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YAM LABS WEB SERVICES AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU, A PERSON OR ENTITY WHO REGISTERS AND PURCHASES YAM WEB SERVICE PREMIUM PLAN (“Paid User”) OR WHO REGISTERS TO USE THE FREE VERSION OF THE YAM WEB SERVICE OR REGISTERS UPON RECEIVING AN INVITATION FROM AN EXISTING USER (“User”) (Users and Paid Users, collectively “Customer(s)”) AND YAM LABS, INC. REGARDING CUSTOMER’S USE OF YAM WEB APPLICATION SERVICE ON THE YAM LABS SITE.

1. DEFINED TERMS

1.1 Agreement means this yaM Labs Web Services Agreement together with any rules and restrictions that apply to the Plan Customer selects as set forth on the Pricing Page.

1.2 Confidential Information means the yaM Web Service and any information disclosed by yaM Labs to Customer, either directly or indirectly in writing, orally, or by inspection of tangible objects relating to the yaM Web Service including without limitation data, text, pictures, audio, video, logos and copy.

1.3 Customer’s Data means any data, information or material submitted by Customer during its use of the yaM Web Service.

1.4 Effective Date means the day the Customer accepts this Agreement.

1.5 Plan means the plan that the Customer selects from the Account Settings Page.

1.7 yaM Web Site means the website located at http://www.yamlabs.com

1.8 yaM Web Service means yaM Labs product that yaM makes available to Customers over the Internet by means of the yaM Web Site.

1.9 Subscription Fees means the fees paid by Paid User to yaM Labs in consideration of Paid User’s use of the yaM Web Service.

1.10 Term means the term of the Plan you select on the Account Settings Page.

2. SERVICES; CUSTOMER PLANS AND ACCOUNTS; CUSTOMER DATA

2.1 Services. yaM Labs shall provide to Customer access to yaM Web Application to be hosted and operated on yaM Labs’ computer servers and any applicable additional services in accordance with the terms of the Plan the Customer selects from the Account Settings Page.

2.2 Changing Plans. Users may upgrade to a for-fee Plan at any time. Paid Users, as Account Owners (as defined below), may upgrade their Plan at any time, upon payment of additional license fees as set forth in yaM Labs’ then-current price list (or as otherwise set forth on the Pricing Page).

2.3 Customer Accounts. When a Customer signs up for the yaM Web Service, yaM Labs will automatically create an account (“Account”) for the Customer. Customers may create multiple Accounts in accordance with the terms of the Customer’s Plan.  Customer is responsible for all activity occurring under its Account. Each Account will be associated with one Plan. yaM Labs reserves the right to modify any of its Plans.  Customer shall notify yaM Labs immediately of any unauthorized use of any password, account, copying or access to the yaM Web Service. Each Customer shall have a unique UserID (email address), which may not be shared.

2.4 Customer’s Data. yaM Labs does not own any of the Customer’s Data. Customer is solely responsible for the accuracy, integrity, and legality of Customer’s Data. Notwithstanding anything to the contrary in this Agreement, yaM Labs shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Customer’s Data. Customer shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver’s license or personal identification numbers or account numbers on, to or from the yaM Web Service. Customer represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Customer’s Data uploaded or submitted to the yaM Web Service and its use of the yaM Web Service and performance of its obligations under this Agreement. Customer will indemnify, defend and hold yaM Labs harmless from any claims, losses and causes of action arising out of or related to Customer’s breach of this Section 2.4.

2.5 User IDs and Security. No User ID may be shared by more than one Customer. The Customer is entirely responsible for maintaining the confidentiality of its User IDs and account information. The Customer acknowledges and agrees that as between the parties, Customer is solely responsible for Customer’s use of the yaM Web Services and all acts, omissions and use of User IDs or passwords or in connection with the yaM Web Services.

