Updated: August 26, 2019
EDB Postgres Cloud Database Service Agreement
This Agreement (“Agreement”) is between the person or entity agreeing to these terms ("Customer," "you" or "your") and EnterpriseDB Corporation, (“EnterpriseDB”, "EDB”, "we," "us," or "our"). If you accept this agreement on behalf of yourself, your employer or another legal entity, you represent and warrant that you have the authority to bind that entity and that you agree to this Agreement on behalf of that entity. If you cannot truthfully make these representations, do not click "Accept" below.
1. Definitions In addition to the terms defined throughout the Agreement, the following words shall have their respective definitions.
1.1 Application: means the combination of your software with the Products to create an application or service that is run only on and through the Infrastructure.
1.2 CDS Console: means the EDB utility within CDS through which you launch and manage database clusters, manage back-up and recovery of database clusters, scale the database clusters or machine type (on which the database cluster is running) and upgrade database clusters and operating system.
1.3 CDS Portal: means the EnterpriseDB web application interface used to register, gain access to the EDB Postgres Cloud Database Service.
1.4 Infrastructure: means the cloud-based hardware capacity and related cloud or web services managed by EDB and located on and provided by a third party public cloud provider.
1.5 Privacy Policy: means that privacy policy located at https://www.enterprisedb.com/privacy-policy.
1.6 Product(s): means, either EDB Postgres Advanced Server or EDB approved community PostgreSQL.
1.7 EDB Postgres Cloud Database Service or “CDS” or “EDB Cloud Database Service”: means the combination of the Products, Application(s), Infrastructure, CDS Console, CDS Portal, and Support.
1.8 Subscription: means the license term to the EDB Postgres Cloud Database Service.
2. Right to Use and Restrictions
2.1 Subject to your compliance with this Agreement and the instructions related to the EDB Postgres Cloud Database Service, you are authorized, during the Subscription period, to:
2.1.1 Access and use the CDS Console to provision the purchased database instances and Product clusters as you deem necessary to run your Application and/or develop and test your Application(s) within and through the Infrastructure.
2.1.2 Download, install and use EDB Postgres Enterprise Manager (“Postgres Enterprise Manager® ” or “PEM”) for the sole purpose of using it for monitoring and managing of the Product provisioned through CDS. This limited use right allows you to install the PEM Server on your own system for the sole purpose of connecting PEM Server to PEM Agents, which are enabled on Product instances provisioned through CDS Console.
2.1.3 Use EnterpriseDB’s JDBC, ODBC, .NET and OCL database drivers (the "Drivers") for the sole purpose of connecting to Product clusters managed as part of the CDS. This limited use right includes the right to install the Drivers on customer’s systems, but for the sole purpose of connecting to properly contracted EDB Postgres database clusters managed as part of the CDS.
2.2 Components of EDB CDS contain open source software. Such open source software is governed by its applicable open source software license and not this Agreement.
2.3 EnterpriseDB may, from time to time, offer special terms or pricing programs for the Products or EDB Postgres Cloud Database Service (the “Special Programs”). EnterpriseDB shall have the right to stop accepting any applications for any Special Programs or discontinue the offering of any Special Programs without notifying you. You must agree to any terms and conditions for the Special Programs if you choose to participate in such.
2.4 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Product(s), CDS Console, CDS Portal, or any part thereof, unless this is expressly permitted or required by law, and where permissible or required by law, you agree to inform EnterpriseDB in advance, whereupon you must receive an acknowledgement from EnterpriseDB prior to proceeding with said actions; (b) attempt to disable or circumvent any security mechanisms used by the Products, CDS Console, CDS Portal, and Infrastructure or any Application; (c) use the CDS Console, CDS Portal, or Products to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DDoS attacks or authorize violates applicable law; or (d) upload or otherwise process any malicious content to or through the EDB Cloud Database Service.
