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Licence Agreement in respect of YellowDog Software

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Licence Agreement in respect of YellowDog Software

This YellowDog Licence Agreement (“Licence Agreement”) is a legal agreement between You (either an individual or an entity) and YellowDog Limited, a private company limited by shares incorporated and registered in England and Wales with company number 09381071 whose registered office is at

Engine Shed
Station Approach
Bristol
BS1 6QH

1. Definitions

1.1. In this Licence Agreement the following terms shall have the meanings set out opposite them:

Cloud Service Provider:

Companies that establish public clouds, manage private clouds, or offer cloud services such as Infrastructure-as-a-Service (IaaS), Platform-as-a-Service (PaaS), and Software-as-a-Service (SaaS).

Confidential Information:

Means all materials, data and other documents (including the YellowDog Software and Documentation) which are disclosed from time to time by one party to the other in fulfilling the provisions and intent of this Licence Agreement and the Contract for Access.

Contract for Access:

Means the Contract for Access to YellowDog Software signed or to be signed by you which sets out Your details, the Licence Period, Fees and certain other matters and which incorporates the documents referred to therein.

Contract Year:

Means each twelve (12) month period following the execution or an anniversary of the execution of the Contract for Access

Documentation:

Means the electronic or online documentation describing the functionality and use of the YellowDog Software which may comprise operating manuals, user instructions, technical literature or other related materials.

Fees:

Means the fees due to YellowDog in consideration of the licence granted to access and use the YellowDog Software and the Documentation as set out in the Contract for Access.

Insolvency Event:

(a) an order is made by a court of competent jurisdiction or a resolution is passed for Your administration (other than for the purpose of a bona fide amalgamation, merger or reconstruction); or

(b) the presentation of a petition for Your winding up, which petition is not dismissed within twenty eight (28) days; or

(c) the appointment of a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of Your assets or business.

Instance:

A computing resource managed by the end user, either used under licence directly from Cloud Service Providers or through YellowDog or owned by the customer.

Intellectual Property Rights:

Means patents, trade marks, rights in goodwill, copyright, database rights and rights in designs (whether registered or unregistered).

Law:

Any applicable law including the common law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code (to the extent binding), rule of court or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body.

Licence Period:

Means the period during which you are licensed to access and use the YellowDog Software as set out in the Contract for Access.

Qualified Use:

means:

(a) to the extent you are copying or making available all or part of the YellowDog Software; and (b) such copying or making available is licensed pursuant to this Licence Agreement and the Contract for Access.

YellowDog Agent:

The computer software that is located on and launched on Cloud Service Provider Instances or Your Instances to create, manage and destroy working processor threads on the Instances for the purposes of workload execution requests communicated to the Instance by the YellowDog Platform.

YellowDog Platform:

The computer software that may be used to launch, stop, restart and terminate Cloud Service Provider and/or Your Instances, to submit workloads to the Instances and to transfer data to and from Instances or data storage systems.

YelllowDog Software:

Means the YellowDog Agent and the YellowDog Platform and any other software as may be made available to You from time to time by YellowDog during the Licence Period.

You or Your:

Means the entity named in the Contract for Access.

2. Licensed Use

2.1. In consideration of your payment of the Fees and Your compliance with the terms of this Licence Agreement, YellowDog grants You a non-exclusive, non-transferable licence to:

(a) access and use the YellowDog Platform and, only to the extent specified in the Contract for Access, copy and make available to your internal business users the YellowDog Platform on your infrastructure or that of a Cloud Service Provider;

(b) copy the YellowDog Agent for the limited purposes of accessing and using the YellowDog Platform, in each case during the Licence Period, according to the terms and conditions of this Licence Agreement and for the purposes set out in this Licence Agreement and/or the Contract for Access but not further or otherwise.

2.2. You must not, and must not allow anyone else to copy access or use the YellowDog Software or any of its processing nodes by uploading malicious software, nor reverse engineer, decompile (in each case save to the extent permitted by Law), copy, adapt, disassemble or create derivative works based on the YellowDog Software.

