SOFTWARE LICENSING & SERVICE AGREEMENT

This Agreement is made and entered into effect upon downloading the Yadle Installer (“Effective Date”), by and between Datawhere Inc., also known as Yadle (“Company”), having a principal place of business at 2410 Camino Ramon, Suite 351 San Ramon, California 94583, and your company (“Client”).

By executing this Agreement, whether by signature, by clicking a box online, or by any other legally recognized method, you represent and warrant you have read and understood it, you have the authority to bind your company or organization to its terms and conditions, and you agree to its terms.

  1. DEFINITIONS

    “Agreement” - this License agreement.

    “Corrections” - any corrections, changes, or workarounds we may provide you for any defects, errors, or malfunctions in our Software Product or systems.

    “Edition” - the specific package of the Yadle product licensed, which determines the available user license types and features.

    “Documentation” - our online user guides, documentation, and help and training materials, including courses, quizzes and videos.

    “Free Software Product” - means the Software Product offered to you during an evaluation period of 30 days at no cost.

    “Force Majeure” - events beyond our control, such as an act of God or act of government, including but not limited to flood, fire, earthquake, civil unrest, act of terror, provider strike or other labor problem, internet service provider failure or delay, or denial of service attack.

    “Malevolent Code” - code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

    “Other Applications” - any on or offline software application created or provided by you or any party other than Yadle, that interoperates with our Software Product.

    “Pricing Agreement” - the ordering documents specifying the pricing terms for the Software Product and other services as applicable provided by us to you, including any addenda and supplements thereto.

    “Software Product” - any computer programs, applications or scripts created by us and used or accessed by you, directly or indirectly, including all functionality described in the Documentation, or any part thereof.

    “User,” “user” - an individual authorized to use our Software Product or Support service.

    “We,” “we,” “Us,” “us,” “Our,” or “our” - Yadle (Yadle), Datawhere Inc.

    “You,” “you,” “Your,” or “your” - the company or other legal entity represented by the person executing the Agreement, as well as affiliates of that company or entity.

    “Your Data” - any electronic data or information supplied by or for you and not part of our Software Product, that is submitted, collected, processed or managed by or for you in conjunction with your use of the Software Product.

    “Your Intellectual Capital" - your data and the configuration of business rules, workflows and other database attributes created or modified for you.

  2. FREE LICENSE

    2.2 Pricing. Yadle offers a 30-day evaluation period at no cost. The pricing is defined in Appendix A of this Agreement and shall define the pricing agreed between the parties.

    2.2 Special Terms. When you use Software Product during the evaluation period of 30 days at no cost starting from the time you your Yadle Installer, all the terms and conditions in this Agreement apply to you, except the following alternative terms will apply:

    • NOT WITHSTANDING THE TERMS AND CONDITIONS SET OUT IN §12 (WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), THE FREE SOFTWARE PRODUCT IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND.

    • NOT WITHSTANDING THE TERMS AND CONDITIONS SET OUT IN §13 (MUTUAL INDEMNIFICATION) WE HAVE NO DUTY TO INDEMNIFY YOU FOR ANY REASON WHATSOEVER.

  3. OUR OBLIGATIONS

    3.1. Standard Support and Upgrades. We will provide our Standard Support to you at no additional charge during the annual subscription term. We are constantly improving our Software Product and want you to benefit from such improvements. To that end, we will:

    • Provide you with corrections, changes, or workarounds (“Corrections”) for any significant defects, errors, or malfunctions in our Software Product or systems, on a timely basis, given the nature and scope of the defect.

    • Make Software Product upgrades available for download and installation at our website and notify you about major upgrades that provide significant enhancements.

    • Make release notes available and identify any significant impact upgrades may have on existing customizations.

    • Make available to you any revisions to the system Documentation developed to reflect upgrades and improvements to the Software Product.

    • Generate new licenses to cover upgraded releases or replacement licenses as applicable

    3.2. Technical Support. We will provide our standard support to you at no additional charge during the Self-Hosted annual subscription term set out in the applicable pricing set out in Appendix A. As part of the standard support, we will:

    • Provide you with support for the most recent release of our Software Product.

