EnterpriseDB Corporation (“EDB”) offers BigAnimal Cloud Services (“BigAnimal” or “Cloud Services”) according to the terms and conditions in this BigAnimal Cloud Services Agreement (“Agreement”). By creating an account to use BigAnimal or executing an order form (each an “Order”), Customer agrees to this Agreement. If Customer represents an organization, Customer represents and warrants that Customer are authorized to agree to this Agreement on behalf of Customer organization. If the Customer does not agree to this Agreement, do not use BigAnimal.
(a) Cloud Services. The Customer may access and use BigAnimal Cloud Services in accordance with this Agreement. The service level agreements EDB currently offer with respect to BigAnimal are located at: https://www.enterprisedb.com/service-level-agreement-sla-biganimal. The Customer will comply with all laws, rules and regulations applicable to the use of BigAnimal and any terms applicable to additional products or services that the Customer uses. The Customer understands and agrees that EDB may change, suspend or discontinue any part or all of BigAnimal.
Some BigAnimal Cloud Services features may be in preview, testing, or “beta” phase (each, a “Beta Offering”), for the purpose of evaluating performance, identifying defects and obtaining feedback. EDB will not be liable for any damages in connection with Customer’s use of any Beta Offering. The Customer is not required to use any Beta Offering, and EDB has no obligation to release a final version of any Beta Offering.
EDB will provide Support for BigAnimal Cloud Services (“Support”), in accordance with the applicable support policy, currently available at: https://www.enterprisedb.com/slo-support-terms-biganimal. EDB may modify our support policy from time to time.
(b) License to EDB Proprietary Software. EDB grants Customer an irrevocable (but subject to termination), non-transferable, non-sublicensable, non-exclusive, worldwide right and license to use the object code form of the EDB proprietary software listed at: https://www.enterprisedb.com/sites/default/files/edb_supported_biganimal_software_20221201.pdf (“EDB Proprietary Software”), solely for the purpose of using such EDB Proprietary Software in connection with Customer’s BigAnimal Cloud Services Order.
(c) Trial Usage. If a product offering is provided for trial, demonstration, or evaluation use (“Trial”) under an Order, the Customer may use the product for the applicable Trial period for internal demonstration, test, or evaluation purposes only. EDB PROVIDES TRIALS “AS IS” AND WITHOUT WARRANTY, MAINTENANCE, SUPPORT OR INDEMNITIES. ANY CUSTOMER DATA PROVIDED BY CUSTOMER TO EDB IN CONNECTION WITH A TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME PRODUCT AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. These terms supersede any conflicting terms and conditions in this Agreement. Trial versions may be suspended or terminated at any time by EDB.
2. Registration and Customer Account.
To register to use BigAnimal, the Customer must create a username and password and provide EDB with the information requested in the registration process. The Customer shall update its information to ensure it remains accurate.
3. Professional Services.
If the Customer purchases training, consulting or professional services (“Professional Services”) for BigAnimal, Customer will provide EDB with reasonable assistance and information to facilitate scheduling and performance with EDB and will execute a statement of work specifying the Professional Services. Professional Services provided to the Customer as a part of the Professional Services (“Deliverable”) are accepted when delivered.
4. Customer Data.
(a) Data. EDB uses generally-accepted data processing practices and implements and maintains appropriate technical and organizational security measures in an effort to secure Customer data, as described below in subsections 4(b) and 4(c). The Customer will ensure that Customer data, and Customer’s use of it, complies with this Agreement and any applicable law. If Customer includes payment cardholder information in Customer’s use of BigAnimal, EDB will maintain all applicable Payment Card Industry Data Security Standard requirements. Customer shall not send readable Primary Account Number (“PAN”) data, any data that provides means to render PAN data readable, or any other data that would require EDB to obtain any certifications, license, or permission ("Relevant Data") to EDB and shall ensure that the Relevant Data is not present in any form in the environment within which EDB deploys BigAnimal. Without limitation to the foregoing, Customer shall ensure encryption of PAN data is carried out within a dedicated cardholder data environment and complies with applicable law, regulation and industry standards relating to cardholder data, including (without limitation) the Payment Card Industry Data Security Standards. EDB BigAnimal will maintain the relevant in-scope Payment Card Industry Data Security Standard controls, to the extent that they could impact the security of the Customer’s environment.
(b) Data Processing. Except with respect to a Trial Usage, the parties will comply with the Professional Data Processing Agreement (“DPA”) available at https://www.enterprisedb.com/data-protection-addendum-biganimal, which is incorporated into this Agreement.