2.3. You must use the YellowDog Software for processing Your own data and for Your own internal business purposes only. You must not use or attempt to use the YellowDog Software (or permit any third party to):

(a) to provide a data processing service to any third party by way of trade or otherwise; or

(b) contrary to any other restrictions stated in this Agreement.

2.4. You agree that:

(a) You are solely responsible for any content and data that You and Your users use in connection with Your (and their) access and use of YellowDog Software;

(b) You must comply with and ensure that all Your users comply with any reasonable instructions provided by YellowDog from time to time in connection with the use of the YellowDog Software and access and use of their account;

(c) You shall not make or permit any modifications to the YellowDog Software without YellowDog’s prior written consent;

(d) You shall be responsible for any access and use of the YellowDog Software by users, all charges incurred (including those relating to any Cloud Service Provider) and compliance with all terms and conditions by Your users; and

(e) effect and maintain adequate security measures to safeguard Your account details and any passwords/Multifactor Authentication tokens to access the same.

3. Restrictions on Use

3.1. You shall not copy the YellowDog Software (except pursuant to the licence set out above) nor attempt to clone the YellowDog Platform without YellowDog’s prior written consent.

3.2. You shall not acquire any right, title, copyright or other proprietary rights in the YellowDog Software or in any Documentation.

3.3. You acknowledge that the YellowDog Platform is a multi-tenanted environment and that Your actions may impact other users. Accordingly You must not, by Your act or omission, deliberately or negligently cause the performance of the YellowDog Platform to be adversely affected or to cause loss or damage to other users of the YellowDog Platform.

4. Payment

4.1. Payment for use of the YellowDog Software shall be annually upfront unless agreed otherwise by YellowDog in writing. Unless YellowDog agrees otherwise in writing, no use or access to the YellowDog Software may take place until payment has been received in cleared funds. An electronic invoice shall be generated and emailed to Your registered email address. Payment of invoices shall be made within thirty days of the date of invoice.

4.2. All amounts stated are exclusive of VAT and/ or any other applicable taxes or levy which shall be charged in addition at the rate in force at the date any payment is due.

4.3. If any sums payable to YellowDog under this Licence Agreement or the Contract for Access are in arrears for more than thirty days after the due date, YellowDog reserves the right, without prejudice to any other right or remedy, to:-

(a) charge interest on a day to day basis from the original due date at a rate 8% over the Bank of England base rate in force from time to time; and/or

(b) suspend Your access to the YellowDog Software without notice.

4.4. You must notify YellowDog within thirty (30) days if You consider an invoice incorrect or invalid for any reason, failing which You must raise no objection to any such invoice and shall make full payment in accordance with it.

4.5. Unless agreed otherwise in writing with You, YellowDog may increase any Fees due to us under this Licence Agreement or Contract for Access on 1st January of each year by the percentage increase in the Consumer Prices Index (as published from time to time by the Office For National Statistics) over the previous twelve months.

5. Protection of Confidential Information

5.1. Each Party (the “Receiving Party” ) shall keep the Confidential Information of the other Party (the “Supplying Party”) confidential and secret, whether disclosed to or received by the Receiving Party. You acknowledge that the YellowDog Software contains Confidential Information of YellowDog and/or of third parties. You undertake to keep confidential all information contained in or otherwise received from YellowDog in connection with the YellowDog Software including any user access codes in respect of your account and shall not divulge the same to any third parties without the prior written consent of YellowDog.

5.2. The obligations of clause 5.1 shall not apply to any information which:

(a) was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;

(b) is, or becomes, publicly available through no fault of Yours;

(c) is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

(d) was developed by the Receiving Party who had no direct access to, or use or knowledge of, the confidential information supplied by YellowDog; or

(e) is required to be disclosed by order of a court of competent jurisdiction.

5.3. You may divulge the Confidential Information only to those employees, agents or subcontractors bound under equivalent conditions of confidence who are directly involved in your lawful use of the YellowDog Software and You must ensure that prior to disclosure of any Confidential Information that such persons are aware of and undertake to comply with these obligations of confidentiality. You must fully indemnify YellowDog against any loss or damage in consequence directly or indirectly of any non-compliance with this clause by the Your employees, agents or subcontractors.

