” means Ayla’s Agile Mobile Application Platform and any Updates thereto provided by Ayla.
1.2 “APIs” means Ayla’s application programming interfaces provided by Ayla to Licensee pursuant to which Devices, Licensee Applications, Licensee’s web services, and Licensee’s cloud services (and its designated third party cloud services) can connect with the Developer Platform and Production Platform.
1.3 “Application Libraries” means Ayla’s application libraries provided by Ayla to Licensee and any Updates thereto provided by Ayla.
1.4 “Authorized Third Parties” means third parties (including but not limited to Licensee’s application developers) that are approved in writing in advance by Ayla as being authorized to exercise certain rights of Licensee under this Agreement, in each case solely on behalf and for the sole benefit of Licensee, and solely pursuant to the terms of this Agreement.
1.5 “Licensee Application” means a software application designed by or on behalf of Licensee to enable a Device to connect to the Developer Platform and Production Platform.
1.6 “Device” means a hardware device that Licensee wishes to enable to connect to the Developer Platform and Production Platform.
1.7 “Developer Platform” means Ayla’s developer and testing cloud platform made available on a region-by-region basis in various regions around the world.
1.8 “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.
1.9 “Embedded Agent” means Ayla’s software that enables Devices to connect to the Developer Platform and Production Platform and any Updates thereto provided by Ayla. The Parties acknowledge that different versions of the Embedded Agent are made available by Ayla, some of which are provided only in object code format (i.e., embedded on the applicable Wi-Fi Module) and some of which are provided in partial or full source code format.
1.10 “Gateway Software” means Ayla’s gateway software that enables multiple Devices to connect to the Developer Platform and Production Platform through a single gateway and any Updates thereto provided by Ayla.
1.11 “Liability” means any and all damages (including punitive damages), losses, expenses (including reasonable attorneys’ fees and litigation costs), claims, demands, suits, causes of action, settlements, payments, awards, judgments, liens, fines, fees, penalties, interest and other liability.
1.12 “Mobile Application” means the mobile applications or web-based applications licensed by Licensee and/or developed by or for Licensee through which Licensee and/or its consumers may manage a Device.
1.13 “Modifications” means any modifications, improvements, derivative works of, and enhancements to all or portions of the Software and Documentation, including and any recast, transformed, or adapted versions thereof, bug-fixes, corrections, adaptations, revisions, translations (including compilation or recapitulation by computer), abridgments, condensations, expansions, update and upgrades, whether made by Ayla, Licensee, or a third party.
1.14 “Policies” means Ayla’s policies pertaining to the use of the Services published at https://www.aylanetworks.com/legal.
1.15 “Production Platform” means Ayla’s production field cloud platform made available on a region-by-region basis in various regions around the world.
1.16 “Services” means the APIs, Application Libraries, AMAP Software, Embedded Agent, Gateway Software, Developer Platform and Production Platform.
1.17 “Sign-Up Page” means the page through which Licensee signs up to receive access to the Services and, in connection therewith, accepts the terms of this Agreement and identifies Licensee (i.e., the licensee under this Agreement), and provides the name, title and email address of the individual who is accepting this Agreement on behalf of Licensee and such other information as Ayla may require to be submitted through such page. The Sign-Up Page is located at https://www.aylanetworks.com/software-license-agreement.
1.18 “Software” means the software that Ayla elects to make available to Licensee under this Agreement (which may include one or more of the Application Libraries, AMAP Software, Embedded Agent and Gateway Software) and any Updates thereto provided by Ayla.
1.19 “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.
1.20 “Updates” means error corrections, bug fixes, enhancements, improvements, new releases, maintenance releases and updates provided by Ayla to Licensee.
2. Evaluation and Development License.
2.1 Grant of Licenses for Evaluation, Development and Testing. Solely to the extent that any of the following Software is made available to Licensee by Ayla, the following license grants pertaining thereto will apply. The following licenses may be exercised by Authorized Third Parties on behalf, and for the sole benefit, of Licensee, provided that such Authorized Third Parties agree to comply with the terms of this Agreement, and further provided that Licensee shall be responsible and fully liable to Ayla for any Liability arising from any breach of this Agreement by such Authorized Third Parties.
Application Libraries. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to incorporate the Application Libraries into Licensee Applications for the sole purpose of Licensee’s internal evaluation, development and testing and not for distribution to end users.
AMAP Software. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to use and reproduce the AMAP Software, and modify the portions of the AMAP Software provided to Licensee in source code format, each for the sole purpose of creating Licensee Applications used solely for Devices which connect to the applicable Developer Platform and Production Platform, for the sole purpose of Licensee’s internal evaluation, development and testing and not for distribution to end users.
“Whitebox” Version of Embedded Agent. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to use and reproduce the Whitebox version of the Embedded Agent; modify the portions of the Whitebox version of the Embedded Agent provided to Licensee in source code format; and install the Whitebox version of Embedded Agent (whether or not modified) on certified modules approved in writing by Ayla (“Certified Whitebox Modules”), each of the foregoing for the sole purpose of connecting Devices incorporating the Certified Whitebox Modules to the Developer Platform and Production Platform as authorized under this Agreement, for the sole purpose of Licensee’s internal evaluation, development and testing and not for distribution to end users.