    • Support standard functionality and Software Product defects. It does not include the provision of customization advice or consulting services. Neither does it cover problems caused by your system administrator, such as your accidental or inadvertent destruction of your own data, or a Force Majeure.

    • Yadle offers Web-based customer support. In the application, there is a “Talk to Yadle” section in the top right of the application where you may submit inquiries. You will be notified via email or telephone as support tickets move through the process to resolution. We shall respond to and use reasonable commercial efforts to resolve issues deemed to be Bugs in accordance with the priority levels.

    3.4 Protection of your Data.

    If you provide us with access to Your Intellectual Capital for purposes of consulting or provision of support, we will take organizational, physical, and technical precautions to protect the security of Your Data. Those precautions will include measures for preventing access, use, modification or disclosure of Your Data by our employees and contractors except (a) to provide consulting or support services, (b) as compelled by law, or (c) as you expressly permit in writing.

  4. LICENSING MODELS

    4.1 Licensing Rights and Models. Licensee must purchase and allocate an individual Software License for each individual human being who is authorized to access or use the Software (regardless of whether the individual accesses or uses the Software). Licensee may only allocate Software Licenses to employees or contractors of the Licensee or its Affiliates, and employees or contractors of the Licensee’s customers and business partners. Software Licenses cannot be shared, re-allocated, or exchanged between individuals, except that Software Licenses may be re-allocated to another individual if the original individual is no longer employed by Licensee or has been permanently assigned to a new role that does not require access to the Software. To re-allocate such License to another individual, the original individual’s user account must first be deleted from the system. Until the user’s account has been deleted from the system, a user license is required even if the user is no longer an employee or contractor of Licensee. When Licensee allocates a Software License to an individual, Licensee must also assign unique login credentials to the individual for the purpose of allowing the individual to access the Software. Licensee must purchase an additional Software License for each additional login and password combination assigned to an individual.

    For each Software product that you purchase from Yadle, the product will be licensed (and not sold) to you on the terms of one or two license models: Software as a Service or Self-Hosted, and subject to the other terms and conditions herein. Whichever licensing model applies, Licensee shall not at any one time use more copies of the Software than the total number of valid licenses purchased by Licensee.

  5. RESTRICTIONS ON USE

    5.1 Usage Limits. Our Software Product is subject to usage limits, including those based on the Edition and limits on the number and type of licenses purchased. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you agree to pay for the additional necessary licenses for the Software Product promptly upon our providing you with a new pricing, and/or pay any invoice for excess usage in accordance with Section 9 (Fees and Payment).

    5.2 Usage Control. You will be responsible for user compliance with this Agreement, as well as the accuracy, quality and legality of Your Intellectual Capital, including the means by which you acquire Your Data. You agree to use our Software Product only in accordance with the Yadle Pricing set out in Appendix A, the Documentation and applicable laws and government regulations. It is your responsibility to comply with any terms of service for Other Applications that you use in conjunction with our Software Product.

    5.3 Usage Restrictions. You will not (a) use more than one user account to be logged in per device at a time, or (b) make any part of our Software Product available to, or use any Software Product for the benefit of, anyone other than you or users, or (c) sell, resell, license, sublicense, distribute, rent or lease the Software Product. You understand that sharing of accounts is prohibited. You will not circumvent this by using one or a few user accounts across several devices and/or several users. You will not circumvent a contractual usage limit, or copy the Software Product or any part thereof, including a feature, function, or user interface, except as permitted in writing by us. You will not frame or mirror any part of any our Software Product, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Documentation. You may not access any part of our Software Product in order to build a competitive product or service, or reverse engineer any part of our Software Product (to the extent such restriction is permitted by law).

    5.4 Test Licenses. You may wish to purchase test licenses for use in development and testing. Any additional fees associated with such licenses will be set forth in the Yadle Pricing set out in Appendix A.