2.5 You must comply with the relevant technical documentation applicable to the CDS Console and Products as posted/provided and updated by EnterpriseDB from time to time on the EDB Postgres Cloud Database Service.
2.6 You are solely responsible for creation, use and processing of personal data (defined in Section 6.1). You will secure and maintain all rights in personal data necessary for EnterpriseDB to provide the EDB Cloud Database Service to you without violating the rights of any third party or otherwise obligating EnterpriseDB to you or to any third party. EnterpriseDB does not and will not assume any obligations with respect to personal data or to Customer’s use of the EDB Postgres Cloud Database Service other than as expressly set forth in this Agreement or as required by applicable law. You agree that you are solely responsible for the Applications that you develop and use with or through CDS. EnterpriseDB disclaims and that parties agree that EnterpriseDB shall have no liability whatsoever for your Applications or their use. In fact, you agree to fully defend and indemnify EnterpriseDB for any third party claims resulting from your Application.
2.7 Suggestions. EnterpriseDB owns all rights, title and interest in and to any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the operation or use of the EDB Postgres Cloud Database Service. You agree to execute whatever documents are necessary in order to perfect such interest in EDB.
2.8 From time to time EnterpriseDB may invite you to try, at no charge, EnterpriseDB products or services that are not generally available to EnterpriseDB customers or the market ("Non-GA Services"). You may accept or decline any such trial in your sole discretion. Any Non-GA Services will be designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA Services are provided "AS IS" with no express or implied warranty. EnterpriseDB may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
2.9 From time to time, as specified and order, by you, through CDS, you may be permitted to use CDS for a singular period for evaluation purposes. Such evaluation period will be so specified at the time of provisioning/ordering within CDS. It should be noted that upon the conclusion of your evaluation period, your free instance(s) and data contained therein will be permanently deleted. Furthermore, your free use of the aforementioned, is at your sole and complete risk. EnterpriseDB provides such free trial to EDB Cloud Database Service “AS IS” with no warranties, support and liability of any kind. That being said, you may use the self-help tools available in https://postgresrocks.enterprisedb.com/. EnterpriseDB will assist in such needs as time permits.
3. Your Account and Use of the EDB Postgres Cloud Database Service
3.1 In order to use the EDB Postgres Cloud Database Service, you must provide certain information about yourself to create an account (“Account”). You represent and warrant that: (a) you unambiguously consent to the provision of such information and EnterpriseDB’s use of such information in furtherance of this Agreement and keeping you informed of EnterpriseDB products and services; (b) all required account information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. We will not be liable for any loss or damage caused by any unauthorized use of your Account. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify EnterpriseDB immediately.
3.2 You agree not to (a) access (or attempt to access) the administrative interface of the EDB Postgres Cloud Database Service by any means other than through the interface that is provided by EnterpriseDB to you, the customer, in connection with the EDB Cloud Database Service, unless you have been specifically allowed to do so in a formal agreement with EDB, or (b) engage in any activity that interferes with or disrupts the EDB Cloud Database Service (or the servers, networks, and software which are connected to the EDB Cloud Database Service).
3.3 You may sign up for a Subscription to the EDB Cloud Database Service by following the directions on the website and/or CDS Portal associated with the EDB Cloud Database Service. Once you order the EDB Cloud Database Service, your Subscription to the EDB Cloud Database Service will continue until you cancel your EDB Cloud Database Service, or if your account is terminated. Customers are allowed to cancel at any time and EnterpriseDB will prorate payment based on the point in the month that you reached before cancelling your Subscription. Upon canceling, you will be billed for the prorated amount immediately and your account will be terminated and the Application and all applicable data will be permanently deleted from the EDB Cloud Database Service on the seventh day following termination.
3.4 You may delete your Account at any time, for any reason, by following the instructions on the website, provided however, you will be responsible for charges through the end of the month within which you terminate. EnterpriseDB may suspend or terminate your Account at any time in order to reasonably protect the interests of EnterpriseDB.