3. USER CONDUCT/ACCEPTABLE USE POLICY

Customers may not use the yaM Web Service in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Customers may not use the yaM Web Service to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of yaM Labs or others. Customers are entirely responsible for the content of, and any harm resulting from any of their postings or submissions to the yaM Labs Web Site and yaM Web Service (collectively, “Contributions”). When you create or make available a Contribution, you represent and warrant that you:

  1. will not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the yaM Labs Web Site, computer systems and network, or the yaM Web Service and will not post Contributions that constitute, contain, install or promote spyware, malware or other computer code, whether on yaM Labs’ or others’ computers or equipment, designated to enable you or others to gather information about or monitor the online or other activities of another party;
  2. will not attempt to interfere with any other person's use of the yaM Web Service;
  3. will not misrepresent your identity or impersonate any person or entity, sell or let others use your account, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
  4. will not attempt to gain access to any account, computers or networks related to the yaM Web Service without authorization;
  5. will not attempt to obtain any data through any means from the yaM Web Service, except if we intend to provide or make it available to you;
  6. will not attempt to charge others to use the yaM Web Service either directly or indirectly;
  7. will not use the yaM Web Service to participate in pyramid schemes or to transmit chain letters, or to create an undue burden on the yaM Labs Web Site or the networks or services connected to the yaM Labs Web Site, including, without limitation, hacking into the yaM Labs Web Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
  8. will not use the yaM Web Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited e-mail or communications or unsolicited commercial e-mail or other communications or engaging in unauthorized faming of, or linking to, the yaM Labs Web Site without the express written consent of yaM Labs;
  9. will not post Contributions that (i) are defamatory, damaging, disruptive, unlawful, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable or incite, encourage or threaten immediate physical harm against another, including but not limited to Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual, or (ii) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
  10. will not use the yaM Web Service to send or otherwise make available, any Contribution unless you own or have sufficient rights to such Contribution or have received all necessary consents to post such Contribution;
  11. will not post Contributions that violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of yaM Labs or any other person;
  12. have fully complied with any third-party licenses relating to Contributions, agree to pay for all royalties, fees and any other monies owning any person by reason of Contributions that you posted to or through the yaM Labs Web Site;
  13. will not use the yaM Web Service to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property;
  14. will not use the yaM Web Service to download any material sent by another user of the yaM Web Service that you know, or reasonably should know, cannot be legally distributed in such manner;
  15. will not use the yaM Web Service to violate any code of conduct or other guidelines which may be applicable to the yaM Web Service or the yaM Labs Web Site; or
  16. will not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by yaM Labs in connection with the yaM Labs Web Site, yaM Web Service.

4. GRANT OF LICENSE TO YAM LABS

As between you and yaM Labs, you exclusively own all rights in and to the Contributions that you submit to the yaM Labs Web Site. yaM Labs needs a limited license from you so that we can use your Contributions to make the yaM Web Services and yaM Labs Web Site available to you. For example, if you upload product specifications, product drawings or a animated graphic presentation of how a product works to the yaM Labs Web Site, we need a license from you to display, perform and distribute these Contributions in order to make these Contributions available to you on your meeting pages. And, if you permit third parties (such as your customers or consultants) to view your meeting pages, we need to have a license to sub-license your Contributions to these third parties so that they can view and use your group pages.

By making a Contribution to the yaM Labs Web Site, you grant to yaM Labs a limited, perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to yaM Labs), fully-paid, royalty-free (meaning that yaM Labs is not required to pay you to use your Contribution), sub-licensable (subject to the restrictions below), transferable (solely because we need the right to transfer this license to a successor yaM Labs Web Site operator) and worldwide (because the Internet and the yaM Labs Web Site are global in reach) license to use, modify, perform, display, reproduce and distribute the Contribution for the sole purpose of operating the yaM Labs Web Site and yaM Web Services. yaM Labs needs the right to “modify” and “reproduce” your Content, because the software and servers hosting the yaM Labs Web Site modify and reproduce your Content automatically in order to make the yaM Labs Web Site and yaM Web Service available.