(c) Security. Each party has obligations with respect to the security of BigAnimal. EDB will implement and maintain appropriate technical and organizational security measures, https://www.enterprisedb.com/data-protection-addendum-biganimal (Schedule 3), which is incorporated into this Agreement. The Customer is responsible for properly configuring and using BigAnimal and taking Customer’s own steps to maintain appropriate security, protection and backup of Customer’s data. The Customer will not disclose Customer User credentials to any unauthorized persons. The Customer is responsible for all activities in Customer’s account, regardless of whether undertaken by Customer, Customer’s employees or a third party (including contractors or agents). EDB and our affiliates are not responsible for unauthorized access to Customer’s account unless caused by EDB’s breach of this Agreement. Customer will contact EDB immediately if Customer believes that an unauthorized activity has occurred in Customer’s account or if Customer’s account information is lost or stolen.
5. Payment and Taxes.
(a) Fees. The applicable Fees for BigAnimal are available on the EDB website or as described by an authorized reseller or third party provider (e.g., if purchased via an online marketplace). Actual Fees for BigAnimal will vary depending on the Customer's use of BigAnimal or subscription plan purchased. EDB will charge Customer for the Fees and Customer will make timely payments through the payment method prescribed or made available, without any setoff or deduction. All paid amounts are non-refundable. Fees may be automatically charged by using the credit card processing service provided by Stripe Payments Europe, Ltd. (https://stripe.com/) ("Stripe") on EDB’s website. The Customer consents to the use of the Stripe service and to the transfer of its credit card details to Stripe. For purchases of BigAnimal subscriptions or Professional Services directly from EDB, the parties may execute an Order form or a statement of work, setting forth the agreed Fees, payable within thirty (30) days from the date of invoice. EDB may increase, add new fees or charges for BigAnimal by updating the applicable website. EDB will inform the Customer of such changes at least thirty (30) days prior to implementation. Continuous use of BigAnimal will be deemed as acceptance of the new Fees. EDB may charge Customer interest at the rate of one percent (1%) per month or the highest rate permitted by law on any late payment.
(b) Taxes. All fees and charges payable by Customer are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Customer will provide us any information EDB reasonably requests to determine whether EDB are obligated to collect VAT from Customer, including Customer VAT identification number. If the Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, the Customer is responsible for providing EDB with legally-sufficient tax exemption certificates for each taxing jurisdiction. EDB will apply the tax exemption certificates to charges under Customer’s account occurring after the date EDB receives the tax exemption certificates. If any deduction or withholding is required by law, Customer will notify us and will pay us any additional amounts necessary to ensure that the net amount that EDB receives, after any deduction and withholding, equals the amount EDB would have received if no deduction or withholding had been required. Additionally, Customer will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6. Term and Termination.
(a) Term; Termination. The term of this Agreement commences when the Customer creates an account or executes an Order for the purchase of a BigAnimal subscription, and will remain in effect for the term of the Order or until the Customer’s subscription expires or BigAnimal is terminated in accordance with this Agreement. The Customer may terminate this Agreement by terminating BigAnimal under the Customer's account. EDB may terminate Customer’s account and this Agreement, or suspend Customer’s access to BigAnimal, immediately if: (i) EDB changes the way EDB provides or if EDB discontinues BigAnimal; (ii) Customer are late in payment or otherwise in breach of this Agreement; (iii) EDB reasonably determines that Customer use of BigAnimal poses a risk to the availability, functionality or security of BigAnimal; (iv) EDB reasonably determines that Customer’s use of BigAnimal may be unlawful; or (v) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If EDB suspends Customer’s right to access or use any portion or all of BigAnimal, Customer remains responsible for all fees and charges Customer have incurred during the suspension and Customer will not be entitled to any credit or refund. EDB will use commercially reasonable efforts to restore Customer’s access to BigAnimal promptly following resolution of the cause of Customer’s suspension. EDB may suspend or terminate Customer’s access to or use of any Beta Offering at any time and for any reason.
(b) Effect of Termination. Upon termination of this Agreement (i) all Customer’s rights under this Agreement immediately terminate; and (ii) Customer remains responsible for all fees and charges Customer has incurred up to and including the date of termination. EDB has no obligation to continue to store the data contained in backup snapshots or in an Professional cluster that Customer has terminated or after termination of this Agreement.
