NuoDB End User License Agreement ("EULA")

PLEASE READ THIS END USER LICENSE AGREEMENT (THE "EULA") CAREFULLY BEFORE INSTALLING, USING, ACCESSING OR CONSUMING THE SOFTWARE OR SUPPORT SERVICES FROM NUODB. BY INSTALLING, USING, ACCESSING OR CONSUMING THE NUODB SOFTWARE OR SUPPORT SERVICES, YOU (THE “CLIENT”) SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THIS EULA AND ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS CONTAINED HEREIN. AN INDIVIDUAL ACTING ON BEHALF OF A CLIENT ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, THEN YOU MUST NOT INSTALL, USE, ACCESS OR CONSUME THE NUODB SOFTWARE OR SUPPORT SERVICES.

1. DEFINITIONS

"Agreement" means the terms in the body of this document and any Order Forms. “Order Form” means the written description in paper or electronic form prepared by NuoDB, Inc. (“NuoDB”), which describes the Term License, License Fee, License Term and any related limitations, terms and conditions applicable to the provision of the Software to the CLIENT. “Term License” means the license applicable to the CLIENT’s authorized use of the Software, Documentation and Applications that is expressly specified in the Order Form, and which shall be further described in this EULA. “License Fee” means the license fee specified in the Order Form and payable for the Term License during the specified License Term, subject to this EULA and any limitations specified in the Order Form. “License Term” means the license term specified in the applicable Order Form.

“Software” means the executable version of NuoDB’s database software product that is specifically identified in the Order Form and made available for download by CLIENT, or that otherwise is made available or delivered to CLIENT under this EULA, including any updates delivered in connection with any support services. “Documentation” means the Software user guide, help information and other technical documentation made available by NuoDB (in paper, digital or electronic form). “Support Services” means the technical support and maintenance services for the Software provided by NuoDB which are fully described in the NuoDB Technical Support and Maintenance Services document, attached hereto as Appendix A “Production” means use of the Software with an Application in CLIENT’s production environment or for CLIENT’s production purposes. “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.

“Application” means CLIENT’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 CLIENT in providing a Licensed Service to such end user. “Licensed Service” means an Application that is hosted and operated by CLIENT for access and use by CLIENT’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. All use of the Software by CLIENT (including all Applications and Licensed Services) remains subject to any applicable limitations specified in the Order Form.

“Database” means a collection of Engines within a Domain that act together to form a single database. “Engine” means Storage Manager Engine and Transaction Engine. “Domain” means a collection of Hosts that have been provisioned to run Engines to support one or more Databases. A single Domain may include one Database, or a group of Databases that are centrally managed by or on behalf of CLIENT. 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. “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. “Location” means a set of Hosts, all in a single data center or cloud provider availability zone, configured by CLIENT via the Software’s administration layer. “Transaction Engine” means a process within the Database that provides an Application Client with access to the Database. “Storage Manager Engine” means a process within the Database that manages data storage. “vCPU” means a virtual processor, or a portion or share of a physical CPU that is assigned to a virtual machine. Unless otherwise specified, each physical core consists of two (2) vCPUs.

“NuoDB” means NuoDB, Inc., a Delaware corporation, with offices at 150 CambridgePark Drive, Suite 701, Cambridge, MA 02140, USA.

2. LICENSE

2.1 Software License

Subject to all terms and conditions of this EULA, and the payment of all applicable fees, NuoDB grants to the CLIENT a nonexclusive, nontransferable right and license to download, install and use the Software without modification, in accordance with the Documentation, solely for the CLIENT’s internal business purposes (including to develop, test, host and operate a Licensed Service) during the License Term. The CLIENT’s use of the Software is limited to either Production or Non-Production purposes, as specified in the Order Form. The CLIENT may make a reasonable number of copies of the Software solely for inactive backup and archival purposes. The use of Software under a license is subject to the License Fee and limitations specified in the Order Form.

2.2 License Term

Each Term License and the associated license rights granted, shall be valid solely for the License Term. Each License Term shall automatically renew for an additional 1 year term at NuoDB’s then current pricing, unless either party gives the other written notice of nonrenewal at least 30 days before the end of the relevant License Term. Notwithstanding the foregoing, the License Term shall terminate automatically, without further action or notice by either party, immediately upon any termination of this EULA.

2.3 License Keys and Logs

The CLIENT 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) it will provide NuoDB 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 NuoDB automatically from time to time).

