THIS END USER LICENSE AGREEMENT (THIS AGREEMENT) IS BETWEEN CDATA AND YOU. THESE TERMS APPLY TO SOFTWARE DISTRIBUTED BY CDATA SOFTWARE, INC. (LICENSOR) FOR ON-PREMISE USE. BY USING, ACCESSING, DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CDATA IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST NOT INSTALL THE SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE UPON WHICH YOU DOWNLOAD THE SOFTWARE. IF YOU ARE A CHANNEL PARTNER, YOU AGREE TO BIND YOUR END CUSTOMERS TO TERMS SUBSTANTIALLY SIMILAR AND NO LESS RESTRICTIVE TO THOSE SET FORTH HEREIN. For the purpose of this Agreement, you and, if applicable, such company (or other entity) constitutes you, your or Licensee and CDATA, us, our or we refers to CData Software, Inc., 101 Europa Drive, Suite 110, Chapel Hill, NC 27517, and its Affiliates, the owner and provider of the Software. Unless defined elsewhere in this Agreement, terms in initial capital letters have the meanings set forth in the section entitled Definitions.
(1) Grant of License. In consideration of payment of the applicable license fee and subject to compliance with the terms and conditions of this EULA, CDATA grants Licensee a non-exclusive, non-transferable, non-sublicensable right and license to use the Software, (A) during the term of such license, (B) within the scope of the License Type and Product Specific Requirements described herein, (C) in a manner specified in the terms of this EULA and on the Order Form. Only object code, machine-readable versions of the Software are licensed to Licensee hereunder, and Licensee has no rights under this EULA to the source code versions of the Software. Licensee may use, reproduce and internally distribute the Software solely in connection with and as reasonably necessary for Licensee's authorized use of the Software and for backup and archive purposes. Licensee may not make any other copies of the Software.
(2) Restrictions. The license rights granted in this EULA are subject to the following general restrictions (except and only to the extent such restrictions are prohibited by applicable law) and any other restrictions herein: (A) Licensee may not sell, license, sublicense, lend, rent, lease, or otherwise transfer the Software to a third party. Provided, however, Licensee may make the Software available to a third party to operate the Software on behalf of Licensee (such as a cloud provider), subject to the terms and conditions of this EULA, and provided that Licensee shall be fully liable for such third party's compliance with the terms and conditions of this EULA. Licensee may not use the Software for time-sharing, outsourcing, service bureau, or managed service provider purposes, or otherwise make the Software available to third parties for their commercial purposes, unless expressly authorized in writing by CDATA; (B) Licensee acknowledges that the Software in source code form remains a confidential trade secret of CDATA. Licensee may not reverse engineer, decipher, decompile, modify or disassemble the Software or otherwise attempt to derive the source code of the Software, embed the Software in whole or in part in any other software or product, or develop derivative works of the Software or allow others to do so, or to attempt to do any of the foregoing; (C) Licensee may not use the Software to create products or services similar to, or competitive with, the Software; and (D) Licensee shall not disclose or publish the results of any performance, functional, or other evaluation or benchmarking of the Software to any third party without the prior written consent of CDATA.
(3) Audit. CDATA or its agent may at any time audit Licensee for the sole purpose of determining the number of active licenses in use by Licensee (In Use Licenses). Where the In Use Licenses materially exceed the purchased licenses, CDATA shall either notify the Licensee who shall within 10 business days reduce the In Use Licenses to be consistent with the purchased licenses or submit an invoice to the Licensee or Channel Partner for payment for the licenses that exceed the number of purchased licenses.
(4) Financial Terms. Except as otherwise provided in the applicable Order Form, we will send you an invoice for the initial license fees upon execution of the Order Form. After the initial term in a Subscription, we will invoice you annually after we send you a quote (Renewal Quote) approximately sixty (60) days prior to the start of each annual period in a multi-year Subscription. Except as otherwise provided in an applicable Order Form, all payment obligations are non-cancelable and non-contingent and all amounts paid are nonrefundable except as set forth herein. All invoices are due and payable within thirty (30) days of receipt. If we don't receive timely payment, we reserve the right to suspend the impacted Software or service and charge a late fee equal to the lesser of one percent (1%) per month or the maximum amount allowed by law in addition to our cost of collection. You will pay applicable sales, use, goods and services, value-added, or equivalent indirect taxes and duties unless you timely give us documentary evidence of exemption as prescribed by the tax authorities. We shall ensure our invoices state taxes separately and meet local statutory invoicing requirements to enable you to seek recovery of the indirect taxes collected and remitted by us. To protect against inflation, on the commencement of each annual period during a multi-year Subscription term, CDATA may implement an increase in fees up to a percentage increase not to exceed the greater of the United States Consumer Price Index as published by the U.S. Department of Labor effective in the year of the increase or three percent (3%), upon thirty (30) days' prior notice to Licensee.
(5) Premium Support. Upon payment of annual Premium Support fees indicated on the Order Form, we will provide you with the Premium Support services for the Software, valid at the time of signature of this Agreement and available at https://www.cdata.com/support/. Details of the Premium Support services may be modified from time to time, but we warrant to you that no such modification will materially degrade the Premium Support services.
(6) Professional Services. You may request that we provide services, consulting and training related to the Software (Professional Services). Any Professional Services to be provided will be included in Order Form or statement of work (SOW), which shall describe the fees, costs and expenses payable by you in connection with the performance of such Professional Services, and which shall describe the scope of such services. The Order Form or SOW shall be binding upon the parties only after mutual execution or performance by us and payment of Professional Services fees by you. Each such Order Form or SOW shall be considered an integral part of this Agreement.
(7) Ownership. The Software is licensed under the terms of this EULA, not sold. The Software and all authorized copies thereof, shall remain the exclusive property of CDATA, and shall not be used in any way other than as allowed by this EULA, and shall not be disclosed to any third party. Licensee acknowledges that, as between CDATA and Licensee, the Software and all Intellectual Property Rights with respect thereto, are and will at all times be the property of CDATA, even if Feedback is incorporated into current or subsequent versions of the Software.
