These BigAnimal Trial Agreement Terms (the “Trial Agreement”) is between you (“you” or “Customer”) and EnterpriseDB Corporation (“EDB”), for a free trial, under which you are provisioning a cluster of BigAnimal (defined below) for a time limited period of 14-days. At the end of the trial period, the cluster will automatically terminate. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. Capitalized terms have the meanings given under “Definitions.”
I. Definitions.
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act.
“EDB’s Cloud Environment” means the managed cloud virtual machines and network where the BigAnimal service is deployed by EDB.
“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Customer Content” means all content or data provided by or on behalf of Customer by or through BigAnimal.
“Documentation” means all user or operational manuals EDB makes available as part of BigAnimal.
“EDB Software” means EDB database management software program(s) provided as part of BigAnimal.
“End User” means any authorized person Customer permits to use or access an Offering.
“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to the recipient's Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g.,feature lists) for future products.
“BigAnimal” means the EDB database software as a service offering made available by EDB.
“Personal Data” means any information that relates to an identified or identifiable natural person and which is protected as "personal data", "personal information" or "personally identifiable information" under applicable data protection laws.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“Trial Period” means Customer can provision a cluster for up to 14 days free of charge.
II. License to Offerings.
a. License grant. Customer may access and use BigAnimal through EDB’s Cloud Environment for a trial period of 14 days (the “Trial Period”). This license is solely for Customer’s own internal business use and is non-transferable except as expressly permitted under this Agreement.
b. Duration of licenses. Trial Agreement licenses are granted for limited use for the Trial Period and expire at the end of the Trial Period.
c. Ownership. Except for the rights, permissions, and licenses explicitly granted pursuant this Trial Agreement, all right, title and interest in and to the intellectual property and proprietary rights of whatever nature in BigAnimal and EDB Software, including their interfaces, extensions and derivative works, are and shall remain the exclusive property of EDB and/or its suppliers. EDB and its suppliers reserve all rights not expressly granted in this Agreement.
d. Feedback. You are not required to give EDB any Feedback, but if you do provide EDB Feedback, you grant EDB and our Affiliates a worldwide, perpetual, irrevocable, fully paid and royalty-free right to fully exploit, use and incorporate into our products, services or software any Feedback you provide in our sole discretion.
e. Restrictions. Except as expressly permitted in this Trial Agreement, Customer must not, nor permit a third party to (and is not licensed to):
1. use BigAnimal in manner that violates, or causes EDB to violate, any data privacy law, data export laws, or other laws related to the use, sharing, storage or processing of personal data,
2. use BigAnimal in a manner that violates any third party intellectual property or other proprietary rights,
3. reverse engineer, disassemble, or use other means to attempt to discover any undisclosed source code of EDB or the underlying ideas, algorithms or trade secrets therein.
4. use BigAnimal in a competitive manner.
5. perform benchmarks or comparative tests or evaluations (each, a “Benchmark”) of BigAnimal unless you perform, disclose, or direct or permit any third party to perform or disclose, any Benchmark of BigAnimal, you (i) include in any disclosure, and disclose to us, all information necessary to replicate such Benchmark, and (ii) agree that we may perform and disclose the results of Benchmarks of your products or services, irrespective of any restrictions on Benchmarks in the terms governing your products or services.
f. Updates. BigAnimal is updated from time to time due to its inherent nature. EDB reserves the right to make changes to BigAnimal at any.
III. Consumer Content
a. Customer hereby grants to EDB a limited, non-exclusive, royalty-free, worldwide right and license to access, use, display, host, copy, process and transmit any and all Customer Content to provide and improve BigAnimal in accordance with this Agreement. EDB will utilize Customer’s business contact details for purposes of administering this Trial Agreement and consistent with EDB’s privacy policy, located at https://www.enterprisedb.com/privacy-policy.
b. Customer represents and warrants and shall ensure that it has the right to provide the above right and license and that neither the Customer Content itself nor its use by EDB for purposes of this Trial Agreement shall violate any applicable law or infringe, misappropriate or otherwise violate any rights of any third party, including intellectual property rights, privacy rights and other rights under contract or law.
c. Customer represents and warrants that it shall not transmit to EDB, in connection with the BigAnimal, Trial Agreement any Customer Content that includes any Confidential Information or Personal Data that constitutes: (a) employment, genetic, biometric or health information (including “protected health information" as defined under the Health Insurance Portability and Accountability Act) or similar laws; (b) "personal information" about individuals under the age of thirteen (13) as such term is defined under the Children's Online Privacy Protection Act or similar law; (c) government issued identification numbers, including social security numbers, driver's license numbers and other state-issued identification numbers; (d) cardholder or sensitive authentication data, as those terms are defined in the Payment Card Industry Data Security Standards, or financial account information, including bank account numbers (other than such data necessary to pay for any amounts payable to EDB in connection with the Cloud Services); (e) the combination of a username or email address along with a password or security question and answer that would permit access to an online account (except for Registration Information); (f) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (g) personal data relating to criminal history; or (h) any other information or combinations of information that falls within the definition of “special categories of data” under European Data Protection Laws or any other Applicable Data Protection Laws. If any such Customer Content is inadvertently transmitted to EDB, Customer acknowledges and agrees that it shall cooperate with EDB to securely delete such Customer Content.
