EnterpriseDB Perpetual License Agreement
IMPORTANT - READ CAREFULLY
This EnterpriseDB Perpetual License Agreement ("Agreement") is a legal document between you ("Customer") and EnterpriseDB Corporation or one of its affiliated entities ("EnterpriseDB"). It is important that you read this document before using or purchasing the Software. By purchasing or using the Software, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree with the terms and conditions of this Agreement, Customer is not licensed to use the Software, and Customer must destroy any downloaded copies of the Software in its possession or control. This Agreement is effective ("Effective Date") on the effective date of the applicable Order Form. Upon execution of an Order Form, this Agreement will govern the terms, conditions and restrictions of Customer’s purchase of additional Software. Capitalized terms have the meanings set forth in the sections in which they are used and in Section 14 below.
- License. Subject to the terms and conditions of this Agreement, EnterpriseDB grants to Customer a non-exclusive, non-transferable, perpetual right and license: (a) to install the Software on the number of Units of Measure ("UOM") assigned on the applicable Order Form; and (b) to use the Software for Customer's internal business operations. UOM is defined as the units of measure designated on the applicable Order Form and if no such units are designated, UOM shall mean "uniCore" which means either of the following: (i) a processor core in a single or multi-core processor chip or (ii) a virtual core processor (“Virtual Core” also known as a “vCore”, “virtual CPU” or “vCPU”) used to assign computing resources to a virtual machine. In addition, the license granted in this Section 1 will be further limited to by any other usage restrictions set forth in the applicable Order Form (“Other Restrictions”), including without limitation any usage restrictions with respect to use of the Software only as part of a combined solution created by the EnterpriseDB reseller or distributor, if applicable.
- License Restrictions. Customer agrees not to, itself, through or allow, any parent, subsidiary, affiliate, agent or other third party: (a) copy or use the Software in any manner except as expressly permitted in this Agreement; (b) transfer, sell, rent, lease, distribute, or sublicense the Software; (c) allow access or permit use of the Software by any third party except authorized third party contractors solely to provide services to Customer, provided that Customer shall be liable for all acts and omissions of such authorized third party contractors; (d) circumvent any license keys that may be embedded within the Software; (e) modify or create derivative works based upon the Software; (f) use the Software for providing time-sharing services, service bureau services or as part of an application services provider or software as a service offering; (g) reverse engineer, disassemble, decompile the Software; (h) alter or remove any proprietary notices in the Software; or (i) make available to any third party any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of EnterpriseDB. Customer may make one additional copy of the Software for non-production, backup or archival purposes.
- Support. EnterpriseDB will provide Customer with no support for the Software; however, the applicable EnterpriseDB authorized reseller or distributor may provide such support if mutually agreed between Customer and such reseller or distributor. Once the reseller or distributor is no longer authorized by EnterpriseDB to provide support for the Software, EnterpriseDB will provide such support to Customer for a negotiated fee.
- Open Source Programs. The Software and Deliverables may be distributed with open source software programs as described in the licenses directory of the Software and Deliverables. These open source programs are distributed under the applicable open source licenses and not this Agreement.
- 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 5 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.
- Ownership. EnterpriseDB and its licensors retain all right, title and interest in and to the Software, and all modifications and enhancements thereto, including all intellectual property rights that are not expressly granted in this Agreement.
- Verification. Customer acknowledges that the Software includes functionality that notifies Customer of the availability of updates and collects and reports certain information about the use of the Software to EnterpriseDB. Customer agrees to report its use of the Software and submit the results in a format specified and provided by EnterpriseDB, using tools or assistance provided by EnterpriseDB. Customer shall submit annual reports commencing one (1) year after the effective date of the applicable Order Form. Customer further agrees to notify EnterpriseDB when use of the Software results in non-compliance of Customer's license rights. Customer agrees to pay to the applicable EnterpriseDB authorized reseller or distributor within thirty (30) days of written notification any fees applicable to Customer's continuing use of the Software in excess of Customer's license rights or Customer shall submit in writing confirmation that all non-compliant Software was uninstalled. The reports shall include all active licenses specified in all Order Forms executed by Customer. Customer agrees that EnterpriseDB shall not be responsible for any costs incurred in cooperating with the usage reports. For reporting purposes, the number of required licenses for use under this Agreement shall be equal to the total of all the UOM where the Software is installed or running in accordance with this Agreement as follows: (a) in non-virtualized environments each multicore chip with "n" processor cores shall be counted as "n" uniCores, (b) in each individually virtualized machine uniCores shall be counted as the lesser of the count of physical cores in each machine or the count of Virtual Cores assigned to virtual machines running on each machine, and (c) in virtualized infrastructures where the physical core count cannot be accurately determined, uniCores shall be the total count of all Virtual Cores assigned to all virtual machines across the infrastructure. Customer will provide EnterpriseDB with documentation concerning its use of the Software within thirty (30) days after written request. In addition, upon at least thirty (30) days prior written notice, EnterpriseDB or its designated agent may inspect and review Customer's facilities and records in order to verify Customer's compliance with this Agreement in the event that Customer’s reports or behavior indicate non-compliance with this Agreement. Customer agrees to cooperate with EnterpriseDB in completing the investigation and provide reasonable assistance and access to information. Any such investigations shall not unreasonably interfere with Customer's normal business operations.
