READ THE TERMS AND CONDITIONS OF THIS TERMS OF USE AGREEMENT CAREFULLY BEFORE INSTALLING THIS PRODUCT. BY CLICKING THE “ACCEPT” BUTTON, YOU (EITHER INDIVIDUALLY OR ON BEHALF OF THE ENTITY OR COMPANY THAT YOU REPRESENT) ARE ACCEPTING AND AGREEING TO BE UNCONDITIONALLY BOUND BY THE TERMS OF THIS TERMS OF USE AGREEMENT. YOUR CONTINUED USE OF THE PRODUCT SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON AND DISCONNECT THE PRODUCT.
TERMS OF USE AGREEMENT
1. GRANT OF LICENSE.
Subject to the payment of the applicable fees and all the terms and conditions of this Terms of Use Agreement (“Agreement”), Yoggie Security Systems Ltd. (“Yoggie”) grants to you a limited, personal, nonexclusive, nontransferable, non-sublicensable license to use the Yoggie device that accompanies this Agreement (“Device”), including all software bundled therein, in binary executable form only (the “Software”; and together with the Device the “Product”), only for your internal use, and only in accordance with the terms of the purchase order, purchase agreement or invoice (“Purchase Agreement”) and any documentation that accompanies the Product (“Documentation”), and only during the applicable subscription period as set forth in the Purchase Agreement (“Subscription Period”). You may extend the Subscription Period by purchasing additional continuous one-year subscriptions at prices then in effect either directly from Yoggie or from one of its authorized distributors or resellers.
2. PERMITTED USES.
The Product should be installed in accordance with the instructions of Yoggie as provided in the Documentation. If the Product is Yoggie Gatekeeper™ Pro, it may be installed and used on a single PC and if the Product is Yoggie Gatekeeper™ SOHO it may be installed and used within a multi-user or networked environment of up to five (5) users (regardless if the use is concurrent or not). 3. OWNERSHIP; COPYRIGHT PROTECTION.
You have purchased the Device, which belongs to you upon payment of the hardware fees. The Software is licensed, not sold. As between the parties, all title, ownership rights, and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Software and all intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Device shall remain in Yoggie, or its respective suppliers and licensors. Your possession, installation, or use of the Product does not transfer to you any title to the intellectual property in the Software or Device, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. The Device and the Software are protected, inter alia, by United States and Israeli copyright laws, registered or pending patents, international treaty provisions and all other applicable laws. This Agreement does not give you any rights not expressly granted herein. You may not copy the Product manual(s), on-line documentation, or any written materials accompanying the Product. All title and intellectual property rights in and to the content, which may be accessed through use of the Product, are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content.
4. SUPPORT, UPGRADES AND UPDATES.
During the Subscription Period, you shall be entitled to technical assistance via email directly from Yoggie (or from a third party designated by Yoggie) at support@yoggie.com, under such terms as Yoggie generally makes available to its customers and provided you are in compliance with the terms of this Agreement. During the Subscription Period and provided you have complied with the terms of this Agreement, you shall be entitled to updates and upgrades of the Software, as Yoggie in its discretion generally makes available to its customers; such updates and upgrades of the Software are available automatically, provided the Product is connected at all times to the web. You understand that if Yoggie announces the end-of-life of the version level of the Product you have acquired, then as of the end-of-life date, you shall no longer be entitled to support, unless you choose to upgrade to a currently supported version of the Product at prices and terms then available from Yoggie or an authorized reseller.
5. RESTRICTIONS.
Except as expressly and unambiguously permitted by this Agreement, you may not, nor permit anyone else to, directly or indirectly: (a) use the Software or Device, or any component thereof, except as part of the bundled Product and in accordance with this Agreement; (b) rent, lease, sublicense, or use the Product for timesharing or service bureau purposes, or otherwise use the Product for any commercial purpose or on behalf of any third party; (c) transfer, assign, or pledge your rights under this Agreement, without obtaining the prior written consent of Yoggie; (d) dismantle, decompose or modify the Product, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is required by applicable local law, and then only to the extent so permitted); (e) copy, modify or distribute copies of the Software to third parties; (f) integrate, incorporate, include or bundle the Product or any part thereof, into or with any other software or hardware without receiving the prior written consent of Yoggie; (g) use the Product for performing comparisons or other “benchmarking” activities, either alone or in connection with any software or hardware (and you agree not to publish any such performance information or comparisons); or (h) publish reviews of the Product without the prior written consent of Yoggie. You acknowledge that the source code form of the Software remains a confidential trade secret of Yoggie and/or its suppliers or licensors. You must maintain all copyright and any other proprietary notices on the Product.
