Introduction and Definitions.
As used in this Agreement, the following capitalized terms have the meanings ascribed to them as follows:
“Mobile Application” means a mobile widget, application, or site that operates on the Yahoo! Mobile Platform, developed using the SDK and in compliance with this Agreement.
“Sample Code” means exemplary source code, such as the source code for sample Yahoo! developed widgets included in the SDK, provided by Yahoo! and identified as such by Yahoo! in the SDK.
“SDK” means, collectively, any software code, documentation, instructions, tutorials, testing environments and tools, APIs, files and other materials that Yahoo! or Yahoo!’s partners or affiliates make available to you to enable your development of Mobile Applications, and to access the Service, including but not limited to, Sample Code.
“Service” means, collectively, the SDK and Yahoo! Mobile Platforms, and includes any associated software code, documentation, instructions, tutorials, testing environments and tools, APIs, files, definitions, templates, and other materials Yahoo! makes available to you to use or access the SDK and Yahoo! Mobile Platforms.
“Yahoo! API” means a published application programming interface or other web service owned by Yahoo! and provided by Yahoo! to the general public subject to certain published guidelines on the Yahoo! Developer Network and published terms and conditions on http://info.yahoo.com/legal/us/yahoo/api/api-2140.html.
“Yahoo! Mobile Platform” means any runtime platform or service owned and hosted by Yahoo! for developing and rendering Mobile Applications onto Yahoo! controlled rendering environments and applications, including but not limited to, Yahoo! Go, Yahoo! Mobile sites, and Yahoo! Blueprint Runtime for Mobile Sites.
“Yahoo! Widget Gallery” means Yahoo!’s online gallery featuring Yahoo! developed and third party developed Mobile Applications from which users may access and use such Mobile Applications.
License Grant, Restrictions and Requirements.
2.1 All rights not expressly granted to you in this Agreement are reserved by Yahoo!, its licensors or their respective owners.
Yahoo! grants you the right to access and use the Service (but excluding Sample Code and Yahoo! APIs which are covered below) solely for the purpose of developing, testing, supporting, and distributing Mobile Applications for use by end-users, subject to the limitations and restrictions set forth in this Agreement.
Sample Code. You may copy, modify, share, create derivative works from, and distribute Sample Code identified as such and provided by Yahoo! to you in the SDK, provided that you do not use any images, audio files, or other Content apart from the code and follow these conditions:
Redistributions in source code form must contain the copyright notice "Copyright © Yahoo! Inc. 2009, All Rights Reserved," this list of conditions, and the disclaimer below.
Redistributions in binary form must reproduce the above copyright notice, this list of conditions, and the disclaimer below in the documentation and/or other materials provided with the distribution.
Neither the name of Yahoo! nor the names of its contributors may be used to endorse or promote products derived from Sample Code without specific prior written permission of Yahoo!.
DISCLAIMER TO BE INCLUDED WITH MODIFIED SAMPLE CODE:
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
2.2 You are solely responsible for developing and supporting your Mobile Applications, and for any Content or services that you display, transmit, make available, or distribute via your Mobile Applications. You are also solely responsible for supporting users of your Mobile Applications and for providing and enforcing terms, policies and restrictions applicable to your Mobile Applications with such users. You will provide a legitimate email address or publicly accessible website to which users can submit their questions, complaints, and feedback about your Mobile Applications.
2.3 You may not sell, lease, share, transfer, reverse engineer, derive the source code of, decompile, or sublicense the SDK or Service, or any portions thereof, or any access or access codes thereto.
2.4 While you may communicate generally to the public about your Mobile Applications, you must do so truthfully, and you may not use the Yahoo! trademarks, service marks, or logos in connection with your Mobile Applications, or otherwise give the general public the impression that any of your Mobile Applications are created, endorsed, or sponsored by Yahoo!.
2.5 You may provide technical and other evaluation and feedback to Yahoo! concerning the Service or Yahoo! Widget Gallery (“Feedback”). You shall not provide any Feedback to Yahoo! which consists of proprietary or confidential information for which you do not have the right to share with Yahoo!. Any Feedback you provide to Yahoo! will be subject to the license terms set forth in Section 3 of this Agreement.