    5.5 External-Facing Service Behavior. You and your users are solely responsible for complying with applicable law in any use of cookies or other tracking technologies, as well as the U.S. Digital Millennium Copyright Act.

    5.6. Removal of Software Product and Other Applications. If a third party contends that any content in our Software Product violates applicable law or third-party rights, and if we are directed to remove such content in our Software Product, we will remove such content as soon as practicable in an upgrade to our Software Product. If we receive information that integration with any Other Application in Your Intellectual Capital may violate the terms set out herein or third-party rights, you will promptly disable or modify such integration with the Other Application to resolve the potential violation. If we so notify you, and you choose not to install the upgrade or do not remove such content, you are solely responsible to the third party for any violations of their legal rights for continued use of such content.

    5.7 Export Compliance. Our Software Product, other technology we make available to you, and any derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S.
    government denied-party list. You shall not permit users to access or use any Software Product in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.

    5.8 Anti-Corruption. You agree that You have not received, been offered, solicited, or accepted any illegal (in accordance with applicable State and Federal law) or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement.

    5.9 Anti-Terrorism. Neither Party is in violation of any U.S. Anti-Terrorism (including applicable Executive Orders) or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

    5.10 Usage Rights. Licensee is authorized to use the Software in machine readable, object code form only (subject to clause 6), and Licensee shall not: (a) assign, sublicense, sell, distribute, transfer, pledge, lease, rent, lend, share or export the Software, the Documentation or Licensee's rights under this Agreement; (b) alter or circumvent the license other copy protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (c) implement or use any method or mechanism designed to enable product functionality not available in the Software but available in (i) other Yadle products; or (ii) other Yadle releases of the same product (d) (subject to clause 6) modify, adapt, translate or create derivative works based on the Software or Documentation; (e) use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an "Authorized Project") or to provide a service (whether or not any charge is made) to any third party; (f) allow or permit anyone (other than Licensee and Licensee's authorized employees to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation; (g) copy or install the Software or Documentation other than as expressly provided for in this AGREEMENT; or (h) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights or other intellectual property rights of Yadle or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). For purposes of this clause 5, the term "Software" shall include any derivatives of the Software. Unless Licensee has purchased an Individual License or a Login-Based License, if the Software is moved from one computer to another, the issuing of replacement or substituted license keys is subject to and strictly in accordance with Yadle’s License Transfer Policy, which is available on Yadle’s website and which requires a fee to be paid in certain

  6. SOURCE CODE

    Notwithstanding that clause 1 defines “Software” as an object code version and that clause 5 provides that Licensee may use the Software in object code form only:

    6.1 Use of Source Code. If Yadle has agreed to license to Licensee (including by way of providing SDKs, upgrades, updates or enhancements and customization) source code or elements of the source code of the Software, the intellectual property rights in which belong either to Yadle or to a Third Party Licensor (“Source Code”), Licensee shall be licensed to use the Source Code as Software on the terms of this AGREEMENT and: (a) notwithstanding clause 3 (c), Licensee may use the Source Code at its own risk in any reasonable way for the limited purpose of enhancing its use of the Software solely for its own internal business purposes and in all respects in accordance with this AGREEMENT; (b) Licensee shall in respect of the Source Code comply strictly with all other restrictions applying to its use of the Software under this AGREEMENT as well as any other restriction or instruction that is communicated to it by Yadle at any time during the Agreement (whether imposed or requested by Yadle or by any Third-Party Licensor);

    6.2 LGPL Source. To the extent that the Software links to any open source software libraries (“OSS Libraries”) that are provided to Licensee with the Software, nothing in the Agreement shall affect Licensee’s rights under the licenses on which the relevant Third-Party Licensor has licensed the OSS Libraries, as stated in the Documentation. To the extent that Third Party Licensors have licensed OSS Libraries on the terms of v2.1 of the Lesser General Public License issued by the Free Software Foundation, those OSS Libraries are licensed to Licensee on the terms of the LGPL and are referred to in this clause 6.2 as the LGPL Libraries. Yadle will at any time during the Agreement, at the request of Licensee and subject to Licensee paying to Yadle a charge that does not exceed Yadle’s costs of doing so, provide Licensee with the source code of the LGPL Libraries (the “LGPL Source”) in order that Licensee may modify the LGPL Libraries in accordance with the LGPL, together with certain object code of the Software necessary to enable Licensee to re-link any modified LGPL Library to the Software (the “Object”).