2.4 Distribution

The Software may not be transferred, sublicensed or otherwise distributed (in whole or in part), except pursuant to a Licensed Distribution. The term “Licensed Distribution” means either: (a) any distribution of the Software only as and to the extent expressly authorized and specified in the Order Form or any separately written license agreement executed by the parties; or (b) any distribution of an Application Client to an end-user of a Licensed Service pursuant to an enforceable sublicense agreement that limits use by the end-user to accessing and using the Licensed Service. All Licensed Distributions shall be subject to the requirements of Section 6.2.

2.5 Additional Limitations

The Software is licensed as a single product set and the CLIENT may not use component parts of the Software separately. The CLIENT agrees that its use of the Software shall comply with all other limitations, prohibitions and conditions set forth in the Order Form, Documentation or elsewhere in this EULA, including without limitation, any restriction regarding: the time period during which the Software may be used or a Term License may be valid; 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, number of vCPUs, or other metrics); peak load limitations; the number of Applications that can be developed or deployed internally; the number of Licensed Services or Licensed Distributions; 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 EULA, and during the applicable License Term, NuoDB grants to the CLIENT a nonexclusive, nontransferable right and license to use the Documentation, solely in connection with its authorized use of the Software during the License Term. The CLIENT may make a limited number of exact copies of the Documentation as reasonably needed to support its authorized use of the Software.

2.7 Community Edition Licenses

This EULA does not grant any rights for the use of the Community Edition of NuoDB’s software, and any such rights must be obtained under a separate agreement. Unless otherwise specified in an Order Form, upon commencement of this EULA, the CLIENT expressly acknowledges and agrees that: (i) any licenses granted by NuoDB to the CLIENT (or any of the CLIENT’s affiliates) for the use of the Community Edition of NuoDB’s software shall automatically terminate, and (ii) the CLIENT (and any of the CLIENT’s affiliates) will no longer be eligible to obtain a license for the use of the Community Edition of NuoDB’s software.

3. SERVICES

Unless otherwise specified in an Order Form, payment of the License Fee includes access to applicable Support Services during the applicable License Term. NuoDB will use commercially reasonable efforts to provide Support Services for each major or minor release and its maintenance releases for 18 months from the generally available release date of the major or minor release. The CLIENT shall promptly download, install and use any Software update made available by NuoDB. The CLIENT agrees that NuoDB may charge in accordance with its then current policies for any Support Services resulting from problems, errors or inquiries related to any Application or any use of the Software that does not comply with this EULA. From time to time, the CLIENT may request and NuoDB may agree, subject to availability of applicable resources, to provide certain installation, implementation, custom development, consulting, training or other professional services on the terms set out in a separate professional services agreement and any related Statement of Work, to be entered into by the Parties.

4. PAYMENTS

4.1 Fees

The CLIENT agrees to pay NuoDB all License Fees (as applicable) and other charges in the amounts and at the times specified in the Order Form and as otherwise provided in this EULA.

4.2 Payment Terms

Unless specified in the Order Form, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars at NuoDB’s address, or to an account specified by NuoDB. Any amount not paid when due (i) may, at NuoDB’s discretion, result in a termination of the CLIENT’s rights to use the Software and Services, and (ii) may be subject to a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. The CLIENT agrees to reimburse NuoDB for all costs (including attorneys' fees) incurred in collecting late payments.

4.3 Taxes

The prices stated in this EULA do not include 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. The CLIENT agrees to pay all such charges and not to reduce any payment to NuoDB as a result thereof. All amounts due hereunder shall be grossedup for any withholding taxes imposed by any foreign government. If the CLIENT claims exemption from any tax, then it shall furnish NuoDB with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.

4.4 Audit

Upon reasonable advance written notice, NuoDB (or an independent auditor reasonably acceptable to the CLIENT) shall have the right to verify the CLIENT’s compliance with this EULA. The CLIENT shall make its systems and all applicable books and records available for such inspection during normal business hours at the CLIENT’s principal place of business. Any audit shall be at NuoDB’s expense, unless it discloses an underpayment by the CLIENT for the audited period in excess of 5%, in which case the CLIENT shall reimburse NuoDB for such expenses.