“Linux” Version of Embedded Agent. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to use and reproduce the Linux version of the Embedded Agent; modify the portions of the Linux version of the Embedded Agent provided to Licensee in source code format; and install the Linux version of Embedded Agent (whether or not modified) on modules selected by Licensee, each of the foregoing for the sole purpose of connecting Devices incorporating such modules to the Developer Platform and Production Platform as authorized under this Agreement, for the sole purpose of Licensee’s internal evaluation, development and testing and not for distribution to end users.
Gateway Software. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to use and reproduce the Gateway Software; modify the portions of the Gateway Software provided to Licensee in source code format; and install the Gateway Software (whether or not modified) on certified modules approved in writing by Ayla (“Certified Gateway Modules”), each of the foregoing for the sole purpose of connecting Devices incorporating the Certified Gateway Modules to the Developer Platform and Production Platform as authorized under this Agreement, for the sole purpose of Licensee’s internal evaluation, development and testing and not for distribution to end users.
Developer Platform and Production Platform. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to permit Licensee Applications, Licensee’s web services, Licensee’s cloud services, and Licensee’s designated third party cloud services approved in writing by Ayla to connect to the Developer Platform and Production Platform pursuant to the APIs, solely for evaluation, development, testing, support and training purposes and to support Licensee’s exercise of the express licenses granted in this Section 2.1.
Documentation. Subject to the terms and conditions of this Agreement, Ayla grants to Licensee a personal, non-exclusive, non-transferable, non-sublicenseable license to internally use and reproduce the Documentation for evaluation, development, testing, support and training purposes and to support Licensee’s exercise of the express licenses granted in this Section 2.1.
3. License Restrictions.
3.1 Restrictions and Obligations. In addition to any restrictions set forth above in Section 2.1, Licensee agrees (on behalf itself, its Authorized Users and Authorized Third Parties), except as expressly permitted Section 2.1 of this Agreement, not to: (a) access or use the Services or Documentation (or any portion thereof) in any way not expressly permitted under Section 2.1 hereof; (b) sell, rent, lease, sublicense, pledge, assign or otherwise transfer Licensee’s rights, in whole or in part, to access and use Services or Documentation (or any portion thereof) to any third party or otherwise make the functionality of the Services available to third parties; (c) modify, adapt, translate or create derivative works based on the Services or Documentation (or any other portions thereof) in any way not expressly permitted under Section 2.1 hereof; (d) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Services or Documentation (or any portion thereof), and Licensee agrees to reproduce all such notices, legends, symbols and labels on copies of the Services and Documentation; (e) use any portion of the Services to connect any device to any website or service, except for Devices connecting to Ayla’s designated website (*@aylanetworks.com or successor site) and/or to the Developer Platform and Production Platform solely under this Agreement, unless Ayla’s prior written consent is obtained; (f) use or access the Services or Documentation in any way not in compliance with Ayla’s Policies; (g) use the Services or Documentation to create a product or service which is similar to or competitive with any portion of the Services or other offerings of Ayla or its affiliates; or (h) disclose to any third party the performance measures of the Services (or portion thereof) or benchmark tests or other comparisons of the Services (or portion thereof) 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 Agreement may contain Third Party Materials, including any 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 (in addition to those listed above in this Section 3.13.1) pertaining to such Third Party Materials, which restrictions are 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 will be subject to the following obligations and restrictions applicable to any Software provided by Ayla in source code format (“Source Code”): (a) Licensee may provide access to the Source Code solely to its employees who have a need to access the Source Code for purposes of exercising Licensee’s applicable license(s) under this Agreement (“Authorized Employees”) and to Authorized Third Parties, provided that no Authorized Employees or Authorized Third Parties 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 and enforceable obligations neither to use the Source Code (other than for purposes expressly permitted by this Agreement) nor to disclose such Source Code to any person or entity other than another Authorized Employee or Authorized Third Party who has a need to access the Source Code for purposes of exercising Licensee’s applicable license(s) under this Agreement; (b) Licensee will not (and will not authorize or permit any third party to) allow hard copy printouts of any portion of the Source Code to exist except within secured locations; and (c) Licensee will not (and will not authorize or permit any third party to) 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 (with such passwords only being made available to Authorized Employees). Licensee agrees that Licensee will be responsible and fully liable to Ayla for any breach by any Authorized Employee or Authorized Third Party 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 Agreement, 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 and agree that the Documentation, APIs and any performance measures of the Services are 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 Agreement 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 prior to any such compelled disclosure, 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 and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information, 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, each receiving Party agrees that 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. The receiving Party shall promptly notify the disclosing Party in writing upon becoming aware of any such breach or threatened breach.