4. Fees for the Use of the EDB Cloud Database Service
4.1 EnterpriseDB has two billing methodologies:
4.1.1 Monthly Pay-as-you-go. This option requires a valid credit card. If you register and activate the EDB Cloud Database Service as a pay-as-you-go Subscription, you agree that EnterpriseDB may charge your credit card $1 in order to validate the card. When you provision the Product, configure the EDB Cloud Database Service, you will be charged for (i) CDS cost per unit-of-measure for this service, plus (ii) variable costs relating to configuration and use of the Infrastructure. On your monthly anniversary, your credit card will be charged for your actual usage of (i) and (ii) above relating to the prior monthly usage.
4.1.2 Reserved CDS instances: You may purchase a Subscription for either one or three years in advance, based upon an initial unit of measure for CDS. EnterpriseDB will either: (i) charge your credit card for the charges related to such Subscription or (ii) invoice you for the Subscription, whereupon you must pay within 30 days or the invoice date. Note that EnterpriseDB reserves the right in its sole discretion to choose whether we will allow you to be invoiced. In either case of this Section 4.1.2 (i) and 4.1.2(ii), you will, on a monthly basis, be charged the actual variable costs related to the configuration and use of the Infrastructure. In the event, during the Subscription period, you increase the unit of measure of CDS, your credit card will be immediately charged for such increase or you will be invoiced (if so approved for invoicing) for such increase.
4.1.2.1 Reserved CDS Instance Values and Concurrency: Each purchased Reserved CDS instance allows for up to 730 hours of usage per monthly cycle. Usage of CDS instances during the period in which the purchase is valid is metered, and does not allow for concurrency of the same unit. As an example – a customer purchases one Reserved CDS m5.4xlarge for the Amazon AWS Region US-East. They then use two m5.4xlarge instances simultaneously for 365 hours each in a given monthly billing period. Only one of these two instances will count toward the Reserved CDS unit previously purchased; the subsequent instance will be charged under the Pay-as-you-go pricing.
4.2 In its discretion, EnterpriseDB may change the list pricing for the EDB Cloud Database Services by updating the EDB Cloud Database Services fees on the CDS Portal. EnterpriseDB will provide notice of any fee changes to the email address that you provide with your account. The fees payable by you will increase or decrease on the date specified on the notice, either on your next monthly bill or on the renewal date of your pre-buy contract term for Reserved CDS Instances. On the anniversary of your registration and activation of the EDB Cloud Database Service, EnterpriseDB (or its agent) will automatically bill your account or the credit card you submitted when ordering the EDB Cloud Database Service, until you cancel the EDB Cloud Database Service or the EDB Cloud Database Service is otherwise terminated. All payments are non-refundable. You hereby authorize EnterpriseDB to bill your credit card or invoice you as described above. If any fee cannot be charged to your credit card for any reason, EnterpriseDB may provide you, via email, notice of such non-payment and a link for you to update your payment information. If non-payment is not remedied within five (5) days after receiving such notice, then EnterpriseDB may terminate the EDB Cloud Database Service.
4.3 Support Fees. Additionally, when you register and configure the EDB Cloud Database Service, the default technical support for the Product, CDS Console and CDS Portal is basic support (“Basic Support”), but, for an additional charge, you may upgrade Basic Support to Enterprise Support. See Section 7.4 for a description of Basic Support and Enterprise Support and any additional fees related thereto.
4.4 Late payment fees may apply. Interest on late payments, shall be, 1% per month, from the date such fee was late. All amounts are exclusive of applicable taxes, deduction, withholdings, levies, customs or other duties, or fees imposed by any authorities resulting from your acquisitions under this Agreement. You will pay all applicable sales, use, and other such taxes related to the EDB Cloud Database Service provided hereunder, (excluding any taxes imposed or based on Company’s income) or provide EnterpriseDB evidence of exemption from such taxes.