6. Data Protection

6.1. You acknowledge that, save for any user names or names associated with jobs (“Incidental Personal Data or Incidental PD”), YellowDog will not have any access to any personal data of Yours during the currency of this Agreement. In respect of Incidental PD, we shall act as controller and process such data in accordance with our privacy policy which can be found on our website.

6.2. You must not share personal data with YellowDog without YellowDog’s prior agreement in writing. If at any time in connection with your access to the YellowDog software, YellowDog is required to process personal data in respect of which You or a third party is a controller, the parties will first review the necessity for such processing, including whether Your use of the YellowDog Software can be performed with anonymised data, or without access to personal data.

6.3. If the parties agree that YellowDog must receive personal data, You must first agree in writing with YellowDog:

(a) the nature of the relevant personal data;

(b) the technical and organisational measures that YellowDog needs to have in place to safeguard the personal data against any unauthorised or unlawful processing of such personal data and against accidental loss, destruction or damage to such personal data;

(c) the precise nature, purpose and scope of the processing of such personal data, to include but not be limited to,

(i) the nature of the data in scope, to include identifying only data that is necessary to transfer to YellowDog, and which You are permitted by law to transfer to YellowDog; (ii) the means of the data being transmitted by You to YellowDog; (iii) the type of processing that YellowDog is required to undertake; (iv) the period for which YellowDog shall retain the personal data; (v) applicable terms to cover the transfer of personal data outside the UK; and (vi) the method of returning or destroying the personal data that YellowDog shall adopt once it is no longer required for YellowDog to retain the same; and

(d) any variation to the fees as a result of the above. Where the parties are unable to agree any of the above, then You must not provide any personal data to YellowDog.

6.4 If YellowDog agrees to process any personal data following the above assessment, then YellowDog agrees to comply with the requirements of Article 28(a) to (h) GDPR as if the same were incorporated into this Agreement.

6.5. Anonymous usage information of the YellowDog Software may be used to improve our service offering to you and other YellowDog Software users.

6.6. Anonymous usage information may be shared with approved third parties by YellowDog for the purposes of royalty payments, operations and maintenance of the YellowDog Software.

7. Data Retention

7.1. Any data uploaded to and usage and audit data generated by the YellowDog Software will be stored in secure YellowDog encrypted storage where applicable. This data will be permanently deleted twelve (12) months after the uploading, use or creation of that data, which ever event occurs last. You warrant and undertake that you shall not upload any data that infringes the legal or equitable rights of any third party and undertake to fully indemnify us against any loss or liability YellowDog may suffer or incur as a result of any breach of this clause.

8. YellowDog Platform Credential Security

8.1. Should employees or contractors leave your organisation, or no longer require access to YellowDog Software to perform their role, You must immediately disable access or change the password for their YellowDog Software user account/s to prevent any deliberate or accidental misuse. You acknowledge that You remain solely responsible for all use of Your YellowDog Software user account/s.

9. Warranties

9.1. YellowDog warrants that the YellowDog Software will perform substantially as set out in the Documentation and, to the extent within YellowDog’s control, it will provide access to the YellowDog Software with reasonable skill and care.

9.2. YELLOWDOG DOES NOT WARRANT THAT OPERATION OF THE YELLOWDOG SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

9.3. SUBJECT TO 9.1, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE YELLOWDOG SOFTWARE IS PROVIDED ‘AS IS’ WITH ALL FAULTS. YELLOWDOG DOES NOT WARRANT NOR GIVE ANY REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS.

9.4. If You notify YellowDog in writing of a breach of the warranty set out in clause 9.1, then YellowDog will in its absolute discretion (and as Your exclusive remedy for a breach of the warranty set out in clause 9.1):

(i) use its reasonable endeavours to investigate the apparent problem or defect and in the event a problem or defect is identified to rectify any non-conformance with the warranty by repair (by way of a patch, work around, correction or otherwise); and/or (ii) terminate this Licence Agreement and/or Contract for Access and provide a refund of any Fee paid for the relevant Contract Year in which the breach of warranty occurs if, in YellowDog’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost. You must provide YellowDog with all reasonable assistance in order for YellowDog to carry out its investigation.

