License Agreement for Self-hosted Solutions
These License Agreement for Self-hosted Solutions (this "Agreement") constitute a legally binding contract between You and Yva.AI, Inc., a Delaware corporation with its principal place of business located at 2445 Augustine Drive, Suite 150, Santa Clara, California 95054 USA. "You" (or "Customer") means the entity you represent in accepting this Agreement or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don't have the legal authority to bind your employer or the applicable entity please do not click "I agree" (or similar button or checkbox) that is presented to you. PLEASE NOTE THAT IF YOU SIGN UP FOR THE SOFTWARE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS AGREEMENT, AND (C) THE WORD "YOU" IN THIS AGREEMENT WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
This Agreement is effective as of the date you first click "I agree" (or similar button or checkbox) or use or access the Software, whichever is earlier (the "Effective Date"). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking "I agree" (or similar button or checkbox) at the time you register for the Software, place an Order or pay our Invoice for the Software. For No-Charge Services, you also indicate your assent to this Agreement by accessing or using the applicable No-Charge Service.
If the Software is accompanied by a hard copy of a separate agreement with Yva or an Yva Reseller governing terms of your use of the Software, then, in the case of any discrepancy in content between the text of this Agreement and the text in the hard copy of such separate agreement, this Agreement shall prevail.
"Yva", "Yva.AI," "we" or "us", means Yva.AI, Inc., a Delaware corporation with its principal place of business located at 2445 Augustine Drive, Suite 150, Santa Clara, California 95054 USA.
"Administrators" mean the personnel designated by you who administer the Software to End Users on your behalf.
"Affiliate" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
"Cloud Services" means cloud-based solutions, including Yva People Analytics Cloud Services, Yva Websites and any client software we provide as part of the Cloud Services. The term "Cloud Services" does not cover Yva Self-hosted Solutions.
"Self-hosted Solutions" means downloadable software, including Yva People Analytics Self-hosted Solutions and any client software we provide as part of the Self-hosted Solutions. The term "Self-hosted Solutions" does not cover Yva People Analytics Cloud Services and Yva Websites.
"Documentation" means our standard published documentation for the Software.
"End User" means an individual you or an Affiliate permits or invites to use the Software. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals interacting with the Software as your counterparts are also considered End Users.
"End User Account" means an account established by you or an End User to enable the Software to access the End User's Corporate Activity Data and/or collect End User Answers to Surveys.
"End User Corporate Activity Data" means data collected and processed by the Software from your corporate sources and third-party services which you explicitly and voluntary connected to the Software. This corporate activity data may contain End Users' email messages, calendar records, customer relationship management ("CRM") data, End Users' corporate messenger data (e.g. Slack), corporate productivity platforms (e.g. GitHub, Jira) data, etc. For the avoidance of doubt, that the term "End User Corporate Activity Data" does not include "End User Answers to Surveys".
"End User Answers to Surveys" means End Users' answers to engagement surveys, 360 feedback, performance review feedback, end-user comments.
"Feedback" means comments, questions, ideas, suggestions or other feedback relating to the Software and Support.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
"Notification Email Address" means the email address(es) you used to register for a Software account or otherwise sign up for a Software. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
"Order" means Yva's applicable online order page(s), flows, in-product screens or other Yva-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. Orders may also include Additional Services and No-Charge Services.
"Our Deliverables" means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.
"Our Technology" means the software (including all No-Charge Services), Our Deliverables, their "look and feel", any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
"Sensitive Data" means any (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver's license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
"Subscription Term" means your permitted subscription period for a Software, as set forth in the applicable Order.
"Support" means support for the Software, as further described in the Support Policy. Your Support level will be specified in the applicable Order.
"Training" means Yva-provided training and certification services.
"Your Data" means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to Software. In this context, "submit" (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the software.
"Your Materials" means your materials, systems, personnel or other resources.
