This Software License Agreement (the “Agreement”) is made as of the date stated below (“Effective Date”) by and between the EDB entity identified on the Statement of Work (defined below) (“EDB”) and the company identified on the Statement of Work (the “Company” and, together with EDB, the “parties”), and includes the following Terms and Conditions.
Effective Date: The Effective Date of the SOW
Software: As per Statement of Work (defined below)
Support: As per Statement of Work and associated Master Services Agreement (“MSA”)
Term: As specified on the Statement of Work
Fees, Payment Terms: As per applicable Statement of Work
Meaning of Statement of Work: A Statement of Work (“SOW”) is the mutually executed ordering document describing the Software, Software license details, Support Subscription details, Services details and pricing related to each (as applicable)
Terms and Conditions
1. Software License. EDB and/or its licensors have developed and licenses the software specified on the underlying SOW (“Software”) for use by Company on its own and for use with Company’s own software. While such use may include Company’s use on Company controlled servers for applications that are client facing, it expressly excludes any deployment on non-Company controlled servers or other distribution to any third party. Upon EDB’s receipt of all of the fees specified on the underlying SOW for support services and licenses (collectively the “Fees”), EDB grants to Company a limited, worldwide, non-exclusive, revocable, paid-up, non-transferable, non-sublicensable license to use the Software for the duration of the Term of the support services stated on the applicable SOW, subject to the additional restrictions and permissions in this Agreement (“Software License”). For clarity, some of the Software, including scripts, is provided in source code formats, but Company may not modify any Software in any format. This Agreement does not apply to any open source software or other third party software. All Fees are non-refundable. Any changes to this Agreement, including changes in Software licensed by EDB to Company must be stated in the applicable SOW or other written document, and signed by both parties. Particular terms not defined in this Agreement may be defined in the SOW.
2. Term. Each Software License begins upon EDB’s receipt of all the Fees, and continues for the duration of the “Term” stated above. Company may renew the Software License for an additional Term as agreed to by the parties by paying the Fees set forth in the applicable SOW and/or any extensions thereto prior to the end of the current Term. If EDB does not receive renewal Fees set forth in the applicable SOW or any extension thereto by the end of a current Term, then the Software License shall automatically terminate, and Company is required to delete all copies of the Software in Company’s possession or control at the end of the current Term. EDB may terminate a Software License on no fewer than thirty days’ prior written notice to Company for any uncured material breach, except that this Software License will expire coterminous with the underlying Support subscription in the underlying SOW. Each license will expire unless renewed pursuant to a SOW, or extension thereto effective at the end of the current Term.
3. Restrictions. An “instance” is defined as a PostgreSQL, 2ndQPostgres, or Postgres-BDR server process running on a unique combination of an Internet protocol (“IP”) address and transmission control protocol (“TCP”) port (usually port 5432). Company may only use the Software as provided herein. Further Company shall not disclose or use the Software (a) outside of Company for any purpose; or (b) for technical evaluation from any third party; or (c) for creating a product that competes with the Software or any other EDB product; or (d) for resale of any kind. Company may not permit any affiliate or subsidiary of the Company (each, an “Affiliate”) to access or use the Software, unless the Affiliate is listed in the SOW, in which case Company will be responsible for the actions and omissions of each Affiliate. As noted in the Support provisions, all production instances of the Software are also required to be under an EDB Support subscription; otherwise the Software License for the same automatically expires. All rights not expressly granted to Company are reserved by EDB.
4. Support. EDB will provide support and maintenance services for the Software during the Term set forth in the applicable SOW and MSA (“Support”).
5. Proprietary Rights. EDB and EDB’s licensors retain all ownership rights in and to the Software, upgrades, updates, product documentation, and all modifications and enhancements to each, including all intellectual property rights that are not expressly granted in this Agreement. Except Company’s ownership in its Confidential Information, EDB own all right, title and interest in and to all service deliverables, but EDB grants to Company a nonexclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, and perform any such deliverables solely in association with EDB’s software during Company’s valid subscription. If EDB services are performed on the Postgres Community’s open source code, the license will be for the length of Company’s use of the Postgres software and be subject to the Postgres open source license. EDB will have the sole right to use and/or to apply for patents, copyrights or other statutory or common law protections for any service deliverable. Company agrees that nothing in this agreement will be deemed to prohibit or limit EDB’s use, now or at any time, of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience, in any way whatsoever that are used or developed in the performance of support or services under this agreement, subject to EDB’s obligation with respect to Your Confidential Information. Company hereby assigns, all right, title, and interest in and to all modifications, enhancements, customizations, source code, acquired or developed during the performance of the support or services under this agreement. EDB’s product documentation, training courses and training materials are all copyrighted by EDB. Training materials may not be copied electronically or otherwise whether or not for archive purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any training Materials will be limited to use by the specific persons to whom the training services are provided. All of EDB’s trademarks, trade names, logos and notices present on the Software, Documentation, deliverables and training materials shall be preserved
6. Confidentiality. Except as expressly set forth herein, EDB and Company shall maintain in confidence the terms of this Agreement. Each party (“Discloser”) may disclose to the other party (“Recipient”) proprietary or confidential information ("Confidential Information"). “Confidential Information” includes any information, communication or data, in any form, including, but not limited to oral, written, or electronic, which the Discloser desires to protect against unrestricted disclosure or use, including without limitation, EDB’s Software and Proprietary Rights, Company’s customer information, each party’s business information, any personally-identifiable information, financial data, marketing data, and any other information that a reasonable business person would expect to keep confidential. Confidential Information does not need to be marked as such. All Confidential Information shall remain the sole property of the Discloser and its confidentiality shall be maintained and protected by the Recipient with the same degree of care as the Recipient uses for its own confidential and proprietary information, but in no event less than a reasonable degree of care. The Recipient shall not disclose the Discloser’s Confidential Information to any third party or use it other than for purposes of this Agreement. The restrictions on the use or disclosure of any Confidential Information shall not apply to any information: (i) that is or becomes generally available to the public without breach of this Agreement by the Recipient; (ii) is rightfully in the Recipient's possession (without a duty of confidentiality) prior to disclosure to it by the Discloser; or (iii) is independently developed by the Recipient. If a Recipient is required by applicable laws or regulations to disclose the Discloser’s Confidential Information, then unless prohibited by applicable laws or regulations the Recipient will provide the Discloser prompt written notice and will cooperate with the Discloser’s efforts to limit the required disclosure.
