Yellowbrick End User License Agreement for Software ​

Please read this document carefully before proceeding. By signing below or accessing or using the Yellowbrick software (the first to occur being the “Effective Date”), you are agreeing to the terms of this end user license agreement (“Agreement”).

This is a legal agreement between you (“Customer”) and Yellowbrick Data, Inc., a Delaware corporation with offices at 660 W. Dana Street, Mountain View, CA 94041 (“Yellowbrick”). As used herein, each of Yellowbrick and Customer may be referred to as a “Party” and collectively as the “Parties.”

This Agreement governs your use of Yellowbrick’s various software products, including any updates and upgrades Yellowbrick implements thereto (“Licensed Software”).

1. License Grant and Restrictions ​

1.1      License Grant. Subject to the terms and conditions of this Agreement, Yellowbrick hereby grants to Customer a non-exclusive, non-sublicensable, non-assignable license to use the License Software, in object code form, provided to Customer by subscription.

1.2      Additional Restrictions. Customer shall not, and shall not permit any third party, including any parent, subsidiary, affiliate, or agent of Customer, to:

(a)      assign, sell, lease, distribute, license, sublicense or otherwise transfer or attempt to transfer rights to the Licensed Software;
(b)      extract, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or algorithms from the Licensed Software, except to the extent expressly permitted by applicable law notwithstanding this restriction;
(c)      modify, translate, or create derivative works, adaptations or compilations of, or based on, any part of the Licensed Software;
(d)      remove or otherwise interfere with any part of the Licensed Software designed to monitor Customer’s compliance with this Agreement;
(e)      copy the Licensed Software, in whole or in part, except as specifically authorized by this Agreement;
(f)      remove any proprietary notices or labels on or in any of the Licensed Software; or
(g)      use the Licensed Software for operations of any type on aircraft, ships, nuclear plants, life support machines, communications systems or any other equipment in which the malfunctioning of the Licensed Software could lead to personal injury, death or environmental damage.

1.3      Reservation of Rights. Except for the limited rights granted in Section 1.1, Yellowbrick retains all right, title and interest in and to the Licensed Software, and all intellectual property rights therein and thereto. Nothing in this Agreement shall constitute a transfer of any ownership rights by Yellowbrick to Customer in the Licensed Software or otherwise. All rights in the Licensed Software not expressly granted hereunder are reserved by Yellowbrick and its licensors.

1.4      Processing of any Personal Data. To the extent that Yellowbrick receives, or is processing personal data of Customer or on Customer’s behalf in a capacity as data processor, Customer will ensure that it has secured all necessary consents, registrations and notifications as may be required to enable the lawful transfer of the personal data to Yellowbrick and in order for Yellowbrick to process such personal data to the extent required for, and for the duration of, Yellowbrick’s provision of the Licensed Software to the Customer. Yellowbrick’s use of any such data shall be subject Yellowbrick’s Privacy Policy which can be found at Yellowbrick.com.

1.5      Updates. During the term of this Agreement, Yellowbrick may update the Licensed Software to reflect changes in, for instance, laws, regulations, technology, industry practices and patterns of use. Any updates will not materially reduce the level of performance, functionality, security or availability of the Licensed Software.

2. Disclaimers and Limitations of Liability ​

2.1      Disclaimer. YELLOWBRICK HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR ANY OTHER MATERIALS AND SERVICES FURNISHED OR PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. YELLOWBRICK DOES NOT WARRANT THAT EACH WILL BE ERROR-FREE OR SECURE, OR WILL WORK WITHOUT INTERRUPTIONS.

2.2      Limitation of Liability. IN NO EVENT WILL YELLOWBRICK BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR ANY OTHER SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER CLAIM OR CAUSE OF ACTION, EVEN IF YELLOWBRICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YELLOWBRICK’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE AMOUNTS PAID BY CUSTOMER TO YELLOWBRICK FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS WHICH GAVE RISE TO THE DAMAGES.

3. Term and Termination ​

3.1      Term. Unless terminated pursuant to Section 3.2, this Agreement shall commence on the Effective Date and continue for the term of the Licensed Software purchased by Customer and any renewal thereof (“Subscription Term”).

3.2      Termination for Cause. Either Party may, by providing written notice to the other Party, terminate this Agreement if the other Party is in material breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after the non-defaulting Party provides the other Party with written notice of such breach.