2. What this Agreement covers.
2.2. "Cloud Services" Not Covered. This Agreement does not apply to our "Cloud Services", including Yva People Analytics Cloud Services, Yva Websites, use of which requires a separate Terms of Service for Cloud Services.
3. Software License and Support.
3.1. License. Subject to the terms and conditions of this Agreement and conditioned on compliance with this Agreement, Yva hereby grants to you a non-exclusive, non-sublicensable and non-transferable, limited license to use the Software and Documentation.
You may install, use and run one copy of the Software. You may make one copy of the Software solely for testing, disaster recovery or archival purposes. Any copy of the Software that you make (i) remains the exclusive property of Yva; (ii) is subject to the terms and conditions of this Agreement.
You are allowed to add to the Software any number of End Users Accounts up to the maximum amount you have paid for according to the Order.
You are allowed to use the Software only during the Subscription Term paid by you according to the Order.
3.2. Support. During the Subscription Term, we will provide Support for the software in accordance with the Support Policy found at https://yva.ai/support-policy, and the applicable Order.
4. Restrictions on Use of Software.
4.1. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of the Software; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate any Software into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.
You understand and agree that you and each other user of the Software may not use the Software on behalf of or for the benefit of any third party (other than as expressly authorized by Yva) and only in a manner that complies with all applicable laws. If your use of the Software is prohibited by applicable laws, then you aren't authorized to use the Software. Yva cannot and will not be responsible for your using the Software in a way that breaks the law. A violation of any of the above restrictions is grounds for termination of your right to use the Software.
The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. You acknowledge and agree that Yva may use these and other lawful measures to verify compliance with this Agreement and enforce Yva's rights in and to the Software.
5. Our security and data privacy policies.
5.1. Security. After installation, the Software resides on your own servers or the servers administered by you. You are solely responsible to take all security precautions to keep your servers secure and confidential. Yva does not administrate your servers and does not administer the Software and is not responsible for the security of your servers.
5.2. Privacy. After installation, the Software resides on your own servers or the servers administered by you. Yva never collects End User data from the Software without your implicit consent.
5.3. Getting Usage Statistics Data for renewals. The Software is licensed to you on subscription bases which assumes usage limitations (time, number of End Users and other limitations). In order to calculate the fees for the next billing period, you as a Customer must provide us the Usage Statistics Data generated by the Software and accept Electronic License Key.
5.4. GDPR. You acknowledge that operating the Software you may become data Controller and data Processor under the General Data Protection Regulation (Regulation (EU) 2016/679). We do not administer the Software; we do not Process your and your End Users' Personal Information.
5.5. End User Consent. You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow Administrators to have the access and carry out the actions described in this Agreement.
5.6. Your Data Compliance Obligations. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Software (ii) Your Data and its submission and use will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. We assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Software.
5.7. No Sensitive Data. You will not submit to the Software any Sensitive Data. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Data.
6. Your Indemnity.
6.1. Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) resulting from any claim arising from or related to (i) your breach of Section 5.5 "End User Consent" or any claims or disputes brought by your End Users arising out of their use of Cloud Services, (ii) your breach (or alleged breach) of Sections "Your Data Compliance Obligations" or "No Sensitive Data"; or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.
7. Using third-party products with the Software.
7.1. Third-party products. The Software may include any software component that is subject to an open-source copyright license agreement ("Open-Source Components"). Any use of the Open-Source Components shall be governed by, and subject to, the terms and conditions of their applicable licenses.
You (including your End Users) may choose to use or procure other third-party products or services in connection with the Software or implementation, customization, training or other services. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
8. Billing, renewals, and payment.
8.1. Monthly and Annual Plans. Except for No-Charge Services, all Software are offered either on a monthly subscription basis or an annual subscription basis.
8.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to the expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Software or contacting our support team. Canceling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Software continuing to be offered and will be charged at the then-current rates.