4.5 Terms of Agreement. 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 Agreement without the prior written consent of the other Party, except: (a) as required by the applicable laws, including without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; (d) in connection with the enforcement of this Agreement or any rights hereunder; and (e) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
As between the Parties, Ayla owns and shall retain all right, title and interest, including all intellectual property and proprietary rights, in and to: (a) the Services (and each portion thereof) and the Documentation; (b) any Modifications made to the Services (or any portion thereof) or Documentation, whether by Ayla, Licensee or a third party; and (c) Ayla’s other products, systems and networks. Ayla reserves all rights not expressly granted to Licensee under this Agreement.
6. Term and Termination.
This Agreement and the licenses granted hereunder shall remain in effect until the earlier of (a) one year after the date of Licensee’s acceptance of the terms of this Agreement and (b) the date on which this Agreement is terminated as set forth herein (the “Term”).
6.1 Termination by Licensee. Licensee may terminate this Agreement by ceasing to use, uninstalling and destroying all copies of the Software and Documentation in the possession or under the control of Licensee and any Authorized Third Party (including Licensee’s resellers and distributors).
6.2 Termination for Cause. This Agreement will immediately terminate upon the occurrence of any of the following:
6.2.1 Licensee’s breach of this Agreement; or
6.2.2 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 or acts described in this Section 6.2.2 occurs.
6.3 Effect of Termination or Expiration. Upon termination, Licensee will: (i) cease all use (and cause each Authorized Third Party to cease all use) of the Software and Documentation; (ii) destroy (and cause each Authorized Third Party to destroy) the Software, Documentation, all copies thereof (in whole or in part), and any materials incorporating any portion thereof, in the possession or under the control of Licensee and any Authorized Third Party (including Licensee’s resellers and distributors); and (iii) certify in writing to Ayla that such destruction has taken place. The following Sections shall survive any termination of this Agreement: Sections 1, 3, 4, 5, 6.3, 7, 9, 10 and 11.
AYLA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, 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 SERVICES, SOFTWARE (INCLUDING ANY SOURCE CODE PROVIDED TO LICENSEE) OR DOCUMENTATION AND THAT THE SERVICES, SOFTWARE (INCLUDING ANY SOURCE CODE PROVIDED TO LICENSEE) AND DOCUMENTATION ARE 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 under this Agreement with respect to the Services, Software or Documentation. Support services, to the extent offered by Ayla, may be separately purchased at Ayla’s then-current rates and will subject to the terms of 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 Agreement by any of its employees, contractors and third parties acting on its behalf.
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 use or development of the Licensee Application by Licensee in any country, worldwide, provided that Ayla gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of any such claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim.
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 (at its own expense) the full defense and/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 (including payment obligation) on indemnified Party that is not wholly discharged by the indemnifying Party. The indemnified Party may participate in the defense and settlement of any claim for which it is entitled to indemnification at its sole expense.
10. Limitation of Liability.
AYLA AND ITS LICENSORS 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 (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF AYLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AYLA’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO AYLA BY LICENSEE PURSUANT TO THIS AGREEMENT.
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, SERVICES OR DOCUMENTATION WITHOUT SUCH LIMITATIONS.
11.1 Governing Law and Forum. This Agreement shall be governed in all respects by the laws of the United States of America and the State of California without regard to conflicts of law principles. All disputes arising under this Agreement shall be brought exclusively in Superior Court of the State of California in Santa Clara County or the U.S. District Court for the Northern District of California in San Francisco, California, as permitted by law. 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 Agreement.
11.2 Attorneys’ Fees. In the event any proceeding or lawsuit is brought by Ayla or Licensee in connection with this Agreement, the prevailing Party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.
11.3 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement 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 Agreement in addition to any and all remedies available at law.
11.4 Notices. Any notice under this Agreement will be deemed given by Licensee (a) if it is given in writing and (b) when it is actually delivered in person, by overnight delivery service, or by confirmed facsimile or electronic transmission to Ayla at the following address: Ayla Networks, 4250 Burton Drive, Santa Clara, CA 95054 (or to such other address as may be identified by Ayla as its business address on https://www.aylanetworks.com), unless it is sent to Ayla by registered or certified United States mail (with the postage prepaid and return receipt requested), in which case it will be deemed given on the third business day after mailing. Any notice under this Agreement will be deemed given by Ayla if it is sent by email to the email address identified by Licensee on the Sign-Up Page.
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 full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
11.7 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement 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 such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
11.8 Headings. The section headings appearing in this Agreement 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 Agreement.
11.9 Assignment. Licensee may not delegate, assign or transfer this Agreement, the license(s) granted or any of Licensee’s rights or duties hereunder, including by way of merger (regardless of whether Licensee is the surviving entity) or acquisition, and any attempt to do so, without Ayla’s express prior written consent, shall be void. Ayla may assign this Agreement, and its rights and obligations hereunder, in its sole discretion.
11.10 Export Control. All Software and technical information delivered under this Agreement 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 Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the Parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, shall be in the English language.
11.12 Entire Agreement; Modification. This Agreement 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. This Agreement may only be amended or supplemented by a writing that refers explicitly to this Agreement and that is signed by duly authorized representatives of Licensee and Ayla.