- Indemnification. If a third party claim is brought against Customer claiming that Software provided under this Agreement infringes such third party’s U.S. intellectual property right ("Claim"), EnterpriseDB will defend the Claim and indemnify Customer from the resulting costs and damages awarded by a court of competent jurisdiction against Customer or agreed in settlement by EnterpriseDB. If Customer's use of the Software hereunder is enjoined due to a Claim, then EnterpriseDB may, at its sole option and expense: (a) procure for Customer the right to continue using the Software under the terms of this Agreement; (b) replace or modify the 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 thereof, the corresponding licenses are terminated and EnterpriseDB shall refund the amount of any prepaid but unused fees that were paid to EnterpriseDB’s authorized reseller or distributor for the infringing Software. EnterpriseDB's obligations under this Section 8 are contingent upon: (i) Customer giving prompt written notice to EnterpriseDB of any Claim; (ii) Customer allowing EnterpriseDB to control the defense and any related settlement of any Claim; and (c) Customer furnishing EnterpriseDB with reasonable assistance in the defense of any Claim. EnterpriseDB shall have no liability under this Section 8 if the alleged infringement is based on (1) combination with non-EnterpriseDB products, data or business processes, (2) Customer’s specific use of the Software, (3) use of any older release of the Software when use of a newer EnterpriseDB revision would have avoided the infringement, (4) any modification or alteration of the Software, (5) any intellectual property right owned or licensed by Customer, excluding the Software, (6) EnterpriseDB’s compliance with any materials, designs, specifications or instructions provided by Customer, (7) Customer using the Software after EnterpriseDB notifies Customer to discontinue using due to a Claim, or (8) open source software. THIS SECTION 8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ENTERPRISEDB’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
- Warranties and Disclaimer. EnterpriseDB represents and warrants that for a period of thirty (30) days from the date of initial Software purchase, the Software shall substantially conform to the description contained in its Documentation. This warranty will only apply if: (i) the 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 foregoing warranties, Customer's sole and exclusive remedy, and EnterpriseDB's sole and exclusive obligation, will be for EnterpriseDB to repair or replace the Software. If EnterpriseDB is unable to correct such non-conformance in the Software after a reasonable opportunity, EnterpriseDB will refund the license fees actually paid to the applicable EnterpriseDB authorized reseller or distributor for such license; provided that these remedies are only available if EnterpriseDB receives notice of such breach within thirty (30) from the date of initial licensing. EXCEPT AS PROVIDED IN THIS SECTION 9, ENTERPRISEDB PROVIDES THE SOFTWARE TO CUSTOMER "AS IS" AND ENTERPRISEDB DISCLAIMS 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. ENTERPRISEDB DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR BE FREE FROM ERRORS OR THAT THE SOFTWARE IS DESIGNED TO MEET CUSTOMER’S REQUIREMENTS.
- 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, any loss and/or damage arising from or in connection with a virus, or any loss of data and/or damage arising therefrom or relating thereto, in each case arising from or in connection with this Agreement or the use or performance of any Software whether in an action based on contract, tort or any other legal theory, whether or not EnterpriseDB has been notified of the possibility thereof. Notwithstanding any other clause in this Agreement, EnterpriseDB's total aggregate liability arising from or in connection with this Agreement or the use or performance of any Software whether in actions based on contract, tort or any other legal theory, and whether or not EnterpriseDB has been notified of the possibility thereof, will be limited to proven direct damages caused by EnterpriseDB's sole negligence in an amount not to exceed Twenty-Five Thousand Dollars (US$25,000). 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.
- Government Rights. The Software and 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.
- Term and Termination. This Agreement is effective as of the Effective Date, and this Agreement will continue unless terminated earlier as set forth in this Section. Either party may terminate this Agreement by giving written notice to the other, in the event the other party (a) ceases to do business in the ordinary course, (b) becomes or is declared insolvent or bankrupt, (c) is the subject of any proceeding related to its liquidation or insolvency, which proceeding, if involuntary, is not dismissed within sixty (60) days, (d) makes an assignment for the benefit of its creditors, or (e) materially breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receipt of written notice of such breach given by the non-breaching party. Customer’s license to the Software automatically terminates upon Customer’s non-compliance with Other Restrictions. Subject to the foregoing, Customer’s license to the Software shall survive termination of this Agreement unless: (i) this Agreement is terminated by EnterpriseDB under Section 12(e) above; or (ii) after other termination of this Agreement, Customer materially breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receipt of written notice of such breach given by EnterpriseDB. Upon any termination of the license granted under this Agreement, Customer must uninstall all Software licensed from EnterpriseDB thereunder and cease all use of such Software. Sections 1 (subject to the terms of this Section 12), 2-6, 7 (only during the term of any Customer licenses for the Software) and 8-14 will survive the expiration or termination of this Agreement.
1. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof which does not include the use of the Software in violation of the terms of this Agreement. 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. No Customer purchase orders will be issued under this Agreement and all terms in any purchase order issued in violation of this provision are rejected by the parties.
2. 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 provided, however, that if Sections 9 and 10 cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety.
3. Force Majeure. Neither party will be liable or deemed to be in breach for any delay or failure in performance of this Agreement 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.
4. 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.
5. 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 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.
6. 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.
7. Marketing. EnterpriseDB may use Customer's name and company logo on its customer list and web site, and link to Customer's web site.
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.
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 firstname.lastname@example.org. Notice will be considered given upon receipt.
““Affiliate” means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.”
"Documentation" means any end user manuals or on-line help files regarding the use of the Software that accompanies the Software.
“Order Form” means an order document entered into by Customer and an EnterpriseDB authorized reseller or distributor which references the terms of this Agreement.
“Software” means the object code version of the EnterpriseDB-provided software set forth on the applicable Order Form, including its associated Documentation.