4.5 You acknowledge and agree that any credit card and related billing and payment information used to pay for the EDB Cloud Database Service is provided to EnterpriseDB’s payment processor and EnterpriseDB has no access to such information. EnterpriseDB encourages you to review the privacy policy applicable to the payment processor.
4.6 You may not create multiple accounts to simulate or act as a single account or otherwise access the EDB Cloud Database Service in a manner intended to avoid incurring fees.
5. Use of the EDB Cloud Database Service
5.1 EDB reserves the right to monitor your purchase or use of the EDB Cloud Database Service any time as needed to verify your compliance with the Agreement and our Privacy Policy. You agree that you shall not block or interfere with our monitoring.
5.2 As a condition of your purchase and/or use of the EDB Cloud Database Service, you agree that you will comply with all applicable laws, rules and regulations for using the EDB Cloud Database Service (including without limitation, any applicable data protection, import, re-import, export, and re-export control laws, including any applicable license requirements, and international or country-specific sanctions programs). If EnterpriseDB has reason to believe that any of your conduct violates the law, infringes or misappropriates the rights of any third party or is otherwise deceptive, fraudulent or misleading, EnterpriseDB may at its sole discretion notify you of our awareness of such circumstances and may at its sole discretion take any relevant enforcement actions against you as deemed adequate and necessary in light of the circumstances, including but not limited to, requesting you to remove any unlawful content, disabling, suspending or terminating your right to use any EDB Cloud Database Service. Notwithstanding any of the foregoing provisions, EnterpriseDB shall have the right to directly remove any content on the EDB Cloud Database Service that may be unlawful or may disrupt, threaten, or damage the operation and functioning of the EDB Cloud Database Service or other users of the EDB Cloud Database Service.
6. Privacy
6.1 Data Processing. For the purposes of this Section, the terms "controller", "data subjects", "personal data", "processor", "processing", and “supervisory authority” shall have the meaning given to them by the European Union Regulation 2016/679 (“GDPR”). You instruct EDB, and EDB agrees, to process (as a processor) personal data provided due to your use of our EDB Cloud Database Services on your behalf. You are the controller of such personal data. EDB will process personal data only on and in accordance with your instructions (unless otherwise required by law) and solely to the extent necessary for fulfillment of its obligations under the Agreement.
6.2 EDB uses Amazon Web Services (AWS) to host CDS, therefore you should ensure that you are in agreement with the security practices of Amazon with regards to AWS. These can be reviewed on Amazon’s website, which are currently located at https://aws.amazon.com/compliance/data-privacy-faq/. Please note this link may change at any time based on Amazon’s sole control and discretion. More importantly, the protection of the contents of your database contents is largely predicated on the protections you apply to the database, therefore EDB is not responsible for the decisions that you choose to make or not make.
6.3 EDB’s processing will be pursuant to the ‘EU Standard Contractual Clauses’ for the transfer of personal data to processors established in third countries within the meaning of Article 46(2), c and d, of the GDPR.
6.4 EDB will direct all of its employees and agents to process personal data in accordance with Section 10.1 (Confidentiality).