(8) Confidentiality and Feedback. CDATA and Licensee acknowledge that each party may have access to certain of the other party's confidential and proprietary information in connection with the Software and this EULA (the Confidential Information). Each party will take all reasonable precautions necessary to safeguard Confidential Information, including those taken by such party to protect its own confidential information of a similar nature. Each party will use the other party's Confidential Information solely to fulfill the purposes of this EULA. Neither party will have any confidentiality obligation with respect to any portion of the Confidential Information that (A) it independently develops without reference to the other party's Confidential Information, (B) it lawfully obtains from a third party under no obligation of confidentiality or (C) becomes available to the public other than as a result of its act or omission. Licensee may, from time to time, provide suggestions, comments or other feedback to CDATA with respect to the Software (Feedback). Licensee agrees that all Feedback is and shall be entirely voluntary. CDATA shall be free to disclose and use such Feedback as it sees fit, entirely without obligation of any kind to Licensee.
(9) Data Privacy and Security. CDATA does not have any access to Licensee data which is accessed and used as part of, or through your use of the Software, and therefore CDATA is not considered a 'processor' and does not have obligations to Licensee under the European Union's General Data Protection Regulation (EU/2016/679) (GDPR) or like privacy laws. Licensee will install and use the Software on premises and network environments under its control and as such Licensee is solely responsible for: (A) use of the Software, including without limitation, installation, deployment, and management of the Software; (B) use of the Software in compliance with all applicable laws; (C) ensuring the security of all data collected, processed, stored, and maintained using the Software; and (D) providing adequate notice and obtaining and maintaining valid consents from all of Licensee's end users, as may be necessary under applicable law (including data protection or data processing laws and regulations), to process their personal data using the Software for Licensee's intended purposes. Licensee agrees that upon installation the Software will automatically transmit to CDATA telemetry information about the computing and network environment in which the Software is deployed including IP address and the data usage and system statistics of the deployment, but no personally identifiable information is transmitted to CDATA.
(10) Limited Warranty and Disclaimers.
(10.1) Limited Warranty. CDATA warrants that for a period of ninety (90) days from the Effective Date (Warranty Period) the Software will perform substantially in accordance with the then-current Documentation, provided that such Software is properly used by Licensee in accordance with such Documentation and this EULA. This limited warranty is VOID if failure of the Software is due to accident, negligence, abuse, improper installation or misuse of the Software.
(10.2) Remedies. CDATA's sole and exclusive liability and Licensee's sole and exclusive remedy under this limited warranty shall be to use commercially reasonable efforts to repair or replace the Software to make the Software perform substantially in accordance with the accompanying Documentation. In the event CDATA is unable to remedy the non-conformity and such non-conformity materially affects the functionality of the Software, Licensee may promptly terminate the license applicable to the non-conforming Software and return such Software and any applicable Documentation to CDATA or Channel Partner, as applicable. In such event, Licensee will receive a refund of the license fee received by CDATA with respect to such Software, less the value of use to date. The above remedy is available only if CDATA or Channel Partner are promptly notified in writing within the Warranty Period. Any replacement Software will be warranted for the remainder of the original Warranty Period, or for thirty (30) days, whichever is longer.
(10.3) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS EULA, THE SOFTWARE IS PROVIDED AS IS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, CDATA (AND ITS LICENSORS) EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. CDATA DOES NOT WARRANT THAT THE SERVICES OR FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, NEITHER CDATA (NOR ITS LICENSORS) WARRANT OR MAKE ANY REPRESENTATIONS AND DISCLAIMS ALL LIABILITY REGARDING ANY LOSS OF DATA OR LOSS OF USE OF DATA (INCLUDING PERSONAL DATA), THE PERFORMANCE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CDATA OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S OR CHANNEL PARTNER'S JURISDICTION. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, CDATA'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
(11) Limitation of Liability. CDATA, ITS LICENSORS, AGENTS, AND SUPPLIERS SHALL NOT BE LIABLE WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA (INCLUDING PERSONAL DATA) OR LOSS OF USE, OR PROCUREMENT OF REPLACEMENT SOFTWARE, HOWEVER INCURRED BY THE LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF CDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AND CUMULATIVE LIABILITY OF CDATA FOR DAMAGES UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE FOR THE AFFECTED SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO ANY LIABILITY.
(12) Term and Termination of License. The term applicable to Licensee's use of the Software shall be on a: (i) Subscription basis subject to payment of the applicable subscription fees for each term; or (ii) Perpetual basis, as indicated in the Order Form. CDATA reserves the right to terminate this EULA and Licensee's corresponding right to use the Software in the event Licensee breaches a material obligation under this EULA and fails to cure such breach within thirty (30) days after CDATA sends written notice describing the breach if such breach is capable of being cured, or immediately if the breach is not capable of being cured. Upon any termination of this EULA, or if Licensee should discontinue use of the Software or give up personal use and control of the computers or other hardware on which the Software is installed, Licensee shall destroy all copies of the Software and any related Documentation in any form. The Sections of this EULA which contemplate performance or observance subsequent to termination or expiration of this EULA, or which by their nature are intended to survive termination or expiration of this EULA shall so survive termination or expiration and continue in full force and effect.