    6.3 Source Code Indemnification. Notwithstanding any other term of the Agreement, Yadle gives no express or implied warranty, undertaking or indemnity whatsoever in respect of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source or the Object, all of which are licensed on an “as is” basis, or in respect of any modification of the Source Code, the OSS Libraries (including the LGPL Libraries) or the LGPL Source made by Licensee (“Modification”). Licensee may not use the Object for any purpose other than its use of the Software in accordance with this Agreement. Notwithstanding any other term of the Agreement, Yadle shall have no obligation to provide support, maintenance, upgrades or updates of or in respect of any of the Source Code, the OSS Libraries (including the LGPL Libraries), the LGPL Source, the Object or any Modification. Licensee shall indemnify Yadle against all liabilities and expenses (including reasonable legal costs) incurred by Yadle in relation to any claim asserting that any Modification infringes the intellectual property rights of any third party.

  7. BACK-UP COPY

    7.1 Storing a Copy. Licensee may store one copy of the Software and Documentation off-line and off-site in a secured location within the Home Country that is owned or leased by Licensee in order to provide a back-up in the event of destruction by fire, flood, acts of war, acts of nature, vandalism or other incidents. In no event may Licensee use the back-up copy of the Software or Documentation to circumvent the usage or other limitations set forth in this Agreement.

  8. OTHER APPLICATIONS

    8.1 Acquisition of Other Applications. Any rights or obligations associated with the acquisition by you of other applications, products or services, and any exchange of data between you and any third-party provider, are held between you and that provider. We do not warrant or support Other Applications.

    8.2 Other Applications and Your Intellectual Capital. If you install or enable any Other Application for use with our Software Product, you may be required to grant permission to the provider of that Other Application to access Your Intellectual Capital as required for the interoperation of that Other Application with the Software Product. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by any Other Application.

    8.3 Integration with Other Applications. The Software Product may contain features designed to interoperate with Other Applications. To use such features, you may be required to obtain access to Other Applications from their providers, and may be required to grant us access to your account(s) for the Other Applications. If the provider of the Other Application ceases to make the Other Application available for interoperation with the corresponding Software Product on reasonable terms, or changes the API in a manner which breaks the integration with the Software Product, you will not be entitled to any refund, credit, or other compensation.

  9. FEES AND PAYMENT

    9.1 Fees. You agree to the pricing as defined in Appendix A or the then-current price list. A free evaluation period applies for 30 days along with a 60-day grace period as defined in clause 12.2. Except as otherwise stated herein, you agree that fee payment obligations are non-cancelable and fees paid are non-refundable. You understand that licenses and services purchased can be increased at any time but cannot be decreased until the end of the applicable term.

    9.2 Invoicing and Payment. As applicable, you will provide us with a valid purchase order or alternative payment authorization documents acceptable to us. We accept PayPal, wire transfers, and credit card payments. If you opt for credit card or PayPal payments, you authorize us to charge such payment method for our Software Product as defined in the Yadle Pricing set out in Appendix A. We will invoice you in accordance with those pricing guidelines.

    9.3 Payment Due Dates. Unless otherwise stated in the Agreement, payment is due within 30 days from start of the month following starting to pay for the service. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.

    9.4 Overdue Invoices. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

    9.5 Suspension of Service and Acceleration. If any amount owed by you is 30 (thirty) or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend our Service to you until such amounts are paid in full. We will give you at least 10 days' prior notice that your account is overdue, in accordance with §16.1 (Manner of Giving Notice), before suspending Service to you.