6.5 Retention periods. See Sections 2.12 and 3.3.
6.6 Technical and organizational security measures. To assure the confidentiality, integrity and availability of the personal data that EDB processes or to which it has access, it shall take reasonably appropriate and effective technical and organizational security measures which, taking into account the state-of-the -art technology and the costs involved, are consistent with the nature of the personal data to be processed, in order to protect the personal data against loss, unauthorized disclosure or any form of unlawful processing and also to guarantee the (timely) availability of the personal data. EnterpriseDB and AWS technical and organizational security measures include:
a. Measures to ensure that only authorized personnel have access to the personal data for the defined purposes;
b. Measures whereby EDB gives its personnel and sub-processors access only to personal data via user access rights, the use of which shall be adequately logged and that such access right shall provide access only to personal data to which the person concerned needs access;
c. Measures to protect the personal data against accidental or unlawful storage, processing, access or disclosure. Note that EDB’s infrastructure is separate from that of AWS and therefore we will only ensure measures related to EDB’s infrastructure and you are responsible to ensure you deploy appropriate protective measures through AWS;
d. Measures to guarantee the timely availability of the personal data to you. Note that you have control of your personal data within CDS, therefore you are solely responsible for ensuring that you are able to respond to your customer’s requests for access to his/her personal data. EDB will provide assistance where applicable and appropriate in its sole discretion, but it is ultimately your responsibility;
e. Measures to ensure that personal data are logically processed separately from personal data that EDB processes for itself or for third parties
6.7 EDB will reasonably cooperate (at its discretion), at your cost, to assist you in complying with your legal obligations under applicable data security laws, rules and regulations.
6.8 Below, we set out certain information regarding the details of what personal data we may process. We may make reasonable amendments to the following list by providing written notice to you from time to time as EDB reasonably considers necessary to meet its legal obligations. During your Subscription to CDS, you may provide us with your employees or other representatives contact details (e.g., name, address, company name, email address, physical address, phone number, etc.). In addition, you may include personal data within CDS. We do not know, nor control such personal data, therefore it is up to you to ensure that such personal data is protected properly as set forth herein.
6.9 EDB will notify Company without undue delay upon becoming aware of a personal data breach affecting your personal data, providing Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the personal data breach under GDPR.
7. Consulting & Support
7.1 Consulting and Training Services. To the extent you want to purchase consulting services or custom training services from EnterpriseDB, EnterpriseDB will provide the services and resulting deliverables to you under a mutually agreed upon Statement of Work.
7.2 Ownership. EnterpriseDB and its licensors retain all right, title and interest in and to the Service and all maintenance support deliverables, and all modifications and enhancements thereto, including all intellectual property rights that are not expressly granted in this Agreement. Except as otherwise set forth in a Statement of Work, EnterpriseDB shall own all right, title and interest in and to all services deliverables, and EnterpriseDB hereby grants to Customer a nonexclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, and perform any such service deliverables in association with the Service during Customer’s valid Subscription. EnterpriseDB 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. Customer hereby assigns, all right, title, and interest in and to all modifications, enhancements, customizations, source code, acquired or developed during the performance of the maintenance support or services under this Agreement, and under any Statement of Work.
7.3 Availability: We will use commercially reasonable efforts to make the Infrastructure, Products, CDS Console, and CDS Portal available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which you are given notice via the Service, or (b) any unavailability caused by circumstances beyond EnterpriseDB’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving EnterpriseDB employees), Internet service provider failures or delays, or denial of service attacks.
7.4 Technical Support: EnterpriseDB provides two levels of technical support related to the Infrastructure, Products, CDS Console, and CDS Portal, which are defined in the chart below. Basic Support is part of the EDB Postgres Cloud Database Service at no cost. Enterprise Support is a separately charged option that will be priced upon selection.
|
Support Level |
Basic |
Enterprise |
|
Use cases |
Trial, development, non-critical test environments |
Production workloads or critical test or staging environments |
|
Support Hours |
8am - 6pm EST (Monday - Friday) |
24 x 7 |
|
Support Modes |
PostgresRocks.com / Email / Customer Portal |
PostgresRocks.com / Phone / Email / Customer Portal |
|
Initial Response Goal |
Same business day |
30 minute response time |
|
# Users Entitled |
1 - Account Admin only |
Unlimited |
|
Cost |
Included in CDS Service |
Tiered fee structure based on usage of the service and related resources. You will be billed the greater of $200.00 USD per month or the following price tiers based on monthly CDS billing:
The cost of Enterprise Support, where a customer has purchased either Reserved CDS solely or Reserved CDS and On-Demand instances, will be calculated monthly to also include the price of the Reserved CDS instances normalized over the term of those instances. As an example, if a user purchases Reserved CDS instances at a cost of $72,000.00 USD for a three-year term, the cost of Enterprise Support would be the greater of (($72,000 full term / 36 months) + any additional monthly charges, such as charges for instances used in excess of purchased quantities, or for traffic and storage)* 10%, or $200.00, per month for these instances. The minimum unit of one month of Enterprise Support will apply to Reserved CDS instances as well. |
8. DISCLAIMER. ENTERPRISEDB PROVIDES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. ENTERPRISEDB DOES NOT REPRESENT OR WARRANT THAT THE HOSTED SYSTEM OR SOFTWARE WILL OPERATE UNINTERRUPTED, ERROR FREE OR BE SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER DATA, CONFIDENTIAL INFORMATION AND OTHER PROPERTY.