3.3      Effect of Termination. Upon termination of this Agreement pursuant to Section 3.2, or upon expiration of the Subscription Term, the license granted to Customer in Section 1.1 will immediately cease and Customer will have no further rights to use the Licensed Software. Subject to the following sentence, upon the effective date of expiration or termination of this Agreement any current or future payment obligations of Customer to Yellowbrick under this Agreement or order form will become due immediately. In addition, if Customer terminates this Agreement pursuant to Section 3.2, Customer shall receive a refund of any pre-paid Licensed Software fees paid to Yellowbrick for the period from the date of termination to the expiry of the Subscription Term, had this Agreement not been so terminated by Customer.

3.4      Survival. The following provisions will survive any termination of this Agreement: 1.2, 1.4, 2.2, 3 and 5.

4. Indemnity ​

Yellowbrick shall defend and pay damages finally awarded for, or at its option settle, any third-party claim brought against Customer to the extent it alleges that any of the Licensed Software used as authorized in this Agreement infringes any intellectual property rights of any third party; provided that Customer provides Yellowbrick with (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; (iii) all information and assistance reasonably requested by Yellowbrick in connection with the defense or settlement of such claim; and (iv) not making any admission of liability, agreement or compromise in relation to any claim without the prior written consent of Yellowbrick. In the event any such claim is brought or threatened, Yellowbrick may, at its sole option and expense: (a) procure for Customer the right to continue to use the Licensed Software; (b) modify or amend the Licensed Software to make it non-infringing; (c) replace the Licensed Software with a non-infringing Licensed Software having substantially similar capabilities; or (d) if (a) – (c) are not commercially feasible, terminate this agreement immediately by notice in writing to Customer, and refund any pre-paid Licensed Software fees paid by Customer to Yellowbrick for the period from the date of termination to the expiry of the Subscription Term, had this Agreement not been so terminated by Yellowbrick. Notwithstanding the foregoing, Yellowbrick will have no liability to Customer for any claim of infringement to the extent such claim arises out of or is based upon (i) any modification of the Licensed Software not made or authorized in writing by Yellowbrick; (ii) Customer’s failure to use the Licensed Software in accordance with this Agreement, or instructions provided by Yellowbrick, or otherwise using the Licensed Software for purposes for which it was not designed or intended; (iii) Licensed Software updates provided by Yellowbrick to comply with the designs, requirements or specifications requested by Customer; (iv) use of any specified release of the Licensed Software after Yellowbrick notifies Customer that continued use of such release may subject Customer to a claim of infringement, if Yellowbrick provides Customer with a replacement release; or (v) combination of the Licensed Software with other software or products not provided by Yellowbrick. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF YELLOWBRICK AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT BY THE LICENSED SOFTWARE OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTSPATENTS OR COPYRIGHTS.

5. Miscellaneous ​

5.1      Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part without the prior written consent of Yellowbrick, which shall not be unreasonably withheld. Yellowbrick may assign or transfer this Agreement, in whole or in part. A change of control of a Party shall not be considered an assignment. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

5.2      Relationship of Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have the authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either Party except those expressly granted herein.

5.3      Backup Copies. Yellowbrick is not responsible for the backup storage of Customer’s data. Accordingly, Customer shall be responsible for the backup of its data and Customer assumes responsibility for any loss or damage from its failure to so maintain backup copies.

5.4      Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the address of the Party concerned.

5.5      Export Control. Customer agrees to comply with all applicable export control laws and regulations. Customer shall not sell, export, reexport, transfer, divert or otherwise dispose of, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

5.6      Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as, and will not be deemed to be, a waiver of such Party’s rights under this Agreement, and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or any other right or remedy that such Party is entitled by law to enforce.

5.7      Severability. If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

5.8      Integration. This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both Parties.

5.9      Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any judicial action or proceeding arising hereunder or relating hereto shall be brought in, and the Parties hereby consent to the exclusive personal jurisdiction of, the state and federal courts located in Santa Clara County, California.

5.10      Federal Government Customers. Licensed Software and the associated rights under this Agreement to use the Licensed Software include only those rights customarily provided to the public. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency wishes to receive additional rights, Yellowbrick will enter into good faith negotiations with the agency to determine whether it can accommodate the agency’s request. Any such accommodation must be included in an addendum to this Agreement.