We will only sublicense your Contribution for the following purposes: (a) to make your Contributions available to any third party (such as a client or a contractor) that you permit to view your meeting pages on the yaM Labs Web Site; and (b) to permit a third party hosted services provider to host the yaM Labs Web Site.

5. RESTRICTIONS

Customer shall not: (a) rent, lease or loan the yaM Web Service; (b) conduct automated functionality tests or load tests on the yaM Web Service; (c) attempt to gain access to data that is not Customer’s Data, or use a disproportionate amount of the yaM Web Service that interrupts or degrades the yaM Web Service; or (d) use the yaM Web Service in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.

6. MAINTENANCE AND SUPPORT

yaM Labs will provide maintenance and support services in accordance with the terms of the Plan selected by Customer. yaM Labs’ obligations, if any, to provide maintenance and support is subject to the following: (a) Customer shall provide yaM Labs with access to his/her data to duplicate and resolve errors; (b) Customer shall provide supervision, control and management of the use of the yaM Web Service; (c) Customer shall document and promptly report all errors or malfunctions in the yaM Web Services to yaM Labs, and (d) Customer shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from yaM Labs.

7. FREE ACCOUNT; SUBSCRIPTION FEES AND PAYMENT

7.1 Free Account. When an Account is first created, an Account is automatically placed on free Plan. On the free Plan, a limited number of Meetings may be created within the Account, and some other functionality restrictions are applied. However, a functionality set is provided that is sufficient to evaluate the quality of yaM Web Service. A credit card is not required for the Evaluation Trial. If the Account exceeds the limits associated with the free Plan, the Account will be suspended, and all Meetings in the Account will become read-only until the Account is either (a) brought below the free Plan limits or (b) User purchases a paid Plan for which such Account qualifies.

7.2 Subscription Fees. The amount of the Subscription Fees, if any, are determined by the Plan selected on the Account Settings Page. Subscription Fees for the new Plan will be calculated on a pro-rated basis for the remainder of the Term. In the event of cancellation or termination of this Agreement, no refunds will be made. User is responsible for all taxes, other than taxes levied on yaM Labs’ income. Subscription Fees do not include any applicable taxes. If yaM Labs is required to pay any sales, use, goods and services, value added, or other taxes in relation to Paid User’s purchase, those taxes will be billed to and paid by Paid User.

7.3 Payment. Paid Users shall select either annual or monthly billing for the applicable Subscription Fees. Paid User shall pay the Subscription Fees to yaM Labs on the date Paid User first upgrades to a paid Plan (the “First Upgrade Date”) and on every monthly anniversary thereof (if Paid User has selected monthly billing) during the term of the Agreement and on every yearly anniversary of the Effective Date (if Paid User has selected annual billing) during the term of the Agreement. All Subscription Fees will be automatically billed to Paid User’s credit card. Paid User may upgrade to another paid Plan at any point during the then-current term of the Agreement, and Paid User will be immediately charged, on a prorated basis, for the remainder of the then-current billing cycle. If either party terminates the Agreement before the end of the then-current term, yaM Labs shall not refund any fees to Paid User.

8. TERM, TERMINATION AND SURVIVAL

8.1 Term. This Agreement shall begin on the Effective Date and continue for the Term subject to earlier termination by either yaM Labs or Customer in accordance with this Agreement. Thereafter, the Agreement will automatically renew for successive one-year terms unless and until either party provides written notice to the other party, at least 30 days prior to the expiration of the then current term of its intention not to renew the Agreement or unless earlier terminated by either party in accordance with this Agreement.

8.2 Termination. Either party may immediately terminate this Agreement as follows: (a) if either party materially breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days after it has been notified in writing of such breach; or (b) if either party has instituted against it any proceedings seeking relief, reorganization or arrangement under any laws relating to insolvency and such proceeding is not resolved within sixty (60) days.