    9.6 Payment Disputes. We will not exercise our rights under §9.4 (Overdue Invoice) or §9.5 (Suspension of Service and Acceleration) above if you are disputing the relevant charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

    9.7 Taxes. You are responsible for paying any required taxes not invoiced by us for any purchase under this agreement.

    9.8 Prospective Functionality. You acknowledge that your purchase of our Software Product is not contingent on the delivery of any prospective functionality or features, or dependent on any oral or written comments made by us regarding future functionality or features.

    9.9 Providing Information to Yadle for Billing Purposes. You agree to provide information which may be required to bill you for the Yadle service. This may include running a script and provide results to identify information such as number of users or data indexed.

  10. PROPRIETARY RIGHTS AND LICENSE GRANTS

    10.1 Reservation of Rights. Our Software Product is protected by domestic and international intellectual property laws and treaties, including copyright laws. Our Software Product is licensed, not sold. Whether you have paid for your licenses or not, you may only access and use our Software Product in accordance with this Agreement. Subject to the limited rights expressly granted hereunder, we reserve all of our right, title and interest in and to our Software Product, including all of our related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.

    10.2 License by us to use our Software Product. We grant to you a specific number of limited, non-exclusive, non-sublicensable, nontransferable licenses, to use our Software Product pursuant to the applicable prices defined in Appendix A.

    10.3 License by you to use your Feedback. Subject to the restrictions on Confidential Data, you grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our Software Product any suggestion, enhancement request, recommendation, or other feedback provided by you or your Users relating to the operation of our Software Product.

    10.4 Federal Government End Use Provisions. We provide the Software Product, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to our Software Product include only those rights customarily provided to the public as defined in this Agreement. 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 has a need for rights not granted under these terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

    10.5 Third Party Software. Our Software Product may contain software, which originated with third parties and without limiting the general applicability of the other provisions of this Agreement, you agree: (a) the right, title and interest to any third-party software incorporated in the Software Product remains with the third-party, which supplied the same; and (b) you will not distribute, disseminate, or otherwise provide any such third-party software available with the Software Product, in any manner, outside the scope set forth in this Agreement.

  11. CONFIDENTIALITY

    11.1 Definition. "Confidential Information" is all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, either expressly designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information may include, but is not limited to, business information or ideas, trade secrets, proprietary data, personnel data, suppliers, procedures, cost of merchandise, sales data, price lists, financial information, business plans, prospect names, business opportunities, confidential business reports, customer lists, data or contracts, computer software usage, technical reports on products and services, product data or specifications, technical know-how, formulae, diagrams, flow charts, drawings, source code, object code, program listings, test results, processes, inventions, research projects or product development.

    11.2 Exceptions. Confidential Information will remain the exclusive property of the Disclosing Party, unless and until the Receiving Party can prove that it (a) became publicly known through no fault of the Receiving Party, (b) was properly and lawfully known to Receiving Party, without restriction, prior to disclosure by the Disclosing Party, (c) became properly and lawfully available to Receiving Party through a third party, or (d) was independently developed by Receiving Party.

    11.3 Standard of Protection. Receiving Party will hold in confidence and not disclose Confidential Information to anyone, except as necessary to carry out the terms of this Agreement, or as authorized by the Disclosing Party in writing, and agrees to limit access to Confidential Information of the Disclosing Party to employees and contractors of the Receiving Party who have signed confidentiality agreements containing protections no less stringent than those herein.

    11.4 Compelled Disclosure. If Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, Receiving Party agrees to give Disclosing Party prompt notice of the compelled disclosure. Receiving Party further agrees to give reasonable assistance to Disclosing Party, to the extent legally permitted, and at Disclosing Party's cost, in any contest by Disclosing Party to the compelled disclosure.

  12. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

    12.1 Representations. Each party represents that it has entered into this Agreement in good faith and has the legal power to do so.

