This legal agreement (the "Agreement") is between Customer (We will refer to Customer throughout the Agreement as "You" or "Your") and EnterpriseDB Corporation, a Delaware corporation, on behalf of itself and its Affiliates located at 34 Crosby Drive, Suite 201, Bedford, MA 01736. In this Agreement We refer to EnterpriseDB Corporation as "EnterpriseDB", "We", "Our" or "Us". There may be occasions where an order may be in a location where it would be beneficial for each of Our local Affiliates to enter into the order. We agree to permit such a local order between Our affiliated entities provided, by doing so, each Affiliate is thereby agreeing to the terms and conditions of this Agreement as it specifically relates to the particular order.
Certain provisions of this Agreement may not be applicable to You depending on the offering that You have purchased from Us. The applicable software, Services, Support, unit of measure, pricing, cost and length of subscription will be identified on a sales order form that both parties must sign for it to be binding upon each party (the "Order Form"). A subscription to our proprietary software allows You to use the subscribed software and to receive Support as stated in this Agreement for a limited period of time identified on the Order Form. Once the Order Form is signed, You are legally bound to such order irrespective of whether or not You choose to issue a purchase order. Any pre-printed terms and conditions on a purchase order sent by You shall not be binding on Us. Our fulfillment of a purchase order does not mean that we accept any of the pre-printed terms and conditions on that purchase order and We hereby reject any such terms. All of Your purchases will be governed solely and exclusively by the terms and conditions of this Agreement and the applicable Order Form.
(1) Proprietary Software. Subject to the execution of an Order Form for the purchase of EDB Proprietary Software, we provide EDB Proprietary Software based on the specific subscription plan purchased and identified on such Order Form as set forth at https://www.enterprisedb.com/product-compatibility/edb-supported-proprietary-software.pdf (which may be periodically updated).
a. As of the date that we are both signing this Agreement, our unit of measure is either (a) a 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; or (b) a server which means a single running installation of the software. The unit of measure may change over time and be reflected in an Order Form.
b. Your right to use our software allows You to install the software on hardware of Your choosing for the purchased number of units of measure and for the duration of the paid subscription period. Once installed, You can begin developing applications, but these applications must be solely for Your internal business use and not for external use or resale. That being said, You can allow Your customers to access Your application(s), which uses our software, but You may not permit Your customer to access our software directly. If You have a need to distribute or resell our software, We are happy to discuss those needs, but such activity must be under a different mutually agreed upon agreement. You may make additional copies of the software, provided such copies are solely for backup or archival purposes and, which are only in non-production.
c. In order for us to protect our intellectual property, We require that, absent Our express written consent, You do not, and will not allow anyone else to: (a) copy or use our proprietary software in any manner except as expressly permitted in this Agreement; (b) transfer, sell, rent, lease, distribute, or sublicense the proprietary software; (c) allow access or permit use of the our proprietary software by any third party except authorized third party contractors solely to provide Services to You, provided that You remain responsible for all acts and omissions of such authorized third party contractors; (d) modify or create derivative works based upon our proprietary software; (e) use our proprietary software for providing time-sharing services, service bureau services or as part of an application services provider or software as a service offering; (f) reverse engineer, disassemble, decompile our proprietary software; (g) alter or remove any proprietary notices in our proprietary software; or (h) make available to any third party any analysis of the results of operation of our proprietary software, including benchmarking results.
(2) Open Source Software. Any open source software provided by Us (e.g., PostgreSQL) will be described in the licenses directory of the software and is distributed under the applicable open source licenses and not this Agreement.
(3) Support. We will provide Support (as described in an Order Form) for the purchased quantity of the unit of measure for the software listed on an Order Form.
(4) Consulting and Training Services. We provide a variety of consultative related Services in English or in the language as set forth in the statement of work or Order Form. Subject to the execution of an Order Form or through a mutually agreed upon Statement of Work for the purchase of consultative related Services, we will deliver our Services to You during normal business hours (9 AM till 6 PM, local time) unless We agree otherwise on a statement of work. In the course of delivering and performing Services, Our consultant may use proprietary tools and scripts to perform his/her work. Such tools and scripts shall be used only by Our consultant and upon conclusion of the Services engagement, all such tools and scripts must be removed. Unless otherwise stated in a statement of work, all Services will be accepted upon delivery. Because We need to appropriately allocate our consultant’s time, if You cancel on-site Services or on-site training events with less than two (2) weeks’ notice, You will be charged for the originally scheduled Services plus any non-refundable travel expenses. If You reschedule on-site Services or on-site training events with less than 2 weeks’ notice, You will be charged for: (a) the originally scheduled Services or training; (b) any non-refundable travel expenses, and (c) the newly scheduled Services or training. The same cancellation or rescheduling policy applies for remote Services or training but with not less than one (1) week notice. Services must be consumed within a period of time described on the sales Order Form or statement of work. If not, any fees paid for such Services are forfeited. If a period is not described in an Order Form or statement of work, the period shall be six (6) months from the date of order.