(13) General. (A) This Agreement, our Privacy Policy set forth at https://www.cdata.com/company/legal/privacy/ and any Order Forms or SOWs agreed to by you, in writing or by your actions, constitutes the entire agreement between the Parties with respect to the Software, Professional Services and Premium Support (as applicable), which supersedes any prior or contemporaneous understandings, oral or written, and all other communications between the parties. You acknowledge that you have not relied on the availability of any future version of the Software or any future product in executing this Agreement. Further, this Agreement may not be amended except by a writing signed by both parties. Any inconsistent terms on Purchase Orders or other documents or portals regarding the Software, Professional Services or Premium Support provided under this Agreement issued by you at any time, are for your internal use only, and any provisions contained in any such document shall have no effect whatsoever upon this Agreement. This Agreement may be executed via electronic signature. (B) The Software may include third party software components (collectively, Third Party Dependencies) including programs that are available under either their own license, or an open source or free software license (each a Third Party License) and distributed, embedded or bundled with the Software or recommended in connection with the Software's installation and use. Third Party Licenses are typically found in a readme file in the Software or accompanying the Software and/or hardware. This EULA does not alter any rights or obligations Licensee may have under Third Party Licenses. Third Party Dependencies are provided AS IS and notwithstanding anything to the contrary, the Disclaimer of Warranties and Limitation of Liability provisions of this EULA shall apply to Third Party Dependencies. (C) A party is not liable for non-performance of obligations under this Agreement, if the non-performance is caused by events or conditions beyond that party's control, and the party gives prompt notice and makes all reasonable efforts to perform. In no event will this provision affect a party's obligation to make payments under this Agreement. (D) You agree that we may identify you as a customer of the Software and display your company name and/or logo (Customer Marks) on our website, in press releases and in our published marketing materials, solely in connection with the Software and such identification. We will comply with any reasonable trademark usage guidelines you provide to us in connection with Customer Marks. You retain all title in and to Customer Marks, and all goodwill developed from such use shall be solely for your benefit. (E) All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. We can assign, novate or otherwise transfer Our rights and obligations under this Agreement to an Affiliate or incorporate an Affiliate as a party to this Agreement or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Our assets or voting securities or for bona fide restructuring purposes. You can assign this Agreement with Our prior knowledge and written consent. (F) This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement shall be brought against any of the parties in the state or federal courts of North Carolina. The application of Uniform Computer Information Transactions Act (UCITA), the Uniform Commercial Code (UCC) and the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. (G) The waiver or failure of a party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. (H) If you are a branch or agency of the U.S. Government, use, duplication or disclosure of the Software is subject to the restrictions set forth in this Agreement except that this Agreement shall be governed by federal law. Any additional rights or changes desired by the U.S. Government shall be negotiated with us consistent with this Agreement. (I) Each party acknowledges its obligation to comply with all applicable laws, rules, statutes and regulations, including specifically but not limited to export laws including Bureau of Export Administration restrictions and anti-corruption legislation. Each party warrants that, to the best of its knowledge no money or other consideration of any kind paid or payable under this Agreement or by separate agreement is, has been or will be used for unlawful purposes, including purposes violating anti-corruption laws, including making or causing to be made payments to any employee of either party or anyone acting on their behalf to assist in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage. (J) We are an independent contractor, and our personnel are not and shall not be considered employees or agents of your company for any purpose whatsoever.
(14) Definitions. (A) Affiliates means entities, regardless of corporate status, controlled by, controlling or under common control with a party, respectively, or officers, directors, shareholders, employees or agents of any of the foregoing. (B) Application means any application, program or other software that you develop using the Software. An Application must represent a significant functional and value enhancement to the Software. (C) Authorized User means one named person, employee, contractor or temporary worker authorized to use the Software for personal use or while performing duties within the scope of their employment or assignment. (D) Channel Partner means an entity that CDATA has authorized as a reseller, systems integrator or partner of the Software. (E) Core means a core of a CPU made up of an independent processor combined onto a single integrated circuit or silicon chip, in both virtualized and/or non-virtualized environments, and regardless of whether used in a Production or Non-Production environment. (F) Desktop/Workstation means a single physical machine, including but not limited to a personal computer, workstation, laptop computer, desktop computer or mobile device, specifically excluding a Server, on which the Software is loaded or executed, that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously. (G) Developer means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is actively using the Software at any given time, designated by you to do any of the following: (i) build, compile, assemble, test or otherwise cause to be executed any application programs that rely on the Software as a component; (ii) use or execute any Software programs for development, testing, or support purposes; (iii) package or otherwise prepare Software components for redistribution as part of another program or application; or (iv) have possession of any Software resources or files for any purposes other than archiving. (H) Instance means a loaded operating system running either on a physical computer or within a virtual environment. Each virtual environment on a physical computer is deemed an instance. (I) Intellectual Property Rights means worldwide common law and statutory rights associated with (i) patents and patent applications; (ii) works of authorship, including mask work rights, copyrights, copyright applications, copyright registrations and moral rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) all rights to registered and common law trademarks, trade names, trade dress, and service marks; and (v) other proprietary rights relating to intangible intellectual property (including but not limited to designs, design rights, source codes, proprietary material, know-how, ideas, concepts, methods, techniques, rights in databases and all other intellectual property rights and rights of a similar character whether registered or capable of registration). (J) Licensee means the end customer that has purchased the Software either directly from CDATA or through a Channel Partner. (K) Non-Commercial means any use of the Software which (i) is not undertaken for profit; (ii) is not intended to produce software, works, services, or data for commercial use; or (iii) is neither conducted, or funded, by a person or an entity engaged in the commercial use, application, development or exploitation of works similar to the Software. (L) Non-Production means a non-operational environment into which the Software may be installed, which is not processing live data, which is not running any of your operations and which has not been deployed to permit any users to access live data. Non-Production environments include development, quality assurance and test environments. (M) Order Form means any the invoice and/or other purchasing documentation or order acknowledgment issued by CDATA or Channel Partner. (N) Perpetual means the licensing business model whereby Licensee or Channel Partner, as applicable, pays CDATA a one-time license fee for use of the version of the Software, as originally delivered to Licensee, in perpetuity. (O) Production means an operational environment which is processing live data which has been deployed so that the intended users of the environment are able to access the live data. Production environments include disaster recovery, failover, and high availability environments. (P) Professional Services means consulting, development or training services provided by Us remotely via phone or the Internet. (Q) Server means a physical or virtual machine, which may be limited by a certain number of Cores as set forth in an Order Form, which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access. (R) Site means the single physical location that corresponds to a single physical mailing address, where your Developers are licensed to use the Software as designated in an Order Form. (S) Software means the software and corresponding licenses as more particularly described in the Order Form, and any associated guides and manuals (Documentation) provided by CDATA hereunder. (T) Subscription means the business model whereby Licensee or Channel Partner, as applicable, pays CDATA a fee for use of the Software for a specified term.