9.5. The entire risk as to the quality of any output arising out of access to or use of the YellowDog Software remains with You. Further, you acknowledge that the YellowDog Software enables You to access the maximum computing resources available to You under Your agreement with your Cloud Service Provider. You remain solely liable for the costs (and any other consequences) associated with access to third party computing resources.

9.6. You must only use the YellowDog Software in full compliance with the Law including ensuring that it is not used for any unauthorised access or denial of service attacks which is or would be an offence under Section 1, 2, or 3 of the Computer Misuse Act 1990.

9.7. You accept that You shall be responsible at all times for maintaining an appropriate data backup procedure to enable the recovery of lost or corrupted data files. You accept that You bear full responsibility for the loss or corruption of data.

10. Liability Generally

10.1. Neither party excludes its liability for death or personal injury caused by its negligence or for fraud.

10.2. You agree that YellowDog shall not be liable for any:

(a) indirect or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused, whether arising under contract, tort (including negligence) or otherwise;

(b) loss of production;

(c) loss of or corruption to data;

(d) loss of profits or of contracts;

(e) loss of operation time; and

(f) loss of goodwill or anticipated savings.

10.3. YellowDog’s total liability in each Contract Year (whether in contract, tort, including negligence, or otherwise) under or in connection with this Licence Agreement and the Contract for Access and any other agreement with You relating to the YellowDog Software shall not exceed the greater of 120% of Fees paid in the previous Contract Year or the sum of £10,000 in aggregate.

10.4. In circumstances where You have a claim or claims pursuant to the indemnity set out in clause 11.3, YellowDog’s maximum liability to You in respect of all claims brought pursuant to the indemnity set out in clause 11.3 and any additional claims to which clause 10.3 apply shall not exceed £2 million pounds in aggregate.

10.5. You agree that except as expressly provided in clause 9, clause 11.3 and this clause 10 YellowDog shall not be under any liability of any kind whatsoever and howsoever caused arising directly or indirectly in connection with this Licence Agreement. You must fully indemnify YellowDog in respect of any breach of clause 3.3 or any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from Your access, operation or use of the YellowDog Software and Documentation except and in so far as YellowDog is liable as expressly provided in this Licence Agreement.

10.6. You acknowledge and agree that the allocation of risk contained in this clause 10 is reflected in the Fee and is also a recognition of the fact that the YellowDog Software cannot be tested in every possible combination and it is not within YellowDog’s control how and for what purpose the YellowDog Software are used by You.

11. Intellectual Property

11.1. Neither party is granted any right, title or licence to, or interest in the other party’s Intellectual Property Rights.

11.2. If at any time a party acquires any rights in the other party’s Intellectual Property Rights by operation of law or otherwise it will immediately upon request by the other party and at no expense to the other party assign such rights, registrations or applications to the other party, along with any associated goodwill.

11.3. Subject to the cap set out in clause 10.4, and to the extent your use of the YellowDog Software constitutes Qualified Use, YellowDog will indemnify You against any liability to a third party arising out of the normal use of the YellowDog Software infringing the third party’s copyright provided that:

(a) You tell YellowDog about any claim as soon as possible;

(b) You give YellowDog immediate and complete control of, and at YellowDog’s cost all reasonable help in connection with, defending the claim and all negotiations for settling it;

(c) You do not prejudice the defence of the claim; and

(d) The claim does not arise as a result of Your breach of Your obligations under this Licence Agreement.

11.4. YellowDog are entitled to replace or change the YellowDog Software or any part of it (without diminishing its overall functionality) to avoid any infringement.

11.5. Clause 11.3 and 10.4 sets out our entire liability and Your exclusive remedy for the YellowDog Software infringing the Intellectual Property Rights of any person or organisation.

12. General

12.1. Neither Party shall have any liability under or be deemed to be in breach of this Licence Agreement for any delays or failures in performance of this Licence Agreement that result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.

12.2. This Licence Agreement is personal to You and You may not assign or otherwise transfer Your rights or obligations under this Licence Agreement without the prior written consent of YellowDog.

12.3. If any part of this Licence Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of this Licence Agreement which shall continue to be valid and enforceable to the fullest extent permitted by Law.