2.6 You MAY NOT:
use the Service to promote or distribute time bombs, crash bugs, viruses or other devices or functions that will or may harm, disrupt, or destroy any data, information, material, equipment, network, system or function, or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of distributing spyware, adware, spam, phishing, or other malicious programs or code;
use the Service to promote or distribute counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, tobacco products, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, adult or child pornography, government IDs, police items, unlicensed trade in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons or accessories; and any services or products which are illegal in the jurisdiction in which your Mobile Application is distributed;
use the Service in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of publicity;
use the Service to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake. You understand that the Service is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which Yahoo! is not responsible;
sell, lease, share, transfer, or sublicense the Service, or access or access codes thereto, or derive income from the use or provision thereof, whether for direct commercial or monetary gain or otherwise, without Yahoo!'s prior, express, written permission;
engage in any activity that disrupts or degrades the Service;
in a manner that scrapes or stores a user’s credentials (i.e., passwords and user log-in i.d.) or other personally identifiable information for the purposes of accessing such user’s Yahoo! account(s), or accesses Yahoo!-issued tokens or otherwise authenticates against the Yahoo! user database unless Yahoo! has expressly permitted you to do so in writing; or
in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with this Agreement, or the Service requirements or guidelines, as determined by Yahoo! in its sole discretion.
2.7 You SHALL do the following:
You represent and warrant to Yahoo! that:
(1) you have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute any content in or made available via your Mobile Applications in the manner contemplated under this Agreement, and that use by Yahoo! or others of any such Content and your Mobile Applications via the Service shall not violate the rights of any third party (e.g., copyright, patent, trademark, or other proprietary right of any person or entity), or any applicable regulation or law, including but not limited to any export, re-export, or import laws and the laws of any country in which your Mobile Application is made available;
(2) you are of legal age in the jurisdiction in which you reside (at least 18 years of age in many countries) to enter into a binding contract;
(3) you have the right and authority to enter into this Agreement on your own behalf, or if you are entering into this Agreement on behalf of your company or organization, that you have the right and authority to legally bind your company or organization to the terms and obligations of this Agreement; and
(4) the information that you give Yahoo! about yourself and your company or organization will at all times be current, true, accurate and complete information.
If Yahoo! notifies you that any of your Mobile Applications have infringed upon any third party rights or is not in compliance with relevant laws, you will remove or disable access to such Mobile Applications immediately.
You shall truthfully represent at all times what your Mobile Applications will do for users, and what your Mobile Applications will do with user data.
You will comply with all legal process served upon you or upon Yahoo! by litigants or government agencies seeking the disclosure of information concerning your Mobile Application, including user data collected and/or stored by you or your Mobile Application. You are also solely responsible for all costs associated with processing such requests. In responding to such requests, you shall comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with the disclosure of user data.
Yahoo! reserves the right, in its sole discretion, to access, preserve, or disclose information regarding your Mobile Application, including but not limited to code executed by the Service, user data collected and/or stored by you or your Mobile Application, in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce Yahoo!’s Terms of Service; (iii) respond to claims that any user data, personal data, or usage data violates the rights of third parties; (iv) respond to a user’s request for technical support; or (v) protect the rights, property or personal safety of Yahoo!, its users and the public. If your Mobile Application does not comply with this Agreement, Yahoo! reserves the right to remove, disable access to, or block your Mobile Application from operating on the Service.
2.8 If you are including geo-location support in your Mobile Application, you will ALSO comply with the following:
You will not market or target your Mobile Application to users under the age of 18 years old.
Neither you nor your Mobile Application will provide a third party with access to the user’s geo-location data.
Ownership and Intellectual Property
3.1 Yahoo! and its licensors own all right, title, and interest in and to the Service, which may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Yahoo!'s and its licensors’ rights apply to the Service and all associated output and executables. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Agreement. Yahoo! will have a perpetual, worldwide, irrevocable, sublicensable, and royalty-free license to utilize, modify, and distribute your Feedback, as well as incorporate such Feedback into the Service or versions thereof. However, you agree that Yahoo!’s incorporation of Feedback into such offerings does not grant you any proprietary rights therein. Other than the license grant expressly set forth herein, this Agreement grant you no right, title, or interest in any intellectual property owned or licensed by Yahoo!.