(15) License Types. The Software is offered in the following license types. The following license types may also be available as Site, team or enterprise licenses if noted on the Order Form. For the avoidance of doubt, if the license type listed below is not indicated on your Order Form then it does not apply to your purchase.
(15.1) Trial License. We may from time to time, permit you to register for a free trial of certain Software at our website. On the Effective Date, we grant you a free-of-charge, non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Authorized User to install and use one (1) copy of the Software solely for internal Non-Production, Non-Commercial purposes to evaluate the Software to determine whether to purchase a license to the Software. You may not download more than one (1) copy of the Software unless otherwise authorized by us. You may not use the Software for any other purpose. You may only use the Software for thirty (30) days from the Effective Date, unless otherwise specified by us in the Order Form (Trial Period). Unless you pay the applicable fee for the Software, the Software may become inoperable and, in any event, your right to use Software automatically expires at the end of the Trial Period. We may terminate your license to the trial version of the Software upon written notice at any time for any reason and without liability of any kind. If you subsequently license a non-trial version of the Software, your license to the trial version of the Software shall immediately terminate. You may not distribute Applications that use the trial version of the Software as a runtime component.
(15.2) Non-Commercial License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install and use the Software internally solely for Non-Commercial purposes on one (1) Desktop/Workstation.
(15.3) Development License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Developer to install and use the Software internally on any number of Desktop/Workstations or Non-Production Servers owned or controlled by the named Developer for Non-Production purposes. For the avoidance of doubt, you are not granted any rights to distribute or deploy any product, including but not limited to Application(s) which may be developed by or for you under this license. You may reinstall the Software on a different Desktop/Workstation or Non-Production Server provided that the Software is uninstalled from the original Desktop/Workstation or Non-Production Server.
(15.4) Desktop/Workstation License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install and use the Software internally on one (1) Desktop/Workstation for Production or Non-Production purposes. Under this license grant the Software may not be installed or used on a Server. You may reinstall the Software on a different Desktop/Workstations provided that the Software is uninstalled from the original Desktop/Workstations.
(15.5) Server License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install and use the Software internally on one (1) Server, with the number of Cores noted in the Order Form, owned or operated by you for Production or Non-Production purposes. For the purposes of this license grant, you may install and use the Software on one (1) Desktop/Workstation as a substitute for, and not in addition to, one (1) Server. For the avoidance of doubt, you are not granted any rights to distribute or deploy any product, including but not limited to, Application(s) developed under this Server License without obtaining a separate license from us. You may reinstall the Software on a different Server provided that the Software is uninstalled from the original Server.
(16) Product Specific Requirements.
(16.1) BizTalk Standard. You may use the Software solely with Microsoft BizTalk(R) Standard Edition for your internal data processing and computing needs.
(16.2) CDATA Oracle Driver. The CDATA Oracle Driver contains Oracle Instant Client libraries, as defined, redistributed and licensed to you, in compliance with and under the relevant terms of, the Oracle Technology Network License located at https://www.oracle.com/technetwork/licenses/distribution-license-152002.html. You have no right to distribute the Oracle Instant Client libraries or its documentation without express permission from Oracle Corporation. Further, Oracle Corporation is a third-party beneficiary of this Agreement solely as it pertains to the Oracle Instant Client libraries.
(16.3) ADO.NET Providers and CDATA FireDAC Components. (A) Per-Developer License: We grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Developer per license purchased to install and internally use the Software on any number of Desktop/Workstations or Non-Production Servers owned or controlled by the named Developer in order to develop and test Applications. You may reinstall the Software on a different Desktop/Workstations or Non-Production Servers provided that the Software is uninstalled from the original Desktop/Workstations or Non-Production Servers; AND (B) Royalty-Free Distribution License: We grant you a royalty-free, non-assignable, non-sublicensable, non-exclusive, worldwide right and license to distribute compiled desktop or mobile Applications developed by or for you, which use the Software as a run-time component, to internal Desktop/Workstations within your organization or with mobile applications, without owing additional fees to us. (C) Restrictions: For the avoidance of doubt, you may not use or install the Software on a Production Server or distribute Applications outside your organization without purchasing a separate license from us. (D) Termination: If you do not pay renewal Subscription license fees or if either party breaches this Agreement the following occurs: (1) the Per-Developer license grant set forth above continues perpetually; (2) Any sublicenses granted by you to your end users prior to such expiration or termination to use the Software as a run-time component as part of your Application survive; (3) the Royalty Free Distribution license grant above immediately terminates and you will immediately stop developing, distributing or deploying Application(s); and (4) you will not receive any further support services, updates, upgrades or new releases of the Software.
(16.4) DBAmp. Definitions. As used in relation to your license to the DBAmp Software, Licensee means the end customer identified in the Order Form that has purchased the DBAmp Software either directly from CDATA or through a Channel Partner and owns the Production Salesforce Org ID with which the DBAmp Software is associated and its employees and consultants who are authorized to use the Production Salesforce Org ID; and Production Salesforce Org ID means the single Salesforce Org ID enabling the services provided by Salesforce.com for use in an operational environment which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data and is either specifically identified in the Order Form or first linked to the DBAmp Software by the Licensee. License Grant. During the Subscription term and subject to your payment of license fees, CDATA grants Licensee a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to (i) install and use the DBAmp Software in connection with the Production Salesforce Org ID on any number of machines, provided the total Core count of all machines does not exceed the number of Cores specified in the Order Form; and (ii) use the DBAmp Software in connection with any sandbox instances of the Production Salesforce Org ID. For the avoidance of doubt, the DBAmp Software may not be transferred to or used with any other Production Salesforce Org ID other than the one to which it is originally associated.