7. Data. EDB may collect and use technical information regarding how Company uses the Software and how EDB provides Support to Company (“Non-Personal Data”). Other than Personal Data (as defined under applicable data privacy laws), in support of the administration of this Agreement, EDB does not need nor want Personal Data, therefore Company represents and warrants that it will not provide any such Personal Data contained in its applications using the Software or software EDB is supporting or servicing. All business contact Personal Data (as mentioned above) will be collected, processed, stored, shared, used and protected as stated in EDB’s current privacy statement, as amended by EDB from time to time (see www.enterprisedb.com/privacy-policy).
8. Indemnity. Each party (“Indemnitor”) shall indemnify, defend and hold harmless the other party (“Indemnitee”) from and against any and all claims, and suits, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with any action, suit, proceeding or claim (each, a “Claim”), brought by an unrelated third party against the Indemnitee that alleges that (x) in the case EDB, EDB’s Software as delivered to the Company infringes any intellectual property or other rights of a third party or violates any applicable law or regulation and (y) in the case of Company, any application it develops that utilizes the Software infringes any intellectual property or other rights of a third party or violates any applicable law or regulation. For any Claim, the Indemnitee will provide prompt written notice to the Indemnitor and provide reasonable assistance to the Indemnitor. The Indemnitor will promptly assume the defense of any valid Claim with Indemnitor’s counsel, and shall have the right to settle or defend the Claim at Indemnitor’s sole expense. However, Indemnitor shall not have the right to admit or assess liability against any Indemnitee.
With respect to EDB’s indemnity for intellectual property claims, if Company’s use of Software hereunder is enjoined due to a Claim, then EDB may, at EDB’s sole option and expense: (a) procure for Company the right to continue using the Software under the terms of this Agreement; (b) replace or modify Software so that it is non-infringing, but functionally equivalent in all material respects; or (c) request return of the applicable Software and, upon receipt of such notice, the corresponding licenses are terminated and EDB will refund the prepaid but unused fees paid for EDB’s infringing software. EDB’s obligations under this section are contingent upon: (i) Company giving prompt written notice to EDB of any Claim; (ii) Company allowing EDB to control the defense and any related settlement of any Claim; and (c) Company furnishing EDB with reasonable assistance in the defense of any Claim. This indemnity does not apply to the extent the alleged infringement is based on (1) combination with products, data or business processes not licensed to Company by EDB, (2) Company’s specific use of Software, (3) use of any older release of Software when use of a newer revision would have avoided the infringement, (4) any modification or alteration of the Software unless performed by EDB, (5) any intellectual property right owned or licensed by Company, (6) EDB’s compliance with any materials, designs, specifications or instructions provided by Company, or (7) open source software. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND EDB’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
9. Notwithstanding any other clause in this Agreement, in no event will either party be liable for any special, indirect, incidental, punitive, exemplary or consequential damages (including, without limitation, any failure to realize savings or other benefits; any loss of use; or any claims made by or any payments made to any third person), any loss of revenue or profits, in each case arising from or in connection with this Agreement whether in an action based on contract, tort or any other legal theory, whether or not the aggrieved party has been notified of the possibility thereof. Furthermore, and notwithstanding any other clause in this Agreement, each party’s total aggregate liability arising from or in connection with this Agreement, whether in actions based on contract, tort or any other legal theory, and whether or not the aggrieved party has been notified of the possibility thereof, will be limited to an amount not to exceed the amount paid under the applicable SOW during the twelve (12) month period preceding the date of the claim. The foregoing limitations and exclusions shall not apply to: (i) each party’s breach of Confidentiality (Section 6), (ii) each party’s willful or reckless misconduct, and (iii) Company’s misappropriation, mis-use and infringement of EDB’s intellectual property rights. The foregoing limitations, exclusions and disclaimers are an allocation of the risk between two sophisticated parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.