8.3. Adding Users. You may add End Users, increase storage limits, or otherwise increase your use of Software by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
8.4. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a Purchase Order number is required in order for an invoice to be paid, then you must provide such Purchase Order number to Yva by emailing the Purchase Order number to email@example.com. Other than as expressly set forth in Section "Our return policy", "Warranty Remedy", "IP Indemnification" or Changes to this Agreement", all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or another payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
8.5. Usage Statistics Data and Electronic License Key Delivery. We will deliver initial Electronic License Key for the Software to your account or through other reasonable means after we have received payment of the applicable fees. We will deliver the renewal Electronic License Keys for the Software after we have received from you the updated Usage Statistics Data generated by the Software and after we have received the payment of the applicable fees.
All deliveries under this Agreement will be electronic.
9. Our return policy.
9.1. Return Policy. As part of our commitment to customer satisfaction and without limiting the Performance Warranty in Section 17 "Warranties and Disclaimer", you may terminate your initial Order of a Software under this Agreement, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for such Software. In the event you terminate your initial Order under this Section 9, at your request (which may be made through your account with us), we will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order of the Software and only if you exercise your termination right within the period specified above. You understand that we may change this practice in the future in accordance with Section 23 "Changes to this Agreement".
10. Taxes not included.
10.1. Taxes. Your fees under this Agreement excludes any taxes or duties payable in respect of the software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
10.2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us with reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
11. If you purchased through a Reseller.
11.1. Purchase from a Reseller. If you make any purchases through an authorized partner or reseller of Yva ("Reseller"):
(a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Software if we do not receive the corresponding payment from the Reseller.
(b) Your order details (e.g., the Software you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order as communicated to us.
(c) If you are entitled to a refund under this Agreement, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
(d) Resellers are not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement.
12. No contingencies on other products of future functionality.
12.1. No contingencies. You acknowledge that the software referenced in an Order is being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of software are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any software beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
13. Evaluations, trials, and betas.
13.1. Trials and betas. We may offer certain software to you at no charge, including free accounts, trial use, and Beta Versions as defined below (collectively, "No-Charge Services"). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this Section 13, the terms and conditions of this Agreement governing software, including Section 4 ("Restrictions on Use of Software"), fully apply to No-Charge Services. We may modify or terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta software, and any pre-release and beta features within generally available software, that we make available (collectively, "Beta Versions") are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available software. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section. All information regarding the characteristics, features or performance of any No-Charge Services (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN this Agreement, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE SERVICES WILL BE US$100.
14. IP Rights in the Software and Feedback.
14.1. IP Rights and Feedback. You understand that Yva owns the Software and acknowledge and agree that:
the Software and Documentation are licensed, not sold, by Yva and you do not and will not have or acquire under or in connection with this Agreement any ownership interest in the Software, Documentation or Website or in any related intellectual property rights;
Yva is and will remain the sole and exclusive owner of all right, title and interest in and to the Software and Documentation, including all intellectual property rights relating thereto, subject only to the rights of third parties in Open-Source Components and the limited license granted to you under this Agreement.
15.1. Parties' Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the software will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 15. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
16. Term and Termination.
16.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
16.2. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
16.3. Termination for Convenience. You may choose to stop using the software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section "Our return policy", upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
16.4. Effects of Termination. Upon any expiration or termination of this Agreement, you must cease using all software and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of this Agreement (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the software during the applicable Subscription Term. If you terminate this Agreement in accordance with Section 16.2 "Termination for Cause", we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate this Agreement in accordance with Section 16.2 "Termination for Cause", you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
16.5. Survival. The following provisions will survive any termination or expiration of this Agreement: Sections 4 "Restrictions on Use of Software", 7 "Third-Party Products", 8.4 "Payment", 10 "Taxes not included", 13 "Evaluations, trials, and betas" (disclaimers and use restrictions only), 14 "IP Rights in the software and Feedback", 15 "Confidentiality", 16 "Term and Termination", 17.4 "Warranty Disclaimer", 18 "Limitation of Liability", 19 "IP Indemnification" (but solely with respect to claims arising from your use of the software during the Subscription Term), 21 "Dispute Resolution" and 25 "General Provisions".