(5) Payment Terms. We will invoice You once we both execute an Order Form or statement of work and You agree to pay Us the fees on such invoice. Unless agreed otherwise on an Order Form or statement of work, You will pay all invoices within thirty (30) days from the date of invoice. If You do not pay invoices when due, We may charge interest at a rate up to one percent (1%) per month on the unpaid balance from the date that it was late. If You fail to make any payment to Us when due, We may cancel or suspend work on any pending Order Form, statement of work or suspend use of the subscription. We are not responsible for any taxes related to orders received other than taxes on our income. Therefore, You will also pay an amount equal to any taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value-added taxes. If You are required under any applicable law or regulation to withhold or deduct any portion of the payments due to Us, then the sum payable to Us will be increased by the amount necessary so that We receive an amount equal to the sum specified on the Order Form or statement of work. Except as otherwise specifically set forth in this Agreement, fees are non-refundable upon payment.
(6) Confidential Information. Each of us may disclose non-public technical, financial and business information that the party disclosing the information considers to be confidential or proprietary ("Confidential Information"). 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 of this Agreement. The receiving party is liable for all violations of this section by its employees and consultants. The protections and restrictions in this section last 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 disclosing 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, or use of, 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. 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.
(7) Ownership. We and our licensors retain all ownership rights in and to our proprietary software, new releases thereto and its product documentation, and all modifications and enhancements to each, including all intellectual property rights that are not expressly granted in this Agreement. Except Your ownership in Your Confidential Information, We own all right, title and interest in and to all Deliverables. We grant to You a nonexclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, and perform the Deliverables solely in association with our software during Your valid subscription. If our Services are performed on the PostgreSQL Community’s open source code, the license will be for the length of Your use of the PostgreSQL software and be subject to the PostgreSQL License. We will have the sole right to use and/or to apply for patents, copyrights or other statutory or common law protections for any Deliverables. You agree that nothing in this Agreement will be deemed to prohibit or limit Our use, now or at any time, of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience, in any way whatsoever that are used or developed in the performance of Support or Services under this Agreement, subject to Our obligation with respect to Your Confidential Information. You assign, all right, title, and interest in and to all modifications, enhancements, customizations, source code, acquired or developed during the performance of the Support or Services under this Agreement as it relates to our proprietary software. Our product documentation, training courses and training materials are all copyrighted by Us. Training materials may not be copied electronically or otherwise whether or not for archive purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any training materials will be limited to use by the specific persons to whom the training Services are provided. All of Our trademarks, trade names, logos and notices present on the subscribed software, its documentation, Deliverables hereunder and training materials shall be preserved.
(8) Verification. We need to ensure that You are not using Our software beyond that which it is licensed. As a result, once per year, You agree to report and confirm the number of unit(s) of measure in use. We will mutually agree on the format of the report. In addition to the yearly commitment just mentioned, You agree to promptly notify Us when use of the software results in non-compliance of Your rights described in this Agreement. At the conclusion of Your subscription, You agree to de-install our proprietary software and to cease use of it.
(9) Indemnification. If a third party claim is brought against You claiming that Our proprietary software provided under this Agreement infringes such third party’s Berne Convention intellectual property right ("Claim"), We will defend the Claim and indemnify You from the resulting costs and damages awarded by a court of competent jurisdiction against You or agreed in settlement by Us. If Your use of Our proprietary software hereunder is enjoined due to a Claim, then We may, at Our sole option and expense: (a) procure for You the right to continue using Our software under the terms of this Agreement; (b) replace or modify Our 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 of such notice, the corresponding licenses are terminated and We will refund the prepaid but unused fees paid for Our infringing software. Our obligations under this section are contingent upon: (i) You giving prompt written notice to Us of any Claim; (ii) You allowing Us to control the defense and any related settlement of any Claim; and (d) You furnishing Us with reasonable assistance in the defense of any Claim. This section does not apply to the extent the alleged infringement is based on (1) combination with products, data or business processes not Our own, (2) Your application developed with Our software, (3) use of any older release of Our software when use of a newer revision (offered to you) would have avoided the infringement, (4) any modification or alteration of the software unless performed by Us, (5) any intellectual property right owned or licensed by You, (6) Our compliance with any materials, designs, specifications or instructions provided by You, (7) Your continued use of Our software after We notify You to discontinue using Our software due to a Claim, or (8) unmodified open source software. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
(10) Warranties and Disclaimer. We represent and warrant that: (a) for a period of thirty (30) days from the date of initial subscription start date, which is known as the warranty period, Our proprietary software properly subscribed hereunder will substantially conform to the description contained in Our software’s online end user manuals or on-line help files regarding the use of Our software; and (b) the Support and Services will be performed in a professional and workmanlike manner. The warranty given in subsection (a) above will only apply if: (i) Our 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 Our software. For any breach of these warranties, Your sole and exclusive remedy, and Our sole and exclusive obligation, will be for Us to repair or replace Our software or re-perform the Support or Services as warranted. If We are unable to correct such non-conformance in Our software, Support or Services after a reasonable opportunity, We will refund the subscription or service fees actually paid for such subscription or Service; provided that these remedies are only available if We receive notice of such breach within the warranty period. EXCEPT AS PROVIDED IN THIS SECTION, WE PROVIDE THE SOFTWARE, SERVICES AND SUPPORT TO YOU "AS IS" AND WE DISCLAIM 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. WE DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR BE FREE FROM ERRORS OR THAT THE SOFTWARE IS DESIGNED TO MEET YOUR REQUIREMENTS.