WE BOTH AGREE THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT ARE CONTRACTUAL IN NATURE ONLY AND SUBJECT TO THE SOLE AND EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT. NO PERSON IS ASSERTING THE TRUTH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT; RATHER THE PARTIES HAVE AGREED THAT SHOULD ANY REPRESENTATION OR WARRANTY OF ANY PARTY PROVE UNTRUE, THE OTHER PARTY SHALL HAVE THE SPECIFIC RIGHTS AND REMEDIES SPECIFIED IN THIS AGREEMENT AS THE EXCLUSIVE REMEDY AND THAT NO OTHER RIGHTS, REMEDIES OR CAUSES OF ACTION (WHETHER IN LAW OR IN EQUITY OR WHETHER IN CONTRACT OR TORT) ARE PERMITTED TO ANY PARTY TO THIS AGREEMENT AS A RESULT OF THE UNTRUTH OF ANY SUCH REPRESENTATION OR WARRANTY. FURTHERMORE, WE BOTH AGREED THAT WE ARE NOT RELYING ON ANY STATEMENTS THAT ARE OUTSIDE OF THIS AGREEMENT (FOR EXAMPLE, STATEMENTS MADE BY MARKETING, TECHNICAL AND SALES PEOPLE, ETC.). WE BOTH AGREE THAT IF THERE WAS ANY SUCH STATEMENTS BEING RELIED UPON, WE WOULD HAVE INCORPORATED THEM SPECIFICALLY INTO THIS AGREEMENT.
10. Warranties and Disclaimer. EDB represents and warrants that: for a period of thirty (30) days from the date of initial subscription start date, which is known as the warranty period, the Software will substantially conform to the description contained in EDB’s Software’s online end user manuals or on-line help files regarding the use of EDB’s software (which We call EDB’s “Documentation”). The warranty given above will only apply if: (i) Software has been properly installed and used at all times in accordance with the instructions in its Documentation, and (ii) no modification, alteration or addition has been made to the Software. For any breach of the warranty, Company’s sole and exclusive remedy, and EDB’s sole and exclusive obligation, will be for EDB to repair or replace the Software. If EDB is unable to correct such non-conformance in Software after a reasonable opportunity, EDB will refund the pro-rated and unused subscription fees actually paid for such subscription; provided that these remedies are only available, if EDB receives notice of such breach within the warranty period. EXCEPT AS PROVIDED IN THIS SECTION, EDB PROVIDES THE SOFTWARE "AS IS" AND DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. EDB DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR BE FREE FROM ERRORS OR THAT THE SOFTWARE IS DESIGNED TO MEET COMPANY’S REQUIREMENTS.
11. Termination for Material Breach. If a party materially breaches this Agreement, the non-breaching party will notify the breaching party in writing, and the breaching party shall have thirty days to fully cure the material breach; otherwise this Agreement will terminate at the end of the thirty-day period. Either party may terminate this Agreement immediately upon written notice if a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or dissolves, liquidates or otherwise fails to operate in the ordinary course. Those provisions of this Agreement that expressly state they survive termination of this Agreement, or that are necessary to construe the Agreement or adjudicate rights under this Agreement shall survive any termination of this Agreement.
12. Governing Law. This Agreement (including claims in contract or tort) will be governed by the laws of the EDB entity location listed on the SOW without regard for its choice of law provisions. The parties specifically agree that the U.N. Convention on the International Sale of Goods shall not apply. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the Courts of the EDB entity location identified in the SOW, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
13. Waiver. Unless waived and agreed in writing by the parties, no action or inaction by a party under this Agreement will constitute a waiver of a party’s rights or obligations under this Agreement.
14. Entire Agreement, Severability, Assignment. This Agreement (including any SOW, MSA addendum or amendment to this Agreement is the entire agreement between Company and EDB relating to the Software and the support services (if any) and supersedes and replaces all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement. Company’s use and acceptance of the Software is expressly limited to the terms and conditions of this Agreement and any purchase orders that have been signed by an authorized representative of both parties. Any additional or different terms or conditions in any communication by Company are hereby rejected and shall be null and void, irrespective of the means of Company’s acceptance. Any failure by EDB to object to any additional or different provisions proposed by Company shall not constitute a waiver of these terms and conditions, nor constitute acceptance of any such Company’s terms and conditions. This Agreement shall be applicable whether or not it is attached to or enclosed with the Software. Company may cancel submitted purchase orders or SOWs (if any) only with the prior written consent of EDB. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other provisions shall continue in full force and effect. The failure of EDB to act with respect to a breach of this Agreement by Company or others does not constitute a waiver and shall not limit EDB’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Company and may not be assigned or transferred for any reason whatsoever, directly or indirectly, without EDB’s consent and any action or conduct in violation of the foregoing shall be void and without effect. EDB expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. If the terms of this Agreement conflict with any other agreement between the parties, this Agreement will prevail.