17. Warranties and Disclaimer.
17.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
17.2. Our Warranties. (the "Performance Warranty"). We warrant, for your benefit only, that we use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses or similar harmful materials into the Software.
17.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Software for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Services. Our sole liability, and your sole and exclusive remedy for any breach of the Performance Warranty, are set forth in this Section 17.
17.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, ALL SOFTWARE, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED "AS IS," AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THIS AGREEMENT, WE DO NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE SOFTWARE NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
18. Limitation of Liability.
18.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
18.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S AND ITS SUPPLIERS' AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
18.3. Excluded Claims. "Excluded Claims" means (1) amounts owed by you under any Orders, (2) either party's express indemnification obligations in this Agreement and (3) your breach of Section 4 "Restrictions on Use of Software".
18.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
19. IP Indemnification.
19.1. IP Indemnification. We will defend you against any claim brought against you by a third party alleging that the software, when used as authorized under this Agreement, infringes a patent right granted in the United States, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a "Claim"), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys' fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the software is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Software in accordance with this Agreement; (ii) substitute a substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a Software in the twelve (12) month period immediately preceding the Claim is less than $50,000 (USA Dollars); (2) if the Software is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Yva product, software, service or equipment, but solely to the extent the alleged infringement is caused by such a combination; (4) to unauthorized use of software; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 6 "Your Indemnity" or (z) any third-party deliverables or components contained with the software or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 19 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS WE PROVIDE UNDER THIS AGREEMENT.
20. Publicity Rights.
20.1. Publicity Rights. We may identify you as a Yva customer in our promotional materials. We will promptly stop doing (wherever it's technically possible and under our control) upon your request sent to firstname.lastname@example.org.
21. Dispute Resolution.
21.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section
21.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 21.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
21.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party's rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys' fees.
21.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 21.1 (Informal Resolution) and 21.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
21.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
22. Export Restrictions.
22.1. Export Restrictions. The software is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the software (or any part thereof). You shall not (and shall not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department's Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department's list of Specially Designated Nationals and Consolidated Sanctions list (collectively, "Prohibited Persons"); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
23. Changes to this Agreement.
We may modify the terms and conditions of this Agreement (including Our Policies) from time to time, with notice to you in accordance with Section 25.1 "Notices" or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
23.1. No-Charge Services. You must accept the modifications to continue using the No-Charge Services. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Services.
23.2. Paid Subscriptions. Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 8.2 "Renewals". Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected software for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
23.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
24. Changes to the software.
24.1. Software Changes. Yva.AI warrants to You that for a period of sixty (60) days from Your Effective Date the Software will substantially conform in all material respects to the specifications set forth in the Documentation when installed, operated and used as recommended in the Documentation and in accordance with this Agreement.
We may make changes to the software, and we may update the applicable Documentation accordingly. Subject to our obligation to provide software and Additional Services under existing Orders, we can discontinue any software, any Additional Services, or any portion or feature of any software for any reason at any time without liability to you.
25. General Provisions.
25.1. Notices. Any notice under this Agreement must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Yva.AI, Inc., 2445 Augustine Drive, Suite 150, Santa Clara, California 95054 USA Attn: General Counsel. Your notices to us will be deemed given upon receipt.
25.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such a party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
25.3. Assignment. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties' permitted successors and assigns.
25.4. Entire Agreement. This Agreement is the entire agreement between you and us relating to the software and any other subject matter covered by this Agreement, and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the software or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
25.5. Conflicts. In the event of any conflict between the main body of this Agreement and Our Policies will control with respect to their subject matter.
25.6. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 23 "Changes to this Agreement", any amendments or modifications to this Agreement must be executed in writing by an authorized representative of each party.
25.7. Interpretation. As used herein, "including" (and its variants) means "including without limitation" (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
25.8. Independent Contractors. The parties are independent contractors. this Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.