EVALUATION LICENSE AGREEMENT
You i Labs, Inc. (hereinafter referred to as “Youi”) has designed and developed the proprietary software and documentation known as the You.i Engine One™ (hereinafter referred to as “Evaluation Software” and “Documentation”). You and/or your organization, corporation or employer (“Licensee”) desires to evaluate, test and report to Youi on the performance and operation of the Evaluation Software and such results may be used in future discussions between the parties relating to the potential licensing of the commercial version of the Evaluation Software by the Licensee.
BY: A) ACCEPTING THE TERMS OF THE EVALUATION LICENSE AGREEMENT ONLINE, B) SIGNING AN ORDER FORM WHICH REFERENCES THE EVALUATION LICENSE AGREEMENT, OR C) USING, OR ACCESSING THE EVALUATION SOFTWARE AFTER BEING MADE AWARE OF THIS EVALUATION LICENSE AGREEMENT, THE LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS HEREOF AND IS CONFIRMING THAT IT IS ACCEPTING AND AGREEING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. IF, AFTER READING THE EVALUATION LICENSE AGREEMENT THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE EVALUATION SOFTWARE.
IF YOU ARE AN AGENT OR EMPLOYEE OF THE LICENSEE THEN YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON LICENSEE’S BEHALF AND TO BIND THE CUSTOMER.
- Grant of Rights. Subject to the terms and conditions of this Agreement, Youi hereby grants to Licensee, free of charge, a non-exclusive, non-transferable, limited-term license to: (a) install one copy of the machine executable code version of the Evaluation Software in a single location on a hard disk or other storage device, and to execute such copy solely for internal use; (b) store another copy of the machine executable code version of the Evaluation Software in a single location on a hard disk or other storage device solely for backup purposes; and (c) use the Documentation; in all cases, solely for internal testing, evaluation and demonstration. Licensee shall have no right to use, copy or distribute the Evaluation Software or Documentation except as explicitly provided in this Agreement.
- Proprietary Rights. All right, title and interest (including all intellectual property rights) in the Evaluation Software and Documentation (and all copies thereof) shall at all times remain the property of Youi or its suppliers (as applicable). Youi shall have no obligation to grant now, or in the future, any further license to copy or use the Evaluation Software or Documentation or subsequent commercial versions thereof. Youi shall own all changes or modifications made by Licensee to the Evaluation Software or Documentation. Licensee shall provide Youi with copies of any such changes or modifications made by Licensee promptly without any charge.
- Restrictions. Except as otherwise expressly permitted in this Agreement, and in addition to any other restrictions herein, Licensee shall not: (i) decompile, disassemble, reverse engineer or decipher the Evaluation Software or otherwise attempt to derive the source code, source files or data files from the Evaluation Software (except to the extent applicable laws specifically prohibit such restriction); (ii) redistribute, sell, assign, transfer, rent, lease, publish, disclose, display, sublicense, or otherwise make available to any third parties the Evaluation Software or Documentation (or any copies or partial copies thereof); (iii) bypass, alter, or tamper with any security or lock-out features of the Evaluation Software; (iv) except as expressly authorized herein, make any copies of the Evaluation Software; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Evaluation Software or Documentation; (vi) publish any results of benchmark tests run on the Evaluation Software or disclose its features, errors or bugs to a third party without Youi’s prior written consent; (vii) use the Evaluation Software or Documentation for any purpose other than evaluation and testing.
- Rights in Derivative Data. Licensee acknowledges and agrees that the Evaluation Software compiles, generates, stores and uses aggregated data and system usage, analytics and diagnostic information (but not any personal information of Licensee’s employees or users) to monitor and improve the Evaluation Software and for the creation of new products. Licensee hereby grants to Youi Company a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate Licensee’s data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to improve the Service, develop new products and services, to understand usage, and for any other business purpose. Derivative Data shall not contain any personal information and shall not be associated with Licensee or its internal users.
- Publicly Available Software. Portions of the Evaluation Software include software programs that are distributed by Youi pursuant to the terms and conditions of a license granted by the copyright owner of such software programs and which governs Licensee’s use of such software programs (“Publicly Available Software”). All Publicly Available Software used in the Evaluation Software can be found at www.youi.tv/oss. Licensee’s use of Publicly Available Software in conjunction with the Evaluation Software in a manner consistent with the terms of this Agreement is permitted, however, the Licensee may have broader rights under the applicable license for Publicly Available Software and nothing contained herein is intended to impose restrictions or limitations on the Licensee’s use of the Publicly Available Software. The warranty and limitation of liability provisions in this Agreement will apply to all of the Evaluation Software, including Publicly Available Software included in the Evaluation Software. Copies of such Publicly Available Software license agreements are available by contacting Youi at support@Youi.tv. The source code for certain portions of the Publicly Available Software included in the Software (as specified in the copyright notices) is available by contacting Youi at support@Youi.tv.
- Term and Termination. The term of this Agreement shall commence on the Effective Date and shall terminate sixty (60) days from the Effective Date. Youi may terminate this Agreement (a) immediately on written notice if Licensee breaches any term of this agreement; or (b) for any reason upon three (3) days prior written notice. Termination of this Agreement shall be without prejudice to or limitation of any other remedies or any accrued obligations of either party. Upon termination of this Agreement, Licensee shall (i) immediately cease its use of the Evaluation Software and Documentation, and (ii) immediately return to Youi all copies of the Evaluation Software and Documentation and Confidential Information (and where it cannot return any copies, Licensee shall destroy such copies) and certify in writing its compliance with this obligation. In addition to this Section, Sections 7, 9, 10 and 13 shall survive termination of this Agreement.