    12.2 60-Day Grace Period. We offer a 60 (sixty) day grace period which includes the evaluation period of 30 days at no cost plus an additional 30 days, whereby if you are not satisfied with Yadle, you may cancel for any reason within 60 (sixty) days following downloading Yadle and not pay for the services during that period. Unless specifically excluded in the Agreement, this guarantee covers the software and all support and consulting services directly related to the Yadle implementation. If you request services that are not directly related to Yadle, such as cleaning up your data for import, these may not be included in the guarantee; however, any such exceptions will be spelled out in the Agreement.

    12.3 Limited Warranties. We warrant that we will not materially decrease the overall security of our Software Product during the applicable term; that the Software Product will perform materially in accordance with the applicable Documentation, that, subject to §8.3 (Integration with Other Applications), we will not materially decrease the functionality of the Software Product during the current term, and that the Software Product will not introduce Malevolent Code into your systems. For any breach of the warranties described in this subsection, your exclusive remedies are those described in §15.4(Termination) and 15.5 (Refund or Payment upon Termination).

    12.4 Mutual Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OUR SOFTWARE PRODUCT, ANY THIRD-PARTY SOFTWARE OR SUPPORT SERVICES ARE PROVIDED "AS IS" AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER OR NOT EXPRESS, IMPLIED, STATUTORY NOR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY SOFTWARE OR SOFTWARE PROVIDERS. WE MAKE NO REPRESENTATION AND WARRANTY WHATSOEVER WITH REPECT TO THIRD PARTY SOFTWARE INCORPORATED INTO THE SOFWARE PRODUCT.

  13. MUTUAL INDEMNIFICATION

    13.1 Our Indemnification of You. Subject to the limitations set forth above in Paragraph 9, We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that your use of our Software Product or Support and Upgrade Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of such a claim against you, or for amounts paid by you under a settlement approved by Us in writing of such a claim, provided you (a) promptly give us written notice of such a claim, (b) give us sole control of the defense and settlement of such a claim, except that we may not choose to settle any such claim unless it unconditionally releases you of all liability, and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to our Software Product we may choose, in our discretion and at no cost to you, to (a) modify our Software Product so that it no longer infringes or misappropriates, without breaching our warranties under §12.3 (Limited Warranties), (b) obtain a license to allow for your continued use of our Software Product in accordance with this Agreement, or (c) terminate this agreement and refund the aggregate license payments paid by you for the Software Product as depreciated over a three-year straight line basis. If you choose not to upgrade to a non-infringing release under (a) or to continue using the Software Product after termination of the agreement under (c), you are solely responsible to the third party for any violations of their legal rights for continued use of such content. The above defense and indemnification obligations do not apply to the extent a claim against you arises from alleged infringement or misappropriation in Your Intellectual Capital, any Other Application or your breach of this Agreement.

    13.2 Your Indemnification of Us. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that Your Intellectual Capital, or your use of our Software Product or Support and Upgrade Service in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law, and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of such a claim, or for any amounts paid by us under a settlement approved by You in writing, of such a claim against us, provided we (a) promptly give you written notice of such a claim against us, (b) give you sole control of the defense and settlement of such a claim against us, except that you may not settle any such claim against us unless it unconditionally releases us of all liability, and (c) give you all reasonable assistance in the defense of such a claim against us, at your expense.

    13.3 Exclusive Remedy. This §13 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this §13.

  14. MUTUAL LIMITATION OF LIABILITY

    14.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 (MUTUAL INDEMNIFICATION), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT, INCLUDING ANY RENEWAL, PREDECESSOR OR SUCCESSOR AGREEMENTS, FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWENTY-FOUR (24) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 9 (FEES AND PAYMENT).

    14.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  15. RENEWALS AND TERMINATION

    15.1 Term of Agreement. This Agreement commences on the date you first accept and receive your Yadle Installer, it and continues for one year.

    15.2 Renewal. The Agreement, unless specified differently in the Agreement, continues for an additional year unless canceled otherwise. Unless specified differently in the Agreement, the Agreement can be canceled 30 days prior to each month. If your payment is late, the Agreement will be renewed retroactively as of the date of expiration and all of its provisions shall be deemed to have been in effect continuously since that time. License renewals per license and service prices will be the same as that of the immediately prior term unless we notify you in writing of a price increase, subject to a 90 (ninety) day notice if this is to occur.