8.3 Survival. The provisions of Sections 1, 2.4, 2.5, 3-5, 7.2, 7.3 and 8-18 shall survive the cancellation or termination of this Agreement. All other provisions of this Agreement, which by their terms or import are intended to survive such cancellation or termination, shall survive.

9. NO LICENSE; INTELLECTUAL PROPERTY OWNERSHIP

yaM Labs hereby reserves all right, title and interest in and to the yaM Web Service and all intellectual property rights related thereto not expressly granted in this Agreement. Customer shall not reverse engineer or otherwise attempt to derive source code from the yaM Web Services.

10. CONFIDENTIALITY

10.1 Definition. “Confidential Information” shall mean all non-public information, whether in oral, written or other tangible form that either party (“Discloser”) discloses to the other party (“Recipient”) as being confidential, including without limitation the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public other than (i) as a result of a disclosure by Recipient or its employees or any other person who directly or indirectly receives such information from Discloser or its employees or (ii) in violation of a confidentiality obligation to Discloser that is known to Recipient, (b) is or becomes available to Recipient on a non confidential basis from a source which is entitled to disclose it to the Recipient, (c) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser, or (d) is disclosed pursuant to an order of a court or other governmental body; provided that Recipient shall provide prompt notice thereof to Discloser so as to afford Discloser an opportunity to intervene and prevent or limit any such disclosure.

10.2 Non-Disclosure and Non-Use Obligation. Recipient shall not make use of (except for purposes of this Agreement), or disseminate or in any way disclose Discloser’s Confidential Information. Recipient shall treat Discloser’s Confidential Information with the same degree (but not less than a reasonable degree) of care as it accords its own confidential information. Recipient may disclose Confidential Information only to its employees who need to know such information and certifies that its employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information and will use all commercially reasonable efforts to assist Discloser in remedying any such unauthorized use or disclosure.

11. DISCLAIMER OF WARRANTY

CUSTOMER AGREES THAT CUSTOMER’S ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE YAM WEB SERVICE IS AT CUSTOMER’S SOLE RISK. THE YAM WEB SERVICE IS PROVIDED "AS IS" AND “AS AVAILABLE”, AND YAM LABS AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. CUSTOMER ACKNOWLEDGES THAT THE OPERATION OF THE YAM WEB SERVICE MAY NOT BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. THE YAM WEB SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND YAM LABS SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.

12. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YAM LABS AND ITS CONTRACTORS OR LICENSORS, WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE YAM WEB SERVICE, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF CUSTOMER’S CLAIMS AGAINST YAM LABS AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE VALUE PAID FOR USE OF THE YAM WEB SERVICE DURING THE 12-MONTH PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO SUCH CUSTOMERS.

13. INDEMNIFICATION BY CUSTOMER

Customer will defend or settle, at Customer’s expense, any action brought against yaM Labs based upon the claim that any modifications Customer makes to the yaM Web Service or any combination of the yaM Web Site with yaM Web Service or other items not approved by yaM Labs infringes or violates any third party intellectual property right.

14. GOVERNMENT REGULATIONS

Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

15. GOVERNING LAW

This Agreement shall be governed by and construed under the laws of the State of Delaware, without regard to that state’s conflict of laws principles. Each party accepts unconditionally the jurisdiction and venue of the state and federal courts located in Delaware. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

16. INJUNCTIVE RELIEF

Customer understands and agrees that its breach of this Agreement will cause yaM Labs irreparable damage for which recovery of money damages would be inadequate, and that yaM Labs shall therefore be entitled to obtain timely injunctive relief to protect yaM Labs’ rights under this Agreement in addition to any and all remedies available at law.

17. MISCELLANEOUS

This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Customer may not assign this Agreement (by operation of law or otherwise) without the prior written consent of yaM Labs and any prohibited assignment will be null and void. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.