3.2 You own all right, title, and interest in to any Mobile Applications (except for any Sample Code that is integrated into the Mobile Application) that you develop, and any derivative works thereof. As a condition of using the Service, you grant Yahoo! a worldwide, non-exclusive, perpetual, worldwide, sublicensable license to access, distribute, display, copy, and perform the Mobile Applications within the Service, and in marketing and promotional materials related thereof.
4.1 Information Deemed Confidential. You agree that the SDK (including future versions of the SDK), and any other non-public information that you learn about Yahoo!’s products, designs, research, development, know-how, business, finances, or personnel in connection with your use of any part of the Service will be deemed “Yahoo! Confidential Information” under this Agreement.
4.2 Obligations Regarding Confidential Information. You agree to protect Yahoo! Confidential Information using at least the same degree of care that you use to protect your own confidential information of similar importance, but no less than a reasonable degree of care. You may use Yahoo! Confidential Information solely for the purpose of exercising your rights and performing your obligations under this Agreement. You may not use Yahoo! Confidential Information for any other purpose, or for your own or any third party’s benefit, without the express prior written consent of an authorized representative of Yahoo!. You further agree not to disclose or disseminate Yahoo! Confidential Information to anyone, or to discuss anything about the Yahoo! Confidential Information with anyone, other than those of your employees, agents, and contractors who are bound by a written agreement that prohibits unauthorized use or disclosure of the Confidential Information, or except as otherwise agreed in writing by Yahoo!. You may disclose Yahoo! Confidential Information to the extent required by law, provided that you take reasonable steps to notify Yahoo! of such requirement before disclosing the Yahoo! Confidential Information and to obtain protective treatment of the Yahoo! Confidential Information. You acknowledge that damages for improper disclosure of Yahoo! Confidential Information may be irreparable; therefore, Yahoo! is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
4.3 Press Releases and Other Publicity. You may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship of you and Yahoo! without Yahoo!’s express prior written approval.
Term and Termination.
This Agreement continues until terminated by either party. You may terminate this Agreement at any time by discontinuing your use of the SDK and Service, and by destroying all your copies thereof. This Agreement terminates automatically if you violate any term hereof, Yahoo! publicly posts a written notice of termination on Yahoo!'s web site, or Yahoo! sends a written (including email or text message) notice of termination to you directly. Your obligations in this Agreement survive any termination of this Agreement.
Disclaimer of Warranties.
THE SERVICE IS EXPERIMENTAL. YAHOO! DOES NOT REPRESENT OR WARRANT THAT ANY PORTION OF THE SERVICE OR SDK IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID.
THE SERVICE IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND YAHOO! EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT.
YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA OR DAMAGE TO YOUR, OR ANY OF YOUR MOBILE APPLICATION USERS’, DATA, CONTENT, COMPUTER SYSTEMS OR SOFTWARE.
Limitation of Liability.
YAHOO! SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE OR SDK, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT YAHOO! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL YAHOO!’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR AL CUMULATIVE DAMAGES EXCEED THE AMOUNT OF US $100.00.
Exclusions and Limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 6 AND 7 MAY NOT APPLY TO YOU.
Hold Harmless and Indemnity.
To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify Yahoo! and its subsidiaries, affiliates, officers, employees, agents, licensors, co-branders, distribution partners or other partners from and against (i) any breach by you of a warranty or representation set forth herein, and (ii) any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. Yahoo! shall use good faith efforts to provide you with written notice of such claim, suit or action.
10.1 Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement, you and Yahoo! shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of Yahoo!, express or implied, and you shall not attempt to bind Yahoo! to any contract.
10.2 Invalidity of Specific Terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of such documents remain in full force and effect.
10.3 Location of Lawsuit and Choice of Law. This Agreement and the relationship between you and Yahoo! shall be governed by the laws of the United States and the State of California without regard to its conflict of law provisions. You and Yahoo! agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California.
10.4 No Waiver of Rights by Yahoo!. Yahoo!'s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
10.5 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
10.6 Miscellaneous. The section headings and subheadings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect this Agreement. Any construction or interpretation to be made of this Agreement shall not be construed against the drafter. This Agreement and any documents incorporated herein by reference constitute the entire agreement between Yahoo! and you with respect to the subject matter hereof superseding any prior agreements between you and Yahoo! with respect to the Service.
10.7 Government End Users. The SDK and any software components of the Service are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
Version date: 1/21/09 v.2