5. CONFIDENTIALITY

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 a party in relation to this EULA, that are marked or otherwise identified 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). Confidential Information shall not include any information that the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the disclosing party, (b) generally available to the public without breach of this EULA or (c) independently developed by it 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 the CLIENT, are deemed to be NuoDB’s Confidential Information. Each party shall use reasonable care to keep the other’s Confidential Information secret and, except for the specific rights granted by this EULA, neither party shall possess, access, use, reproduce or disclose any of the other’s Confidential Information without its prior written consent. The receiving party 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 EULA. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this EULA (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this EULA without the prior written consent of the other party; provided, either party may provide a copy of this EULA or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.

6. PROPRIETARY RIGHTS

6.1 Applications

As between the parties, the CLIENT owns and retains all rights, title and interest (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). The CLIENT 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, Licensed Service or other Licensed Distribution in any manner that would materially restrict the ability of the CLIENT 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 NuoDB’s intellectual property or proprietary rights, or the grant to any third party of any rights or immunities under NuoDB’s intellectual property or proprietary rights; or (d) any other limitation, restriction or condition on the right of NuoDB with respect to use or distribution of its own intellectual property or proprietary rights.

6.2 Sublicenses

The CLIENT shall not sublicense the use of, or distribute, any Software or Application, except as included or used in a Licensed Distribution, and then only to end user customers. All Licensed Services shall be provided pursuant to enforceable written terms of service (or service agreement), and all other Licensed Distributions shall be made pursuant to an enforceable written sublicense agreement, in either case, that contains provisions for NuoDB’s benefit that are at least as protective of NuoDB (and its rights in and to the Software) as the provisions of this EULA and all restrictions, disclaimers and limitations herein, that prohibits any further sublicensing or distribution and that terminates automatically upon any expiration or termination of this EULA.

6.3 Restrictions

Except and only to the extent expressly permitted in this EULA, the CLIENT shall not directly or indirectly (a) use any of NuoDB’s 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, NuoDB owns and retains all right, title and interest (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to the Software, Documentation and Support Services. The CLIENT agrees that it shall not take any action inconsistent with such title and ownership, and that NuoDB is free to use, without restriction, all suggestions and feedback regarding the Software provided by the CLIENT.

6.5 Markings

The CLIENT 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 (InLicensors), 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. The CLIENT unconditionally agrees that the In-Licensors (a) make no representation or warranty to the CLIENT concerning the In-Licensed Code or Software, (b) have no obligation or liability to the CLIENT as a result of this EULA and (c) are intended third party beneficiaries of this EULA.

7. LIMITED WARRANTIES AND DISCLAIMERS

NuoDB warrants to the CLIENT that during the applicable License Term, the Support Services will be performed in a professional and workmanlike manner. Any Support Services warranty claim under this Section must be made by the CLIENT in writing within 30 days after performance of the nonconforming Support Service. the CLIENT’s sole and exclusive remedy, and NuoDB’s sole and exclusive obligation, in respect thereof is for NuoDB to use commercially reasonable efforts to reperform the nonconforming Support Service. NuoDB warrants to the CLIENT that, as delivered by NuoDB, the Software will substantially comply with the Documentation for 90 days after acceptance of this EULA by the CLIENT (the “Warranty Period”). Any Software warranty claim under this Section must be made in writing during the Warranty Period. NuoDB’s sole obligation and the CLIENT’s exclusive remedy in respect thereof is to use commercially reasonable efforts to repair or replace the nonconforming Software or, at NuoDB’s sole discretion, terminate this EULA upon written notice and refund the unused License Fees pre-paid by the CLIENT, upon return of the Software. EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION 7, THE SOFTWARE, DOCUMENTATION AND ALL SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER NUODB NOR ITS LICENSORS WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY APPLICATION OR OTHERWISE MEET THE CLIENT’S BUSINESS REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NUODB (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 SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, 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.

8. INDEMNIFICATION

8.1 By CLIENT

Subject to the indemnity conditions set forth in Section 8.3 below, the CLIENT agrees to defend NuoDB against any claim by a third party that is related to (a) any CLIENT’s Application, (b) CLIENT’s breach of any representation, warranty, covenant or other agreement made herein, or (c) claims excluded under Section 8.2(b), and to indemnify NuoDB for settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims.

