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READ THIS COMMUNITY EDITION SOFTWARE LICENSE AGREEMENT (AGREEMENT) CAREFULLY. THIS AGREEMENT CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN NUODB, INC., A DELAWARE CORPORATION, WITH AN ADDRESS AT 150 CAMBRIDGEPARK DRIVE, SUITE 701, CAMBRIDGE, MA 02140, USA (LICENSOR), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU OBTAIN THE SOFTWARE, LICENSEE), REGARDING USE OF THE SOFTWARE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF LICENSEE. BY SELECTING THE "Continue" and "Agree" BUTTON OR BY ACCESSING, DOWNLOADING, INSTALLING OR USING ANY OF THE SOFTWARE (ACCEPTANCE), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE LICENSEE AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.
“Application” means Licensee's software application that includes or utilizes the Software, and shall be deemed to include any corresponding Application Client.
“Application Client” means any "client" software (in executable format) that is necessary for an end-user to access and use an Application, which is hosted and operated by Licensee in providing a Licensed Service to such end user.
“Database” means a collection of Engines within a Domain that act together to form a single database.
“Documentation” means the Software user guide, help information and other technical documentation made available by Licensor (in paper, digital or electronic form).
“Domain” means a collection of Hosts that have been provisioned to run Engines to support one or more Databases. For clarity, a single Domain may include one Database, or a group of Databases that are centrally managed by or on behalf of Licensee. If permitted under a particular license type, a Domain may span one or more Locations, by including Engines configured as part of the Domain in those Locations.
“Engine” means Storage Manager Engine or Transaction Engine.
“Host” means each instance of an operating system running on a physical or virtual computer within a Domain that is used to operate the Software.
“License” means the software license granted to Licensee under Section 2.1 of this Agreement.
“Licensed Service” means an Application that is hosted and operated by Licensee for access and use by Licensee's employees or customers on a time-share, service bureau, software-as-a-service or similar basis, but only where the Software is incapable of being used separately or apart from such Application. For clarity, all use of the Software by Licensee (in the aggregate, considering all Applications and Licensed Services) remains subject to any applicable limit on number of licensed Engines and Hosts.
“Location” means a set of Hosts, all in a single data center or cloud provider availability zone, configured by Licensee via the Software’s administration layer.
“Non-Production” means use of the Software in a non-production environment and for non-production purposes, such as a development, test or quality assurance environment.
“Production” means use of the Software with an Application in Licensee’s production environment or for Licensee’s production purposes.
“Software” means the executable version of the Community Edition of Licensor's database software product that is specifically made available for download by Licensee, or that otherwise is intentionally made available or delivered to Licensee under this Agreement (e.g., updates that may be delivered in connection with any support services).
“Storage Manager Engine” means a process within the Database that manages data storage.
“Transaction Engine” means a process within the Database that provides an Application Client with access to the Database.
2.1 Software License. Subject to all terms and conditions of this Agreement, Licensor grants to Licensee a nonexclusive, nontransferable right and license to download, install and use the Software without modification, in accordance with the Documentation, solely for Licensee's internal Production or Non-Production business purposes (including to develop, test, host and operate a Licensed Service) during the license term specified in Section 2.2. The use of Software under the Community Edition License is limited to three (3) Transaction Engines, one (1) Storage Manager Engine, and one (1) Location, and includes support via Licensor’s on-line community forum only. For clarity, to enable use of the Software in more than one Location, Licensee must obtain a paid subscription for an Enterprise Edition License. Under the Community Edition License, Licensee may allocate no more than thirty two (32) GB of memory to each Engine. For each Community Edition License, Licensee may configure Engines on Hosts with up to sixteen (16) real or virtual cores. If a configured Host has more than sixteen (16) cores, a paid subscription for an Enterprise Edition License is required for each additional block of up to sixteen (16) cores and must be obtained under a separate written Agreement. In addition, the license granted in this section 2.1 is subject to the limitations and restrictions set forth in Schedule 1 to this Agreement. Licensee may make a reasonable number of copies of the Software solely for inactive backup and archival purposes.
2.2 Term of License. The License granted under Section 2.1 of this Agreement shall be perpetual unless this Agreement is terminated in accordance with its terms. Notwithstanding anything to the contrary herein, the License shall terminate automatically, without further action or notice by either party, immediately upon any termination of this Agreement.
2.3 License Keys and Logs. Licensee understands and agrees that (a) the Software may contain code and/or may require license keys or devices that detect or prevent unauthorized use of, or disable, the Software, and (b) Licensee will provide Licensor reasonable access to the automated audit logs (if any) maintained by the Software (including without limitation, permitting the Software to transmit the audit logs to Licensor automatically from time to time).
2.4 No Distribution. Notwithstanding anything to the contrary herein, neither the Software nor any Application or Licensed Service may be transferred, sublicensed, distributed or otherwise made available (in whole or in part) to any third party.
2.5 Additional Limitations. The Software is licensed as a single product set and although Licensee may license add-on or additional products, Licensee may not use component parts of the Software separately. In addition, Licensee agrees that its use of the Software shall comply with all other limitations, prohibitions and conditions set forth in the Documentation or elsewhere in this Agreement, including without limitation, any restriction regarding: the time period during which the Software or a License may be used; the size or configuration of the system with which the Software may be used (such as, based on number of Engines, number of Hosts, number of Domains, or other metrics); the number of Applications that can be developed or deployed internally; the number of Licensed Services ; or limited purposes for which the Software may be used (such as, trial or development use).
2.6 Documentation. Subject to all terms and conditions in this Agreement, Licensor grants to Licensee a nonexclusive, nontransferable right and license to use the Documentation, solely in connection with its authorized use of the Software during the term of the License. Licensee may make exact copies of the Documentation as reasonably needed to support its authorized use of the Software.
3.1 Limited Support. The Community Edition License includes support via Licensor’s on-line community forum only. To receive standard support or premium support, Licensee is required to purchase a subscription for an Enterprise Edition License (and pay the corresponding license fees) under a separate written subscription license agreement. Licensor has no obligation to provide updates or upgrades for the Software. In any event, if required by Licensor, Licensee shall promptly download, install and use any Software update made available by Licensor. In any event, Licensee agrees that Licensor may charge in accordance with its then current policies for any professional services that may be provided by Licensor in its sole discretion.
3.2 Other Services. From time to time, Licensee may request and Licensor may agree, subject to availability of applicable resources, to provide certain installation, implementation, custom development, consulting, training or other professional services. The terms and conditions of such arrangement shall be on terms mutually agreed in writing by the parties.
4.1 Taxes. If applicable, Licensee shall be solely responsible for any federal, state, local or foreign taxes, withholdings, duties, tariffs, levies or similar assessments on the license, delivery or use of any Software, Documentation or services. If Licensee claims exemption from any tax, then it shall furnish Licensor with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
4.2 Audit. Upon reasonable advance written notice, Licensor (or an independent auditor reasonably acceptable to Licensee) shall have the right to verify Licensee's compliance with this Agreement. Licensee shall make its systems and all applicable books and records available for such inspection during normal business hours at Licensee's principal place of business. Any audit shall be at Licensor's expense, unless it discloses a failure to comply by Licensee, in which case Licensee shall reimburse Licensor for such expenses.
5.1 Definition. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information that are disclosed by or for Licensor in relation to this Agreement, that are marked or otherwise identified by Licensor as proprietary or confidential at time of disclosure or that by their nature would be understood by a reasonable person to be proprietary or confidential (and including all copies, abstracts, summaries, analyses and derivatives thereof) to Licensor. Confidential Information shall not include any information that Licensee can demonstrate is (a) rightfully furnished to Licensee without restriction by a third party without breach of any obligation to Licensor, (b) generally available to the public without breach of this Agreement, or (c) independently developed by Licensee without reliance on such information. All Software, Documentation and pricing information, and all results, analyses and other information related to any functional, performance and benchmark testing of the Software by Licensee, are deemed to be Licensor's Confidential Information.
5.2 Confidentiality Obligation. Licensee shall use reasonable care to keep the Confidential Information secret and, except for the specific rights granted by this Agreement, Licensee shall possess, access, use, reproduce or disclose any of the Confidential Information without Licensor’s prior written consent. Licensee may disclose Confidential Information only to its employees and contractors who have a need to know for the permitted purpose and who are bound to safeguard the Confidential Information pursuant to obligations that are at least as protective as the restrictions in this Agreement. Licensee shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at Licensor's request at any other time), Licensee shall return all of the tangible Confidential Information to Licensor, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.
6.1 Applications. As between the parties, Licensee owns and retains all rights, title and interests (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to its Applications (but not any Software included or used therein). Licensee shall not embed, use or distribute any open source, copyleft or community source code (including without limitation, any libraries, code or other materials that are licensed or distributed under the GPL, LGPL, CDDL or any similar license or distribution model described by the Open Source Initiative at www.opensource.org) in connection with any Application or Licensed Service, or any other distribution thereof, in any manner that would materially restrict the ability of Licensee to preserve and protect all intellectual property rights and proprietary interests in the Application or Licensed Service, or in any manner that requires, or purports to require: (a) any Software be disclosed or distributed in source code form or be licensed for the purpose of making derivative works; (b) any restriction on the consideration to be charged for the use or distribution of any Software; (c) the creation of any obligation regarding Licensor's intellectual property or proprietary rights, or the grant to any third party of any rights or immunities under Licensor's intellectual property or proprietary rights; or (d) any other limitation, restriction or condition on the right of Licensor with respect to use or distribution of its own intellectual property or proprietary rights.
6.2 Sublicenses and Distribution Limits. Licensee shall not sublicense the use of, or distribute or make available, any Software or Application to any third party.
6.3 Restrictions. Except and only to the extent expressly permitted in this Agreement, Licensee shall not directly or indirectly (a) use any of the Confidential Information to create any software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying organization, structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, distribute, transfer, rent, lease or use the Software, (d) copy, adapt, translate, localize, port, combine, integrate, bundle, create derivative works of or otherwise modify any Software or Documentation, (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction, or (f) permit any third party to engage in any of the foregoing proscribed acts.
6.4 Software. Except for the License expressly granted hereunder, no other right or license is granted (by implication, estoppel or otherwise), no other use is permitted, and as between the parties, Licensor owns and retains all rights, title and interests (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to the Software and Documentation. Licensee agrees that it shall not take any action inconsistent with such title and ownership, and that Licensor is free to use, without restriction, all suggestions and feedback regarding the Software provided by Licensee.
6.5 Markings. Licensee shall not obscure, alter or remove any printed or on-screen proprietary or legal notice displayed by or contained on or in the Software or Documentation.
6.6 Third Party Software. The Software may operate, interface or be delivered with software or other technology (In-Licensed Code) that is licensed from and owned by third parties (In-Licensors), the use of which may be subject to additional or different terms set forth in the applicable open source or other license described in the Documentation. Licensee unconditionally agrees that the In-Licensors (a) make no representation or warranty to Licensee concerning the In-Licensed Code or Software, (b) have no obligation or liability to Licensee as a result of this Agreement and (c) are intended third party beneficiaries of this Agreement. Upon Licensee's specific written request received during the term of this Agreement, Licensor will make available to Licensee the source code for In-Licensed Code, but only if such source code was made available to Licensor and doing so is required by the applicable license.
7.1 Software. Licensor warrants to Licensee that, as delivered by Licensor, the Software will substantially comply with the Documentation for thirty (30) days after acceptance of this Agreement by Licensee (the Warranty Period). Any warranty claim under this Section 7.1 must be made in writing during the Warranty Period. Licensor's sole obligation and Licensee's exclusive remedy in respect thereof is to use reasonable efforts to repair or replace the nonconforming Software or, at Licensor's sole discretion, terminate this Agreement upon written notice to Licensee.
7.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SOFTWARE, DOCUMENTATION AND ANY SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER LICENSOR NOR ITS LICENSORS WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY APPLICATION OR OTHERWISE MEET LICENSEE'S BUSINESS REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR (FOR ITSELF AND ITS LICENSORS) HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND ANY SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Licensee agrees to defend Licensor against any claim by a third party that is related to (a) any Application, (b) Licensee's breach of any representation, warranty, covenant or other agreement made herein, or (c) claims arising from any of the following: (i) any use of Software not strictly in accordance with this Agreement, (ii) any use of Software in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Software not created by Licensor, (iv) Licensee's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Software, or (v) any intellectual property right in which Licensee or any of its affiliates has an interest, and to indemnify Licensor for settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, OR IN THE CASE OF (I) BREACH OF SECTION 5 (CONFIDENTIALITY) OR SECTION 6 (PROPRIETARY RIGHTS) OR (II) LIABILITIES PURSUANT TO SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY (OR LICENSOR'S LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COSTS OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES IN EXCESS OF FIFTY DOLLARS ($50), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10.1 Term. This Agreement shall commence upon acceptance of this Agreement by Licensee (as defined in the opening paragraph of this Agreement) and extend indefinitely unless terminated as provided herein.
10.2 Termination. This Agreement may be terminated by (a) either party, if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party, (b) either party immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course, (c) Licensor, if Licensee or any of its affiliates enters a commercial transaction with Licensor (or an authorized reseller of Licensor) involving the license of Licensor’s software, which includes, without limitation, any transaction either granting rights in Licensor’s Enterprise Edition of its software or granting any OEM distribution rights, or (d) Licensor, upon thirty (30) days’ written notice to Licensee, if Licensor has a commercially reasonable basis for terminating this Agreement.
10.3 Effects of Termination. Upon termination of this Agreement for any reason, the License and all other rights, obligations and licenses of the parties hereunder shall cease, except that the following shall survive: (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement; (b) Licensee shall stop using, de-install and destroy all copies of the Software, Documentation and Applications, and stop providing Licensed Services; and (c) the provisions of Sections 4 (Taxes and Audit), 5 (Confidentiality), 6 (Proprietary Rights), 7 (Limited Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.
11.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. No amendment, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
11.2 Publicity. Licensee hereby consents to i) Licensor's inclusion of its name and logos in connection with in customer listings and marketing materials that may be published as part of Licensor's marketing efforts, and ii) the issuance of a press release regarding the existence of the license relationship between Licensor and Licensee. Licensor agrees to consult with Licensee before issuing any such press release. Upon Licensor’s reasonable request, Licensee further agrees to serve as a reference for Licensor’s customers and prospects and for Gartner, Inc. and other research and advisory entities identified by Licensor.
11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between United States and foreign laws, regulations and rules, United States laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Unless waived by Licensor in its sole discretion, the exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Massachusetts having jurisdiction over Licensor's facility, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.4 Remedies. The failure of either party to enforce its rights or remedies under this Agreement at any time or for any period will not be construed as a waiver of such rights or remedies, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Each party agrees that, in the event of any breach or threatened breach of Section 5 or Section 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond or surety.
11.5 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses specified at the time of acceptance or at such other address designated by written notice. Notices will be deemed duly given and effective: when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; or when received, if personally delivered or sent by overnight courier or certified or registered mail, return receipt requested.
11.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by Licensee without the prior written consent of Licensor. Any attempted transfer in violation hereof will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
11.7 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
11.8 Government. If any user of the Software or Documentation is an agency, department or other entity of the United States Government, then the use, duplication, reproduction, modification, release, disclosure or transfer of the Software or Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software, the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
11.9 Counterparts. This Agreement may be executed in one or more counterparts and by different parties in separate counterparts. All of such counterparts shall constitute one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other party. This Agreement may be executed by the parties and transmitted electronically and, if so executed and transmitted, shall be for all purposes as effective as if the parties had delivered an executed original document.
[END OF COMMUNITY EDITION SOFTWARE LICENSE AGREEMENT]
In addition to any other terms and conditions, including any limitations set forth in Section 2.1, the license granted by Licensor to Licensee is subject to the following restrictions and limitations:
1. The Database may not exceed 500 gigabytes;
2. The Database may include a maximum of 500 tables where each table shall have
3. Each Engine will have a maximum of 100 connections
[End of Schedule 1]