IV. Confidentiality.
a. Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to: business, financial and technical information, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed without use of or reference to Confidential Information; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
b. Protection of Confidential Information. Customer will take reasonable steps to protect EDB’s Confidential Information and will use EDB’s Confidential Information only for purposes of the parties’ business relationship. Customer will not disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis (to administer the purpose of this Agreement) under nondisclosure obligations at least as protective as this Trial Agreement. Customer remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify EDB.
c. Disclosure required by law. Customer may disclose EDB’s Confidential Information if required by law, but only after it notifies EDB (if legally permissible) to enable EDB to seek a protective order.
d. Duration of confidentiality obligation. These obligations apply for a period of five years after Customer receives the Confidential Information.
V. Support Services.
EDB will use commercially reasonable efforts to deliver a reasonable support experience to the trial user during the Trial Period. However, EDB has no obligation to provide any technical support.
VI. Customer Obligations.
a. Customer shall ensure that any End Users it authorizes to use BigAnimal comply with this Agreement at all times and use BigAnimal only in accordance with the terms of this Trial Agreement.
b. Customer shall be responsible for ensuring that its authorized End Users maintain their user names and passwords diligently and do not disclose them to third parties.
c. The Customer is solely responsible for the successful completion, integrity and restorability of backups.
VII. Representation and Warranty.
DISCLAIMER OF REPRESENTATIONS AND WARRANTY. EDB DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES. BIGANIMAL AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND. EDB AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, CORRECTNESS, RELIABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED. EDB AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
VIII. Limitation of Liability.
Aggregate Liability. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS TRIAL AGREEMENT, THE AGGREGATE LIABILITY OF EDB FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS TRIAL AGREEMENT, WETHER IN ACTIONS BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER EDB HAS BEEN NOTIFIED OF THE POSSIBILITY THEROF, SHALL BE LIMITED TO THE AMOUNT OF TWENTY-FIVE (25) U.S. DOLLARS.
IX. Pricing and Payment.
Customer’s free trial will be available at no cost from EDB. EDB reserves the right to revoke your access to BigAnimal at its sole discretion.
X. Term and Termination.
a. Term. This Trial Agreement is effective for the Trial Period.
b. Termination. This Trial Agreement will terminate automatically at the end of the Trial Period.
c. Effect of Termination. Upon termination this Trial Agreement, EDB will delete the applicable customer data in accordance with its policies, all rights granted to Customer under this Trial Agreement will immediately terminate and Customer will have no further rights to continue trial rights licensed hereunder.
XI. Miscellaneous.
a. Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement.
b. Amendments. Unless otherwise agreed in a writing signed by both parties, EDB will not change the terms of this Agreement, including privacy terms, during the term of this Agreement.
c. Assignment. Neither Party may assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without the other Party’s prior written consent, which will not be unreasonably withheld. The foregoing notwithstanding, EDB will have the right by operation of law or assignment to transfer this Agreement to a new parent through acquisition, provided the new parent assumes this Agreement.
d. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
e. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
f. No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
g. Export Regulations. Each Party shall comply with the export, sanctions, import or other trade laws and regulations of the United States and any other applicable jurisdiction (the “Trade Laws”) with respect to the offering of the software or any direct product thereof or any of the services contemplated by this Agreement (collectively, the “Services”). Each Party represents and warrants that neither it nor any of its officers or directors is identified on any U.S. government list of persons or entities prohibited from receiving exports or otherwise subject to sanctions, and no such sanctioned party has an interest in the Party. Neither Party shall, directly or indirectly, permit any other party to access or use any of the Services in violation of any Trade Laws. Without limiting the generality of the foregoing, neither Party shall engage in or permit the export, re-export, or transfer (in country) of any part of BigAnimal: (i) to any jurisdiction that is subject to comprehensive U.S. sanctions or any party ordinarily resident in such jurisdiction; (ii) to any party identified on (or controlled by one or more parties identified on) any U.S. government restricted party list, including without limitation the U.S. Commerce Department Bureau of Industry and Security Denied Persons List, Entity List, and Unverified List or The U.S. Treasury Department Office of Foreign Assets Control list of Specially Designated Nationals; or (iii) to any jurisdiction or party to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval without first obtaining such license or approval.
h. Anti-Corruption. All business is to be conducted fairly. EDB does not tolerate corruption, bribery, or kickbacks of any kind. Customers are to comply with applicable Anti-Corruption Laws of the various countries and jurisdictions in which they conduct business, and will take “reasonable measures” to ensure that the third parties they engage will likewise refrain from such activity.
i. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to EDB must be sent to General Counsel at 34 Crosby Drive, Suite 201, Bedford, MA 01730 and legal-notices@enterprisedb.com. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. EDB may send notices and other information to Customer by email or other electronic form.
j. Applicable law. This Agreement is governed by the laws of the Commonwealth of Massachusetts, U.S.A., excluding its conflicts of law rules. The parties expressly agree that the UN Convention for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Middlesex County, Massachusetts and the parties hereby irrevocably consent to the personal jurisdiction and venue there.
k. Government Rights. This is applicable for Government sales only. Our software and associated documentation are "commercial computer software" and “commercial computer software documentation”, respectively, as those terms are described in DFAR 252.227-7014(a). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
l. Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to effect the parties’ intent.
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