6. TERM AND TERMINATION.
This Agreement shall automatically terminate upon the expiration of the Subscription Period (as extended pursuant to this Agreement) unless earlier terminated as set forth in this section. You may terminate this Agreement at any time by disconnecting the Product and destroying all copies of the Documentation. Yoggie may terminate this Agreement immediately if you violate any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. YOU ACKNOWLEDGE THAT THE LICENSE GRANTED IS A SUBSCRIPTION LICENSE WITH A SUBSCRIPTION PERIOD AND YOU FURTHER ACKNOWLEDGE THAT UPON THE EXPIRATION OF THE SUBSCRIPTION PERIOD (AS EXTENDED, IF APPLICABLE), YOU WILL NOT RECEIVE SOFTWARE UPDATES FOR THE PRODUCT AND CERTAIN COMPONENTS OF THE PRODUCT WILL NOT BE UPDATED AND ARE NOT CURRENT, AND THEREFORE MAY NOT PROVIDE SAME LEVEL OF PROTECTION AS PROVIDED BY AN UPDATED AND SUPPORTED VERSION OF THE PRODUCT, EVEN THOUGH THE PRODUCT MAY, UNDER CERTAIN CIRCUMSTANCES, APPEAR TO BE WORKING. Sections 3 and 6 through 15, and all accrued rights to payment, shall survive termination of this Agreement.
7. HIGH RISK ACTIVITIES.
You acknowledge that the Product is not fault tolerant and is not designed, manufactured, or intended for use or resale as on-line control equipment in hazardous or high risk environments and activities requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems) in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage, and you agree not to use or allow the use of the Product or any portion thereof for, or in connection with, any such environment or activity.
8. INDEMNITY.
Yoggie shall have no liability whatsoever for any use made of the Product by you or any third party. You hereby agree to defend, indemnify and hold harmless Yoggie from any and all claims, damages, liabilities, costs, and expenses (including attorney’s fees) arising from claims related to your use of the Product as well as from your failure to comply with any terms of this Agreement.
9. LIMITED WARRANTY AND WARRANTY DISCLAIMERS.
Yoggie warrants only that the Software will perform substantially in accordance with the accompanying documentation for a period of one (1) year from the date you received the Product (the “Warranty Period”), provided you are current with your payments. This warranty does not cover hardware failure or malfunction. The entire liability of Yoggie and your exclusive remedy under this standard warranty shall be repair or replacement of the Product that do not meet this limited warranty with a new or refurbished Product, provided that you submit to Yoggie, through your reseller or distributor, if applicable, a request for returned merchandise authorization (“RMA”) within the Warranty Period. If the RMA is provided to Yoggie more than 30 days from the date you received the Product, you shall bear the delivery expenses. Yoggie does not warrant that the Product is error free. This limited warranty is void if failure of the Product has resulted from accident, abuse, or misapplication, or if the Product was installed or stored near any heat or fire sources or in a moist environment.
EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE PRODUCT IS PROVIDED “AS IS”. YOGGIE DOES NOT WARRANT THAT THE PRODUCT IS ERROR-FREE AND DOES NOT WARRANT THAT THE SOFTWARE IDENTIFIES ALL KNOWN VIRUSES, NOR THAT THE SOFTWARE WILL NOT OCCASIONALLY ERRONEOUSLY REPORT A VIRUS IN A TITLE NOT INFECTED BY THAT VIRUS. ADDITIONALLY, YOGGIE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. YOGGIE DOES NOT MAKE AND THIS AGREEMENT DOES NOT PASS TO YOU IN ANY WAY ANY REPRESENTATION, WARRANTY OR UNDERTAKING ON BEHALF OF YOGGIE’S SUPPLIERS OR LICENSORS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, SHALL YOGGIE OR ITS SUPPLIERS, LICENSORS, DISTRIBUTORS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DAMAGE OR DESTRUCTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE, MALFUNCTION, FIRE, ELECTRICAL FAILURE OR SHORT CIRCUIT), OR DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THIS PRODUCT. THE ENTIRE LIABILITY OF YOGGIE (INCLUDING ITS SUPPLIERS, LICENSORS, DISTRIBUTORS OR RESELLERS) SHALL BE LIMITED IN ANY EVENT TO ACTUAL DIRECT DAMAGES CAUSED SOLELY BY THE ACTS OR OMISSIONS OF YOGGIE. FURTHERMORE, THE ENTIRE LIABILITY OF YOGGIE (INCLUDING ITS SUPPLIERS, LICENSORS, DISTRIBUTORS OR RESELLERS) FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOGGIE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
11. EXPORT CONTROLS.
You agree to comply with all export laws and restrictions and regulations of any Israeli, United States, European Union or other government agency or authority, and agree that you will not export, or allow the export or re-export of the Product in violation of any such restrictions, laws or regulations. By installing or using the Product, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
12. MISCELLANEOUS.
This Agreement represents the complete agreement concerning the Product between you and Yoggie and supersedes all prior agreements and representations between you and Yoggie. It may be amended only in writing and must be executed by both you and Yoggie. If any provision of the Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Yoggie to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit the rights of Yoggie with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without the consent of Yoggie and any action or conduct in violation of the foregoing shall be void and without effect. Yoggie expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement is governed by and construed under the laws of the State of Israel. Unless otherwise elected by Yoggie in writing for a particular instance (which Yoggie may do at its option), the sole jurisdiction and venue for actions related to the subject matter hereof shall be the courts of Tel Aviv–Jaffa, Israel. You hereby agree to service of process in accordance with the rules of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees.