By clicking the I agree or Accept button, on the Azure Marketplace, you are agreeing to these terms and conditions. This EnterpriseDB database as a service limited use evaluation agreement ("Agreement") is entered into as of the date of acceptance (“Effective Date”) by and between EnterpriseDB Corporation, together with its affiliates and subsidiaries, with its principal place of business at 34 Crosby Drive, Suite 201, Bedford, MA 01730 ("EnterpriseDB” or “EDB” or “Supplier”) and the customer agreeing to these terms (“Customer”).
1. Customer is required to enter into an agreement with Microsoft so as to be able to access the Microsoft Azure Marketplace. That agreement is solely between Customer and Microsoft.
2. Software License. During the Term, Supplier grants to Customer a sixty (60) day (unless otherwise mutually agreed in a separate writing), royalty-free, non-exclusive license to use the database as a service offering (“Offering”) and associated documentation (“Documentation”) provided by EnterpriseDB on the Microsoft Azure Marketplace. Such use is limited to evaluation of the Offering and for non-production purposes. Customer agrees not to remove, alter or obscure any copyright and restricted right notices contained in the Offering or Documentation. Without limiting the generality of the foregoing, Customer will not: use the Offering for production work loads, nor shall it be used to store sensitive or confidential information, including personal data as defined by applicable data privacy laws; copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so; install or use any third-party software or technology in any way that would subject EDB’s intellectual property or technology to any other license terms; work around any technical limitations in the Offering or restrictions in Documentation; use an Offering for any unlawful purpose; distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to a third party.
3. Term. The Term will commence upon the Effective Date and will end upon the first of the following to occur: (a) following the Effective Date; (b) Customer ceases its use of the Offering; (c) either party gives written notice to the other party of termination following any material breach or default under this Agreement by such party that is not cured by such party within ten (10) business days after receipt of notice of such breach or default; or (d) such other date as may be agreed upon by the parties. Upon any termination of the Term pursuant to (a), (b), (c) or (d) above and upon request by EDB, Customer cease use of the Offering and will destroy information or materials relating to the Offering.
4. Ownership. No title to or ownership of any of the Offering or Documentation or any associated intellectual property rights therein is transferred to Customer under this Agreement. During the Term Customer will not remove any notice of EDB’s title or interest in the Offering or Documentation and will keep the Offering free from all liens, security interests and encumbrances. To the extent EDB provides any services hereunder, and except as otherwise specifically agreed otherwise in a mutual written agreement, EDB shall own, and Customer hereby assigns to EDB, all rights, title and interest in and to all intellectual property rights therein.
5. Confidential Information. Customer and EDB agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical, financial and business information ("Confidential Information") during the term of this Agreement and for a period of five (5) years after the termination of this Agreement; provided that to the extent the Confidential Information constitutes a trade secret(s) under law, the parties agree to protect such information for so long as it qualifies as a trade secret under applicable law. This section will not apply to: (a) any information that was in the public domain, due to no fault of receiving party, at or subsequent to the time such Confidential Information was communicated to the receiving party by the other party, (b) was rightfully in the receiving party's possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated by the other party, or (c) was developed by the receiving party or its employees, contractors or agents independently of and without reference to any Confidential Information. A disclosure of any Confidential Information in response to a valid order by a court or other governmental body or as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party will provide prompt advance written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure. The receiving party shall not use the Confidential Information of the other party for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party will protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party's Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care. The receiving party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a "need to know" such Confidential Information in order to further the purpose contained herein. The receiving party is liable for all violations of this Section by its employees, agents and consultants. Each party agrees to notify the other party in writing promptly upon discovery of any unauthorized access, disclosure, or use of the Confidential Information. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information and that the other party may seek, without waiving any other rights or remedies and without posting any bond, injunctive or equitable relief.
6. Personal Data. The parties understand that business contact details will be shared between EDB and Customer employees in order to facilitate the intent of this Agreement.
6A. Information Security. EDB will operate the offering, in all material respects, consistent with its information security program, which includes technical, organization and administrative safeguards in regards to the security, availability, and confidentiality of Custom's data within the offering.
7. Remote Assistance. EDB will, in its sole discretion, provide or arrange for remote assistance (in the English language) of the Offering. Customer will not permit anyone other than EDB or EDB’s agents to repair the Offering without the prior approval of EDB.
8. Warranty. EDB warrants that it has all corporate power and authority to enter into this Agreement. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8, THE OFFERING AND DOCUMENTATION ARE PROVIDED AS IS WHERE IS WITH NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY SECTION (SECTION 5), MISUSE, MISAPPROPRIATION, OR INFRINGEMENT OF EDB’S INTELLECTUAL PROPERTY RIGHTS, NEITHER EDB NOR CUSTOMER, NOR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES, WILL HAVE ANY LIABILITY FOR ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUSTAINED BY ANY PARTY OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY SECTION (SECTION 5), MISUSE, MISAPPROPRIATION, OR INFRINGEMENT OF ENTERPRISEDB’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED $500.
10. Assignment. Customer will not assign or transfer this Agreement, or any of its rights or obligations hereunder (including, without limitation, the right to use the Offering or Documentation), to any third party without EDB’s prior written consent. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.
11. Survival. The terms by their nature that should survive termination of this Agreement, shall survive.
12. Miscellaneous. This Agreement: (a) is governed by the laws of the Commonwealth of Massachusetts, without reference to its choice of law rules, (b) constitutes the parties’ entire agreement with respect to the subject matter hereof, (c) may be amended only by a writing signed by both EDB and Customer, and (d) does not create any partnership, joint venture or agency relationship between the parties. Customer irrevocably consents to the exclusive jurisdiction of, and venue in, the state and federal courts located in Middlesex County, Massachusetts concerning any disputes related to or arising from this Agreement. The waiver of any provision or default of this Agreement will not constitute a waiver of any other provision or default. If any provision of this Agreement is deemed to be unenforceable, the remaining provisions will remain in full force and effect. Any notices or other communication under this Agreement must be in writing and delivered in person or sent by first class mail or facsimile to the address for the recipient specified below its signature at the end of this Agreement. Either party may from time to time give the other party notice of such change in address in accordance with this paragraph 12. This Agreement may be executed by facsimile or electronic signature and in counterparts, which together will constitute one and the same agreement.
13. Export Regulations. Each party will comply with all export control laws and regulations of the United States and all other jurisdictions. A party will not and will not allow any third party to remove or export from the United States or allow the export or re-export of any part of the proprietary software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Each party agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The software is further restricted from being used for terrorist activity, or for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government.
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