7. Intellectual Property Rights and Ownership.
(a) Customer Data. The Customer represents and warrants to us that: (a) Customer has all rights in Customer’s data necessary to grant the rights contemplated by this Agreement; and (b) none of Customer’s data violates this Agreement, any applicable law or any third party’s intellectual property or other right.
(b) Customer may not: (i) modify, alter, tamper with, repair, or create derivative works of any software included in BigAnimal; (ii) reverse engineer, disassemble, or decompile BigAnimal or apply any other process or procedure to derive the source code of any software included in BigAnimal; (iii) access or use BigAnimal in a way intended to avoid incurring fees or exceeding usage limits or quotas; (iv) resell or sublicense BigAnimal; (v) use BigAnimal in connection with any fork or derivative work of BigAnimal; (vi) attempt to disable or circumvent any security mechanisms used by BigAnimal; (vii) use BigAnimal in a way that poses a risk to BigAnimal or any third party; (viii) disclose confidential information belonging to EDB, including product road map information; or (ix) use BigAnimal unlawfully.
(c) No Other Rights. This Agreement does not transfer any right, title or interest in any intellectual property to any party, except as expressly set forth in this Agreement. The Customer is not obligated to provide EDB with any suggestions or other feedback about BigAnimal or otherwise, but if the Customer does, EDB may use and modify this feedback without any restriction or payment.
8. No Warranty.
BigAnimal, including Beta Offerings, Support, and Professional Services, including any Deliverables, are provided on an "AS IS" and "AS AVAILABLE" basis and with no representation or warranty of any kind. Except to the extent prohibited by law, EDB disclaims any implied or statutory warranty, including any implied warranty of merchantability or fitness for a particular purpose, and any warranty arising out of any course of dealing or usage of trade.
9. Limitation of Liability.
EDB and its affiliates and licensors will not be liable to Customer for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use or data). EDB and its affiliates and licensors will not be responsible for any compensation, reimbursement or direct damages arising in connection with: (a) Customer’s inability to use BigAnimal; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments by Customer in connection with this Agreement or Customer’s use of or access to BigAnimal; or (d) any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to store any of Customer’s content or other data. EDB and its affiliates’ and licensors’ aggregate liability under this agreement will be limited to the amount the Customer actually pays EDB under this Agreement for BigAnimal that gave rise to the claim during the twelve (12) months preceding the claim.
Customer will defend, indemnify, and hold harmless EDB, EDB affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any third party claim concerning: (a) Customer’s use of BigAnimal (including any activities under the Customer’s account and use by Customer’s employees and personnel); (b) breach of this Agreement or violation of applicable law by Customer; or (c) Customer’s data or the combination of Customer’s data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of intellectual property rights. EDB will promptly notify Customer of any claim subject to this section, but our failure to promptly notify Customer will only affect Customer’s obligations to the extent that our failure materially harms Customer’s ability to defend the claim. Customer may: (a) use counsel of Customer’s own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as Customer deem appropriate, provided that Customer obtains our prior written consent before entering into any settlement.
(a) General. EDB and Customer are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. Customer will not assign this Agreement, or delegate or sublicense any of Customer’s rights under this Agreement, without our prior written consent. Our failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
(b) Entire Agreement. This Agreement incorporates any Data Processing Agreement or Business Associate Agreement and comprises the entire understanding between Customer and us relating to the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements or communications between Customer and us, whether written or verbal, regarding the subject matter of this Agreement.
(c) Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. EDB may provide any notice to Customer under this Agreement by posting a notice on the EDB website for BigAnimal or sending a message to the email address associated with Customer’s account. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when EDB sends the email, whether or not Customer actually receives the email. To give us notice under this Agreement, Customer must (1) email EDB at firstname.lastname@example.org.
(d) Choice of Law; Consent to Jurisdiction. The laws of Massachusetts, excluding any applicable conflict of laws, rules or principles, govern this Agreement and any dispute of any sort that might arise between Customer and us. Customer consent to exclusive jurisdiction and venue of Massachusetts courts. EDB may seek injunctive or other relief in any state, federal or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates', or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
(e) Force Majeure. EDB is not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
(f) Amendments. EDB may amend this Agreement at any time by posting a revised version on the site for BigAnimal or by otherwise notifying Customer by email. Amended terms of service become effective upon posting on the site for BigAnimal or as stated in our email notice message. By continuing to use BigAnimal or Professional Services after the effective date of any amendment to this Agreement, Customer agrees to be bound by the amended terms of service. Please check the site for BigAnimal regularly. EDB last amended this Agreement on the date listed at the beginning of this Agreement.