(16.5) ArcESB. Licensee may install and use the ArcESB Software solely on the number of Servers in the Order Form. Licensee may use the ArcESB Software solely with the number of connections or partners identified in the Order Form (as applicable). The ArcESB Software may not be used by an EDI Network Provider, VAN or a managed service provider, or any other service bureau, to process and/or transmit data for third parties as a service.
(17) IF YOU ARE A LICENSEE IN JAPAN, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FOLLOWING TERMS APPLY TO YOU: (A) Contracting Party. All references to CDATA, us, our or we refers to CData Software Japan, LLC. (B) Translated Agreement. If the laws of Japan require that contracts be in the local language in order to be enforceable, the version of this Agreement that shall govern is the translated version of this Agreement. (C) Compliance with The Japan Protection of Personal Information Act. (1) Personal Customer Data. You and CDATA may have access to or need to use an end-user's private, confidential information or data pertaining to a specific person in the course of delivering, marketing, selling, or supporting the Software, including without limitation, a person's e-mail address, name, mailing address, telephone number, social security number, credit card number, or persistent identifier (such as a customer number held in a cookie), in each case which is such person's individually identifiable information (Private Customer Data) that is subject to the Japan Protection of Personal Information Act No. 57 of 2003 as amended (the Act). Private Customer Data also includes information that can, together with the other information supplied to or collected by you or us, identify a specific individual, even if such information cannot, by itself, identify a specific individual. Each party acknowledges that its use, access and disclosure of Private Customer Data is subject to the Act. Each party agrees that it will comply with the Act and its own privacy policies. (2) Data Safeguards. Each party will implement and maintain such safeguards as required by the Act for the protection of Private Customer Data (Data Safeguards). In the event such party discovers or is notified of a breach or potential breach of such party's security related to Private Customer Data, such party will immediately (i) notify the other party's account manager or other person in charge of managing the relationship between the parties; (ii) investigate the effects of the breach or potential breach using commercially reasonable efforts; and (iii) take such actions as are required by the Act in an effort to prevent the breach or potential breach from recurring and in an effort to remedy the breach. You shall permit persons reasonably designated by us, and reasonably acceptable to you, to review, during normal business hours, and with reasonable prior notice, your security procedures for the protection of Private Customer Data, including, without limitation, observing operations, reviewing documents and other materials and interviewing your relevant personnel, in each case to the extent necessary to satisfy the requirements of the Act and provided that we do not unduly interfere with your operations, and provided further that your employee accompanies the designated reviewer at all times. The designated reviewer, upon request, shall be obligated to sign a non-disclosure and confidentiality agreement with you prior to conducting any review. (3) Liability for Breach of Data Protection Policies. Notwithstanding any other provision of this Agreement, provided that you have taken such steps as are necessary or appropriate to ensure that Private Customer Data is used in accordance with the Act, to the extent permitted under applicable law, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES DUE TO THE OTHER PARTY'S VIOLATION OR BREACH OF THE ACT OR OF SUCH PARTY'S OWN DATA PROTECTION PRIVACY POLICIES AND DATA SAFEGUARDS. (D) Governing Law. This Agreement, and all disputes arising out of or relating to this Agreement, shall be governed by, and construed and interpreted in accordance with, the laws of Japan, without regard to conflicts of laws principles of Japan or any other jurisdiction. The Parties hereby submit to the exclusive jurisdiction of the Tokyo District Courts in relation to any dispute arising in connection with this Agreement. (E) Elimination of Anti-social Forces. Both parties represent that, as of the Effective Date and during the term of this Agreement: (i) Each party itself, its directors, officers, employees engaging in management, persons or entities which substantially hold control over it, or any equivalent thereof (collectively Party or its Concerned Parties) is not and has not been during the past five (5) years a Boryokudan (crimimal syndicatee), Boryokudan-in (member of Boryokudan), Boryokudan-kankei-kigyo (Boryokudan-related company), Sokaiya (corporate racketeers), Shakaiundohyobogoro, Tokusyu-chino-boryokusyudan or any equivalent or a member of any equivalent (collectively, Anti-social Forces); (ii) the Party or its Concerned Parties do not and will not have any socially disapproved relationship with Anti-Social Forces; (iii) The Party or its Concerned Parties have not supplied any funds or provided any benefits to Anti-Social Forces and have not had any relationship with persons or entities which have supplied any funds or provided any benefits to Anti-Social Forces; (iv) the Party has not let the Anti-Social Forces use its name to enter into an agreement; and (v) the Party will not engage in the following acts against the other Party (which includes such Parties' end-users) by itself or using any third party: (a) make demand using violence; (b) make unjustified demands in excess of legal liability; (c) behave threateningly or act violently in the course of transactions; (d) obstruct the other Party's business or damage the other Party's credibility by spreading false information, or using fraudulent means or force; or (e) any equivalent of the above. If we request a report of matters represented herein, you will make best efforts to provide us with such report. Either Party may terminate this Agreement upon written notice of termination to the other Party without any prior demand, if such Party finds that the other Party has violated the representation herein. Neither Party will be liable against the other Party for any damages arising from termination due to the other Party's violation of this Section.
Last Revised: May 25, 2021 CDATA SOFTWARE, INC. - END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THIS AGREEMENT) IS BETWEEN CDATA AND YOU. THESE TERMS APPLY TO SOFTWARE DISTRIBUTED BY CDATA SOFTWARE, INC. (LICENSOR) FOR ON-PREMISE USE. BY USING, ACCESSING, DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CDATA IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST NOT INSTALL THE SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE UPON WHICH YOU DOWNLOAD THE SOFTWARE. IF YOU ARE A CHANNEL PARTNER, YOU AGREE TO BIND YOUR END CUSTOMERS TO TERMS SUBSTANTIALLY SIMILAR AND NO LESS RESTRICTIVE TO THOSE SET FORTH HEREIN. For the purpose of this Agreement, you and, if applicable, such company (or other entity) constitutes you, your or Licensee and CDATA, us, our or we refers to CData Software, Inc., 101 Europa Drive, Suite 110, Chapel Hill, NC 27517, and its Affiliates, the owner and provider of the Software. Unless defined elsewhere in this Agreement, terms in initial capital letters have the meanings set forth in the section entitled Definitions.