(11) Limitations of Liability. Notwithstanding any other clause in this Agreement, in no event will either party 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, in each case arising from or in connection with this Agreement whether in an action based on contract, tort or any other legal theory, whether or not the aggrieved party has been notified of the possibility thereof. Furthermore, and notwithstanding any other clause in this Agreement, each party’s total aggregate liability arising from or in connection with this Agreement, whether in actions based on contract, tort or any other legal theory, and whether or not the aggrieved party has been notified of the possibility thereof, will be limited to an amount not to exceed the amount paid under the applicable Order Form during the twelve (12) month period preceding the date of the claim. The foregoing limitations and exclusions shall not apply to: (i) each party’s breach of Confidentiality (Section 6) and (ii) each party’s willful or reckless misconduct. The foregoing limitations, exclusions and disclaimers are an allocation of the risk between two sophisticated parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.
WE BOTH AGREE THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT ARE CONTRACTUAL IN NATURE ONLY AND SUBJECT TO THE SOLE AND EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT. NO PERSON IS ASSERTING THE TRUTH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT; RATHER THE PARTIES HAVE AGREED THAT SHOULD ANY REPRESENTATION OR WARRANTY OF ANY PARTY PROVE UNTRUE, THE OTHER PARTY SHALL HAVE THE SPECIFIC RIGHTS AND REMEDIES SPECIFIED IN THIS AGREEMENT AS THE EXCLUSIVE REMEDY AND THAT NO OTHER RIGHTS, REMEDIES OR CAUSES OF ACTION (WHETHER IN LAW OR IN EQUITY OR WHETHER IN CONTRACT OR TORT) ARE PERMITTED TO ANY PARTY TO THIS AGREEMENT AS A RESULT OF THE UNTRUTH OF ANY SUCH REPRESENTATION OR WARRANTY. FURTHERMORE, WE BOTH AGREED THAT WE ARE NOT RELYING ON ANY STATEMENTS THAT ARE OUTSIDE OF THIS AGREEMENT (FOR EXAMPLE, STATEMENTS MADE BY MARKETING, TECHNICAL AND SALES PEOPLE, ETC.). WE BOTH AGREE THAT IF THERE WAS ANY SUCH STATEMENTS BEING RELIED UPON, WE WOULD HAVE INCORPORATED THEM SPECIFICALLY INTO THIS AGREEMENT.
(12) 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.
(13) Term and Termination. This Agreement is effective as of the last signature below and unless as otherwise set forth in an Order Form, 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. In the event of expiration or termination of a subscription, You must uninstall and cease use of all of Our proprietary software. You agree to pay Us all monies that become due prior to the date of termination.
14.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof (i.e., purchase and sale of our software subscription, services and support) and supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. As sophisticated parties, represented by counsel, each of us have agreed to define our rights, liabilities and obligations as expressly set forth in this Agreement and therefore each of us disclaim any duties, obligations, rights or remedies outside of the terms in this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
14.2 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 the warranty or liability sections cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety.
14.3 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 nature, 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.
14.4 Governing Law and Venue. This Agreement (including claims in contract or tort) 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.
14.5 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.
14.6 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.
14.7 Marketing. We may use Your name and company logo on our customer list and web site, and link to Your website.
14.8 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.
14.9 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 us shall be sent to the attention of the Legal Department with a copy sent to firstname.lastname@example.org. Notice will be considered given upon receipt.
14.10 Non-Solicitation. You may not hire, or directly or indirectly solicit or employ, any employee or contractor of ours during the term of this Agreement and for six (6) months after the termination of this Agreement; provided, however, that nothing contained herein will prevent You from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches You on a wholly unsolicited basis.