9. Limitations of Liability Notwithstanding any other clause in this Agreement, in no event will EnterpriseDB 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, arising from or in connection with this Agreement, even if EnterpriseDB has been advised of, or should have reasonably been aware of the possibility of such loss. Notwithstanding any other clause in this Agreement, EnterpriseDB’s total aggregate liability arising from or in connection with this Agreement, will be limited to an amount not to exceed the amount paid during the twelve (12) month period preceding the date of the claim, even if EnterpriseDB has been advised of, or should have reasonably been aware of the possibility of such loss. The foregoing limitations, exclusions and disclaimers are an allocation of the risk between the parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.
10. Miscellaneous.
10.1 Confidential Information. Customer and EnterpriseDB 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 7 by its employees 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.
10.2 Entire Agreement. This Agreement and any applicable Statement(s) of Work, constitute the entire agreement between the parties concerning the subject matter hereof. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
10.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
10.4 Force Majeure. Neither party will be liable or deemed to be in breach for any delay or failure in performance of this Agreement (except for the payment of money) or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.
10.5 Governing Law and Venue. This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard for its choice of law provisions. The parties specifically agree that the U.N. Convention on the International Sale of Goods, and the Uniform Computer Information Transactions Act (“UCITA”) shall not apply. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of the Commonwealth of Massachusetts, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
10.6 Export Regulations. Customer will comply fully with all export control laws and regulations of the United States and all other jurisdictions. Customer shall not and shall 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 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. Customer 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 EDB Cloud Database Service 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.
10.7 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, provided that no consent will be necessary if this Agreement is being assigned by a party upon notice to the other party to: (a) an Affiliate; or (b) an acquirer of all or substantially all of the party's assets (or the assets of the party's applicable business unit), whether by merger, sale or exchange of stock, sale of assets or otherwise. This Agreement binds the parties and their respective permitted assigns.
10.8 Independent Contractor. The relationship of the parties is that of independent contractors. Neither party will be deemed to be the legal representative of the other nor will it have any right to bind the other party to any contract or commitment. This Agreement does not, and will not, be construed to create an employer-employee, agency, joint venture or partnership relationship between the parties. Each party agrees to assume complete responsibility for its own employees regarding federal or state laws, including employers' liability and tax withholding, worker's compensation, social security, unemployment insurance, and OSHA requirements.
10.9 Notice. All notices and other communications herein permitted or required under this Agreement will be sent by postage prepaid, via registered or certified mail or overnight courier, return receipt requested, or delivered personally to the parties at their respective addresses, or to such other address as either party will give to the other party in the manner provided herein for giving notice. All notices to EnterpriseDB shall be sent to the attention of Legal Department with a copy sent to legal-notices@enterprisedb.com. Notice will be considered given upon receipt.
10.10 You acknowledge and agree that EnterpriseDB may amend this Agreement at any time by posting the relevant amended and restated Terms in the EDB Cloud Database Service. By continuing to use the EDB Cloud Database Services after the posting of the amended and restated Agreement, you agree that the amended Agreement will apply to you.