    15.3 Increases and Decreases. The pricing is defined in appendix A of this Agreement. When changes to pricing occurs, the “then current” pricing applies. As applicable, you may purchase additional licenses or services at any time, and the additional costs associated with these purchases will be at based on the then-current price list, pro-rated to the end of your current contract term. Decreases in service or the number of licenses must be made at the end of your current term, and any renewal for a decrease in licenses will be based on the then-current price list without regard to prior per-license pricing.

    15.4 Termination. A party may terminate this Agreement upon 30 (thirty) days written notice to the other party.

    15.5 Refund or Payment upon Termination. If this Agreement is terminated by you in accordance with §15.4 (Termination), payment can stop for future payments. If this Agreement is terminated by us in accordance with §15.4, you will pay any unpaid fees for service up through the termination date.

    15.6 Surviving Provisions. The sections titled "Fees and Payment" "Proprietary Rights and Licenses," "Confidentiality," "Warranties, Exclusive Remedies and Disclaimers," "Mutual Indemnification," "Mutual Limitation of Liability," "Renewals and Termination," "Governing Law and Exclusive Jurisdiction," and "General Provisions" will survive any termination or expiration of this Agreement.

    15.7 Data Removal. After termination, you may request that your data be completely removed from our databases, if applicable. A fee of $100 applies to process your request. If you wish to get a copy of all your data, please contact us to discuss options and pricing.

  16. GOVERNING LAW AND EXCLUSIVE JURISDICTION

    16.1 Manner of Giving Notice. All notices, permissions and approvals given under this Agreement shall be in writing and shall be deemed to have been provided upon: (a) personal delivery, (b) the second business day after first class mailing, or (c) one day after receipt of an email sent to the email address of notice, or (d) one week after international express mailing. All notices to us shall be addressed to sales@Yadle.com. Billing-related notices to you shall be addressed to the relevant billing contact or email address designated by you. All other notices to you shall be addressed to the Support and Upgrade Service system administrator designated by you.

    16.2 Consent to Governing Law and Exclusive Jurisdiction. Each party agrees to the applicable governing law of the following jurisdictions, without regard to choices or conflicts of law rules, and to the exclusive jurisdiction of their courts as follows:

    • The Parties to this Agreement agree to participate, in good faith, in informal and confidential dispute resolution prior to bringing any claim against the other in a court of competent jurisdiction.

    • If you are located in the United States, or anywhere not specifically identified in this subsection 13.2, this Agreement shall be governed by the laws of the State of California, and adjudicated in the state courts located in San Ramon, California, or if required by law, the federal courts of the Northern District of California.

    • If you are located in Europe, including Greenland, in the Middle East or in Africa, this Agreement will be governed by the laws of England, and adjudicated in the courts located in England. The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contract (Rights of Third Parties) Act (UK) 1999 by any person not a party to this Agreement.

    • If you are located in Asia (including Pakistan, Sri Lanka, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan, Turkmenistan and Uzbekistan) or in the Pacific Rim, this Agreement will be governed by the laws of the Republic of Singapore and adjudicated in the courts of the Republic of Singapore. The parties to this Agreement do not intend that any of its terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act (Cap. 53B) (Singapore) by any person not a party to this Agreement.

  17. GENERAL PROVISIONS

    17.1 Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

    17.2 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) Appendix A, and (3) the Documentation.

    17.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent, not to be unreasonably withheld.

    17.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

    17.5 Prevailing Party. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover all costs and reasonable attorney’s fees.

    17.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

    17.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

By downloading Yadle you agree to the terms and conditions of the Yadle service.


Appendix A

Yadle Pricing

The pricing of Yadle is based on the pricing schedule as defined online at: https://www.yadle.com/pricing.html

This represents the then-current price list