12.4. No delay or failure by either party to exercise any of its powers, rights or remedies under this Licence Agreement shall operate as a waiver of them, nor shall any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing.

12.5. The Contract for Access is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Contract for Access and supersedes (and renders null and void) all previous communications, representations (and misrepresentations) and arrangements, either written or oral. You acknowledge that no reliance is placed on any representation or misrepresentation made but not embodied in the Contract for Access.

12.6. The printed terms and conditions of any purchase order or other correspondence and documents issued by You in connection with this Licence Agreement shall not apply unless expressly accepted in writing by YellowDog.

12.7. Nothing in this Licence Agreement shall confer on any third party any right enforceable under the Contracts (Rights of Third Parties) Act or under trust or any agency arrangement.

13. Suspension

13.1. YellowDog may, at its discretion:

(a) suspend and/or ban access to the YellowDog Software, either in whole or in part:

(i) in an event of emergency and/or to safeguard the integrity and security of the YellowDog Software and/or maintain, repair or enhance the performance of the YellowDog Software; (ii) where it is required to do so by Law (including where directed to do so by a regulatory authority); (iii) to comply with an order, instruction or request of government, an emergency services organisation, or other competent administration; (iv) for any breach or suspected breach of this Licence Agreement; (v) where it is required to do so by one of its third party service providers; (vi) where You are the subject of an Insolvency Event or fail to pay any Fees when they become due; or

(b) for operational reasons change or adapt the YellowDog Software provided that any such change does not materially decrease or impair performance of the platform; and

(c) change the YellowDog Software such that it complies with Law.

13.2. Except in the case of Your breach or suspected breach of this Licence Agreement or an Insolvency Event affecting You (in which case YellowDog may suspend your access immediately), YellowDog will, to the extent it is reasonably able to do so, in each case described in this clause 13, give You reasonable notice of the change and/or suspension occurring.

13.3. Where the YellowDog Software is changed or suspended under clause 13.1, YellowDog shall not be liable to You for such change or suspension.

14. Term, Termination and Amendments

14.1. This Licence Agreement commences on the first day you click “Accept”, install or otherwise use the YellowDog Software.

14.2. You may terminate this Licence Agreement at any time by sending YellowDog thirty (30) days’ written notice to

YellowDog
1 Victoria Street
Bristol
BS1 6AA

or an email to support@yellowdog.co provided that all outstanding fees are paid in full and you no longer use or access the YellowDog Software.

14.3. YellowDog may terminate this Licence Agreement at any time by sending you a written notice at least thirty (30) days prior to the termination date.

14.4. If You:

(a) fail to comply with any of the provisions of this Licence Agreement and do not rectify such non-compliance within fifteen (15) working days of YellowDog’s written notice thereof; or

(b) suffer an Insolvency Event, then (and in any such case) YellowDog may, without prejudice to any other of its rights or remedies and without being liable to You for any loss or damage which may be occasioned, give written notice to You terminating this Licence Agreement (and accordingly Your use of the YellowDog Software) with immediate effect.

14.5. On termination of this Licence Agreement, howsoever caused, Your authorisation to use the YellowDog Software and Documentation shall automatically cease and You undertake immediately to:

(a) cease to use the YellowDog Software and all Documentation;

(b) uninstall and then delete any installer files or plug-ins related to the YellowDog Software and Documentation; and

(c) delete all user account and password details in Your control or possession.

14.6. Within seven (7) days of the date of termination, You must return to YellowDog or confirm the destruction of all copies of the Documentation.

14.7. This Licence Agreement may be amended online by YellowDog giving You thirty (30) days’ notice by emailing You at the email address You have supplied to YellowDog for this purpose. If you do not agree to be bound by such amendments You may, within 14 days from the date You receive the email from YellowDog, respond in writing to YellowDog saying that, without prejudice to any other rights or remedies You may have, that You terminate this Agreement within 14 days from the date of your response.

14.8. After two years of inactivity, your account and all associated data shall be automatically deleted.

15. Law & jurisdiction

15.1. The validity, construction and performance of this Agreement shall be governed by the Laws of England and Wales and shall be subject to the exclusive jurisdiction of the English and Welsh courts to which the Parties submit.

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