(1) Grant of License. In consideration of payment of the applicable license fee and subject to compliance with the terms and conditions of this EULA, CDATA grants Licensee a non-exclusive, non-transferable, non-sublicensable right and license to use the Software, (A) during the term of such license, (B) within the scope of the License Type and Product Specific Requirements described herein, (C) in a manner specified in the terms of this EULA and on the Order Form. Only object code, machine-readable versions of the Software are licensed to Licensee hereunder, and Licensee has no rights under this EULA to the source code versions of the Software. Licensee may use, reproduce and internally distribute the Software solely in connection with and as reasonably necessary for Licensee's authorized use of the Software and for backup and archive purposes. Licensee may not make any other copies of the Software.
(2) Restrictions. The license rights granted in this EULA are subject to the following general restrictions (except and only to the extent such restrictions are prohibited by applicable law) and any other restrictions herein: (A) Licensee may not sell, license, sublicense, lend, rent, lease, or otherwise transfer the Software to a third party. Provided, however, Licensee may make the Software available to a third party to operate the Software on behalf of Licensee (such as a cloud provider), subject to the terms and conditions of this EULA, and provided that Licensee shall be fully liable for such third party's compliance with the terms and conditions of this EULA. Licensee may not use the Software for time-sharing, outsourcing, service bureau, or managed service provider purposes, or otherwise make the Software available to third parties for their commercial purposes, unless expressly authorized in writing by CDATA; (B) Licensee acknowledges that the Software in source code form remains a confidential trade secret of CDATA. Licensee may not reverse engineer, decipher, decompile, modify or disassemble the Software or otherwise attempt to derive the source code of the Software, embed the Software in whole or in part in any other software or product, or develop derivative works of the Software or allow others to do so, or to attempt to do any of the foregoing; (C) Licensee may not use the Software to create products or services similar to, or competitive with, the Software; and (D) Licensee shall not disclose or publish the results of any performance, functional, or other evaluation or benchmarking of the Software to any third party without the prior written consent of CDATA.
(3) Audit. CDATA or its agent may at any time audit Licensee for the sole purpose of determining the number of active licenses in use by Licensee (In Use Licenses). Where the In Use Licenses materially exceed the purchased licenses, CDATA shall either notify the Licensee who shall within 10 business days reduce the In Use Licenses to be consistent with the purchased licenses or submit an invoice to the Licensee or Channel Partner for payment for the licenses that exceed the number of purchased licenses.
(4) Financial Terms. Except as otherwise provided in the applicable Order Form, we will send you an invoice for the initial license fees upon execution of the Order Form. After the initial term in a Subscription, we will invoice you annually after we send you a quote (Renewal Quote) approximately sixty (60) days prior to the start of each annual period in a multi-year Subscription. Except as otherwise provided in an applicable Order Form, all payment obligations are non-cancelable and non-contingent and all amounts paid are nonrefundable except as set forth herein. All invoices are due and payable within thirty (30) days of receipt. If we don't receive timely payment, we reserve the right to suspend the impacted Software or service and charge a late fee equal to the lesser of one percent (1%) per month or the maximum amount allowed by law in addition to our cost of collection. You will pay applicable sales, use, goods and services, value-added, or equivalent indirect taxes and duties unless you timely give us documentary evidence of exemption as prescribed by the tax authorities. We shall ensure our invoices state taxes separately and meet local statutory invoicing requirements to enable you to seek recovery of the indirect taxes collected and remitted by us. To protect against inflation, on the commencement of each annual period during a multi-year Subscription term, CDATA may implement an increase in fees up to a percentage increase not to exceed the greater of the United States Consumer Price Index as published by the U.S. Department of Labor effective in the year of the increase or three percent (3%), upon thirty (30) days' prior notice to Licensee.
(5) Premium Support. Upon payment of annual Premium Support fees indicated on the Order Form, we will provide you with the Premium Support services for the Software, valid at the time of signature of this Agreement and available at https://www.cdata.com/support/. Details of the Premium Support services may be modified from time to time, but we warrant to you that no such modification will materially degrade the Premium Support services.
(6) Professional Services. You may request that we provide services, consulting and training related to the Software (Professional Services). Any Professional Services to be provided will be included in Order Form or statement of work (SOW), which shall describe the fees, costs and expenses payable by you in connection with the performance of such Professional Services, and which shall describe the scope of such services. The Order Form or SOW shall be binding upon the parties only after mutual execution or performance by us and payment of Professional Services fees by you. Each such Order Form or SOW shall be considered an integral part of this Agreement.
(7) Ownership. The Software is licensed under the terms of this EULA, not sold. The Software and all authorized copies thereof, shall remain the exclusive property of CDATA, and shall not be used in any way other than as allowed by this EULA, and shall not be disclosed to any third party. Licensee acknowledges that, as between CDATA and Licensee, the Software and all Intellectual Property Rights with respect thereto, are and will at all times be the property of CDATA, even if Feedback is incorporated into current or subsequent versions of the Software.
(8) Confidentiality and Feedback. CDATA and Licensee acknowledge that each party may have access to certain of the other party's confidential and proprietary information in connection with the Software and this EULA (the Confidential Information). Each party will take all reasonable precautions necessary to safeguard Confidential Information, including those taken by such party to protect its own confidential information of a similar nature. Each party will use the other party's Confidential Information solely to fulfill the purposes of this EULA. Neither party will have any confidentiality obligation with respect to any portion of the Confidential Information that (A) it independently develops without reference to the other party's Confidential Information, (B) it lawfully obtains from a third party under no obligation of confidentiality or (C) becomes available to the public other than as a result of its act or omission. Licensee may, from time to time, provide suggestions, comments or other feedback to CDATA with respect to the Software (Feedback). Licensee agrees that all Feedback is and shall be entirely voluntary. CDATA shall be free to disclose and use such Feedback as it sees fit, entirely without obligation of any kind to Licensee.