8.2 By NuoDB

Except as provided below and subject to the indemnity conditions set forth in Section 8.3 below, NuoDB agrees to defend the CLIENT against any claim by a third party that the Software infringes a valid US patent (issued as of the date of acceptance of this EULA by the CLIENT), copyright or trade secret of such third party, and to indemnify CLIENT for actual settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims. If any Software becomes or, in NuoDB’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, NuoDB may, at its option and expense (i) obtain for the CLIENT the right to continue using such Software or (ii) replace or modify such Software so that it becomes noninfringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to NuoDB, then NuoDB may (iii) terminate this EULA upon written notice to the CLIENT and, after return of the Software, refund the unused License Fees pre-paid by the CLIENT. The foregoing states NuoDB’s entire liability, and the CLIENT’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Software or any part thereof or by its use or operation. NuoDB shall have no liability or obligation to indemnify the CLIENT hereunder with respect to any claim based upon (i) any use of Software not strictly in accordance with this EULA, (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 NuoDB, (iv) Software that complies with the CLIENT’s specific requirements, (v) the CLIENT’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Software after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which the CLIENT or any of its affiliates has an interest.

8.3 Conditions

The indemnifying party’s obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not be responsible for any settlement it does not approve in writing.

9. LIMITATION OF LIABILITY

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 NUODB’S LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS EULA, 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, © INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, (D) IN THE CASE OF NUODB (AND ITS LICENSORS), AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (E) IN THE CASE OF CLIENT, AGGREGATE DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAYABLE TO NUODB HEREUNDER, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS EULA AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

10. TERM AND TERMINATION

10.1 Term

This EULA shall commence upon execution by the Parties and, unless terminated earlier as provided herein, terminate upon expiration or termination of the applicable License Terms.

10.2 Termination

This EULA may be terminated by either party (a) if the other party materially breaches a provision of this EULA and fails to cure such breach within 30 days (or within 10 days in the case of any non-payment) after receiving written notice of such breach from the nonbreaching party or (b) 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.

10.3 Effects of Termination

Upon termination of this EULA 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 (including without limitation, payment obligations) and any remedies for breach of this EULA; (b) the CLIENT shall stop using, de-install and destroy all copies of the Software, Documentation and Applications, stop providing Licensed Services and stop making other Licensed Distributions; and (c) the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 7 (Limited Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3.

11. GENERAL PROVISIONS

11.1 Order of Precedence

In the event of any conflict between the terms of this EULA, the Exhibits to this EULA, any professional services agreement, a SOW or the Order Form the following order of precedence shall apply: the Order Form, the EULA, the Exhibits, the SOW, and the professional services agreement.

11.2 Entire EULA

This EULA (together with Order Forms & Exhibits) constitutes the entire agreement between the CLIENT and NuoDB and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this EULA (and all past dealing or industry custom). Any inconsistent or additional terms on any related the CLIENT purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this EULA. No amendment, consent or waiver under this EULA 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 EULA is in addition to any other right or remedy, at law or in equity. If any provision of this EULA is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and enforceable. This EULA is in English only, which language shall be controlling in all respects. No version of this EULA in another language shall be binding or of any effect.

11.3 Publicity

The CLIENT hereby consents to (i) NuoDB’s inclusion of its name and logos in customer listings and marketing materials that may be published as part of NuoDB’s marketing efforts, (ii) the issuance of a press release regarding the existence of the license relationship between NuoDB and the CLIENT, and (iii) the creation of a case study regarding the CLIENT’s usage of NuoDB’s products. NuoDB agrees to consult with the CLIENT before issuing any such press release or case study. Upon NuoDB’s reasonable request, the CLIENT further agrees to serve as a reference for NuoDB’s customers and prospects and for research and advisory entities reasonably identified by NuoDB.

11.4 Governing Law

This EULA 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 EULA. Unless waived by NuoDB in its sole discretion, the exclusive jurisdiction and venue for actions related to this EULA will be the state or federal courts located in Massachusetts having jurisdiction over NuoDB’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 EULA, 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.

11.5 Remedies

The failure of either party to enforce its rights or remedies under this EULA 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.

11.6 Notices

All notices under this EULA will be in writing, in English and delivered to the parties at their respective addresses stated herein, in the Order Form 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.

11.7 Assignment

This EULA and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, not to be unreasonably withheld. However, without consent, (i) NuoDB may subcontract performance of the Support Services and other services in connection with its obligations under this EULA, provided that NuoDB will remain responsible for the performance of such subcontracted services, and (ii) either party may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this EULA (whether by sale of stock or assets, merger, consolidation, corporate reorganization, or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This EULA will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.

11.8 Independent Contractors

The parties shall be independent contractors in their performance under this EULA, 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.

11.9 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 EULA.