- Test Results. Licensee shall provide names and telephone numbers for two (2) individuals in Schedule A as contacts for this Agreement and provision of feedback. Licensee may provide reasonable feedback to Youi including, but not limited to, suitability, problem reports and test results with respect to the Evaluation Software (including any updates to the Evaluation Software as provided to Licensee by Youi). Youi will use reasonable efforts to review and comment on feedback received from Licensee. All problem reports, test results and other feedback related to or arising from the Evaluation Software and Documentation shall be the property of Youi, deemed to be Youi’s Confidential Information and may be used by Youi for any purpose it sees fit without compensation.
- Technical Support. Youi shall be under no obligation to provide any technical support for the Evaluation Software. Youi may in its sole discretion (i) fix reported errors; (ii) provide Licensee with updates to the Evaluation Software for installation by Licensee; and (iii) provide Licensee with support and consultation concerning the Evaluation Software and Documentation.
- Licensee acknowledges that the Evaluation Software, and Documentation is the “Confidential Information” of Youi. Confidential Information shall be retained in confidence by Licensee and shall be used, disclosed, and copied solely for the purposes of, and in accordance with, this Agreement. Licensee shall only disclose Confidential Information to those employees of Licensee or its Contractors on a “need to know” basis (where “Contractor” means any third party involved in the testing or evaluation of the Evaluation Software that has entered into a written agreement with Licensee containing obligations of confidence substantially similar to those contained in this Agreement). Licensee shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, disclosure or publication of the Confidential Information.
- Licensee shall not be bound by any obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which: (i) was known by Licensee prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to Licensee by a third party provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; (iv) is independently developed by Licensee, as evidenced by Licensee; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, subject to Licensee using reasonable efforts to provide prior notice to Youi to allow it to seek protective or other court orders.
- Licensee understands and agrees that, notwithstanding any other provisions of this Agreement, a breach of the provisions herein may cause Youi irreparable damage for which recovery of money damages would be inadequate, and that Youi may therefore be entitled to obtain timely injunctive relief to protect Youi’s rights under this Agreement in addition to any and all remedies available at law or equity.
- Warranty. THE EVALUATION SOFTWARE, DOCUMENTATION AND CONFIDENTIAL INFORMATION PROVIDED TO LICENSEE BY YOUI UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. YOUI DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE EVALUATION SOFTWARE, DOCUMENTATION AND CONFIDENTIAL INFORMATION, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOUI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. THE EVALUATION SOFTWARE MAY CONTAIN LOCKOUT FEATURES THAT WILL CAUSE IT TO STOP FUNCTIONING.
- Limitation of Liability. IN NO EVENT SHALL YOUI NOR ANY OF ITS AGENTS OR SUPPLIERS BE LIABLE FOR ANY DAMAGES ARISING UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, LOST DATA OR LOST PROFITS EVEN IF YOUI OR SUCH AGENT OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THIS INCLUDES WHETHER ANY SUCH DAMAGES OR LOSSES ARISES OUT OF CONTRACT (INCLUDING FUNDAMENTAL BREACH) TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. LICENSEE ACKNOWLEDGES THAT THE LIMITATIONS DESCRIBED IN THIS ARTICLE AND THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE A FUNDAMENTAL PART OF THIS AGREEMENT. IN SOME JURISDICTIONS ADDITIONAL RIGHTS APPLY IN WHICH CASE SOME OF THE ABOVE MAY NOT APPLY TO YOU.
- Export Law Compliance. Licensee acknowledges and agrees that the Evaluation Software and Documentation may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Licensee shall comply with all export and import control regulations of such countries. Licensee shall not use the Evaluation Software or Documentation for any purpose prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation.
- Notices. Any and all notices or other information to be provided by one party to another shall be in writing and shall be deemed sufficiently given when sent to the other party (at the corresponding address set out at the beginning of this Agreement) by prepaid registered or certified first-class mail, email or facsimile transmission, or hand delivery. Such notices shall be deemed to have been received five (5) business days after mailing if sent by prepaid registered or certified first-class mail, and the following business day if sent by email or facsimile transmission or delivered by hand.
- General. (a) No party shall use the name of the other in any advertising, public relations or media release without the prior written consent of the other. (b) This Agreement may only be modified by an instrument in writing signed by each party’s duly authorized representatives. (c) Nothing contained in any purchase order, purchase order acknowledgement, or invoice shall in any way modify, add to, or delete from, the terms and conditions of this Agreement. (d) This Agreement and the licenses granted hereunder may not be assigned, sublicensed or otherwise transferred by Licensee (whether voluntarily, by operation of law, or otherwise) without the prior written consent of Youi. (e) No consent by either party to, or waiver of, a breach by the other party will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by such other party. (f) This Agreement constitutes the entire agreement between the parties and supersedes all other agreements between the parties concerning the subject matter herein, including any shrinkwrap or electronic license agreement displayed upon the installation of the Evaluation Software. (g) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.