(9) Data Privacy and Security. CDATA does not have any access to Licensee data which is accessed and used as part of, or through your use of the Software, and therefore CDATA is not considered a 'processor' and does not have obligations to Licensee under the European Union's General Data Protection Regulation (EU/2016/679) (GDPR) or like privacy laws. Licensee will install and use the Software on premises and network environments under its control and as such Licensee is solely responsible for: (A) use of the Software, including without limitation, installation, deployment, and management of the Software; (B) use of the Software in compliance with all applicable laws; (C) ensuring the security of all data collected, processed, stored, and maintained using the Software; and (D) providing adequate notice and obtaining and maintaining valid consents from all of Licensee's end users, as may be necessary under applicable law (including data protection or data processing laws and regulations), to process their personal data using the Software for Licensee's intended purposes. Licensee agrees that upon installation the Software will automatically transmit to CDATA telemetry information about the computing and network environment in which the Software is deployed including IP address and the data usage and system statistics of the deployment, but no personally identifiable information is transmitted to CDATA.
(10) Limited Warranty and Disclaimers.
(10.1) Limited Warranty. CDATA warrants that for a period of ninety (90) days from the Effective Date (Warranty Period) the Software will perform substantially in accordance with the then-current Documentation, provided that such Software is properly used by Licensee in accordance with such Documentation and this EULA. This limited warranty is VOID if failure of the Software is due to accident, negligence, abuse, improper installation or misuse of the Software.
(10.2) Remedies. CDATA's sole and exclusive liability and Licensee's sole and exclusive remedy under this limited warranty shall be to use commercially reasonable efforts to repair or replace the Software to make the Software perform substantially in accordance with the accompanying Documentation. In the event CDATA is unable to remedy the non-conformity and such non-conformity materially affects the functionality of the Software, Licensee may promptly terminate the license applicable to the non-conforming Software and return such Software and any applicable Documentation to CDATA or Channel Partner, as applicable. In such event, Licensee will receive a refund of the license fee received by CDATA with respect to such Software, less the value of use to date. The above remedy is available only if CDATA or Channel Partner are promptly notified in writing within the Warranty Period. Any replacement Software will be warranted for the remainder of the original Warranty Period, or for thirty (30) days, whichever is longer.
(10.3) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS EULA, THE SOFTWARE IS PROVIDED AS IS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, CDATA (AND ITS LICENSORS) EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. CDATA DOES NOT WARRANT THAT THE SERVICES OR FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, NEITHER CDATA (NOR ITS LICENSORS) WARRANT OR MAKE ANY REPRESENTATIONS AND DISCLAIMS ALL LIABILITY REGARDING ANY LOSS OF DATA OR LOSS OF USE OF DATA (INCLUDING PERSONAL DATA), THE PERFORMANCE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CDATA OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S OR CHANNEL PARTNER'S JURISDICTION. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, CDATA'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
(11) Limitation of Liability. CDATA, ITS LICENSORS, AGENTS, AND SUPPLIERS SHALL NOT BE LIABLE WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA (INCLUDING PERSONAL DATA) OR LOSS OF USE, OR PROCUREMENT OF REPLACEMENT SOFTWARE, HOWEVER INCURRED BY THE LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF CDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AND CUMULATIVE LIABILITY OF CDATA FOR DAMAGES UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE FOR THE AFFECTED SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO ANY LIABILITY.
(12) Term and Termination of License. The term applicable to Licensee's use of the Software shall be on a: (i) Subscription basis subject to payment of the applicable subscription fees for each term; or (ii) Perpetual basis, as indicated in the Order Form. CDATA reserves the right to terminate this EULA and Licensee's corresponding right to use the Software in the event Licensee breaches a material obligation under this EULA and fails to cure such breach within thirty (30) days after CDATA sends written notice describing the breach if such breach is capable of being cured, or immediately if the breach is not capable of being cured. Upon any termination of this EULA, or if Licensee should discontinue use of the Software or give up personal use and control of the computers or other hardware on which the Software is installed, Licensee shall destroy all copies of the Software and any related Documentation in any form. The Sections of this EULA which contemplate performance or observance subsequent to termination or expiration of this EULA, or which by their nature are intended to survive termination or expiration of this EULA shall so survive termination or expiration and continue in full force and effect.
(13) General. (A) This Agreement, our Privacy Policy set forth at https://www.cdata.com/company/legal/privacy/ and any Order Forms or SOWs agreed to by you, in writing or by your actions, constitutes the entire agreement between the Parties with respect to the Software, Professional Services and Premium Support (as applicable), which supersedes any prior or contemporaneous understandings, oral or written, and all other communications between the parties. You acknowledge that you have not relied on the availability of any future version of the Software or any future product in executing this Agreement. Further, this Agreement may not be amended except by a writing signed by both parties. Any inconsistent terms on Purchase Orders or other documents or portals regarding the Software, Professional Services or Premium Support provided under this Agreement issued by you at any time, are for your internal use only, and any provisions contained in any such document shall have no effect whatsoever upon this Agreement. This Agreement may be executed via electronic signature. (B) The Software may include third party software components (collectively, Third Party Dependencies) including programs that are available under either their own license, or an open source or free software license (each a Third Party License) and distributed, embedded or bundled with the Software or recommended in connection with the Software's installation and use. Third Party Licenses are typically found in a readme file in the Software or accompanying the Software and/or hardware. This EULA does not alter any rights or obligations Licensee may have under Third Party Licenses. Third Party Dependencies are provided AS IS and notwithstanding anything to the contrary, the Disclaimer of Warranties and Limitation of Liability provisions of this EULA shall apply to Third Party Dependencies. (C) A party is not liable for non-performance of obligations under this Agreement, if the non-performance is caused by events or conditions beyond that party's control, and the party gives prompt notice and makes all reasonable efforts to perform. In no event will this provision affect a party's obligation to make payments under this Agreement. (D) You agree that we may identify you as a customer of the Software and display your company name and/or logo (Customer Marks) on our website, in press releases and in our published marketing materials, solely in connection with the Software and such identification. We will comply with any reasonable trademark usage guidelines you provide to us in connection with Customer Marks. You retain all title in and to Customer Marks, and all goodwill developed from such use shall be solely for your benefit. (E) All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. We can assign, novate or otherwise transfer Our rights and obligations under this Agreement to an Affiliate or incorporate an Affiliate as a party to this Agreement or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Our assets or voting securities or for bona fide restructuring purposes. You can assign this Agreement with Our prior knowledge and written consent. (F) This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement shall be brought against any of the parties in the state or federal courts of North Carolina. The application of Uniform Computer Information Transactions Act (UCITA), the Uniform Commercial Code (UCC) and the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. (G) The waiver or failure of a party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. (H) If you are a branch or agency of the U.S. Government, use, duplication or disclosure of the Software is subject to the restrictions set forth in this Agreement except that this Agreement shall be governed by federal law. Any additional rights or changes desired by the U.S. Government shall be negotiated with us consistent with this Agreement. (I) Each party acknowledges its obligation to comply with all applicable laws, rules, statutes and regulations, including specifically but not limited to export laws including Bureau of Export Administration restrictions and anti-corruption legislation. Each party warrants that, to the best of its knowledge no money or other consideration of any kind paid or payable under this Agreement or by separate agreement is, has been or will be used for unlawful purposes, including purposes violating anti-corruption laws, including making or causing to be made payments to any employee of either party or anyone acting on their behalf to assist in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage. (J) We are an independent contractor, and our personnel are not and shall not be considered employees or agents of your company for any purpose whatsoever.
(14) Definitions. (A) Affiliates means entities, regardless of corporate status, controlled by, controlling or under common control with a party, respectively, or officers, directors, shareholders, employees or agents of any of the foregoing. (B) Application means any application, program or other software that you develop using the Software. An Application must represent a significant functional and value enhancement to the Software. (C) Authorized User means one named person, employee, contractor or temporary worker authorized to use the Software for personal use or while performing duties within the scope of their employment or assignment. (D) Channel Partner means an entity that CDATA has authorized as a reseller, systems integrator or partner of the Software. (E) Core means a core of a CPU made up of an independent processor combined onto a single integrated circuit or silicon chip, in both virtualized and/or non-virtualized environments, and regardless of whether used in a Production or Non-Production environment. (F) Desktop/Workstation means a single physical machine, including but not limited to a personal computer, workstation, laptop computer, desktop computer or mobile device, specifically excluding a Server, on which the Software is loaded or executed, that is operated, either attended or via remote access, by one person at a time, and cannot be used by more than one person, directly or indirectly, simultaneously. (G) Developer means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is actively using the Software at any given time, designated by you to do any of the following: (i) build, compile, assemble, test or otherwise cause to be executed any application programs that rely on the Software as a component; (ii) use or execute any Software programs for development, testing, or support purposes; (iii) package or otherwise prepare Software components for redistribution as part of another program or application; or (iv) have possession of any Software resources or files for any purposes other than archiving. (H) Instance means a loaded operating system running either on a physical computer or within a virtual environment. Each virtual environment on a physical computer is deemed an instance. (I) Intellectual Property Rights means worldwide common law and statutory rights associated with (i) patents and patent applications; (ii) works of authorship, including mask work rights, copyrights, copyright applications, copyright registrations and moral rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) all rights to registered and common law trademarks, trade names, trade dress, and service marks; and (v) other proprietary rights relating to intangible intellectual property (including but not limited to designs, design rights, source codes, proprietary material, know-how, ideas, concepts, methods, techniques, rights in databases and all other intellectual property rights and rights of a similar character whether registered or capable of registration). (J) Licensee means the end customer that has purchased the Software either directly from CDATA or through a Channel Partner. (K) Non-Commercial means any use of the Software which (i) is not undertaken for profit; (ii) is not intended to produce software, works, services, or data for commercial use; or (iii) is neither conducted, or funded, by a person or an entity engaged in the commercial use, application, development or exploitation of works similar to the Software. (L) Non-Production means a non-operational environment into which the Software may be installed, which is not processing live data, which is not running any of your operations and which has not been deployed to permit any users to access live data. Non-Production environments include development, quality assurance and test environments. (M) Order Form means any the invoice and/or other purchasing documentation or order acknowledgment issued by CDATA or Channel Partner. (N) Perpetual means the licensing business model whereby Licensee or Channel Partner, as applicable, pays CDATA a one-time license fee for use of the version of the Software, as originally delivered to Licensee, in perpetuity. (O) Production means an operational environment which is processing live data which has been deployed so that the intended users of the environment are able to access the live data. Production environments include disaster recovery, failover, and high availability environments. (P) Professional Services means consulting, development or training services provided by Us remotely via phone or the Internet. (Q) Server means a physical or virtual machine, which may be limited by a certain number of Cores as set forth in an Order Form, which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access. (R) Site means the single physical location that corresponds to a single physical mailing address, where your Developers are licensed to use the Software as designated in an Order Form. (S) Software means the software and corresponding licenses as more particularly described in the Order Form, and any associated guides and manuals (Documentation) provided by CDATA hereunder. (T) Subscription means the business model whereby Licensee or Channel Partner, as applicable, pays CDATA a fee for use of the Software for a specified term.
(15) License Types. The Software is offered in the following license types. The following license types may also be available as Site, team or enterprise licenses if noted on the Order Form. For the avoidance of doubt, if the license type listed below is not indicated on your Order Form then it does not apply to your purchase.
(15.1) Trial License. We may from time to time, permit you to register for a free trial of certain Software at our website. On the Effective Date, we grant you a free-of-charge, non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Authorized User to install and use one (1) copy of the Software solely for internal Non-Production, Non-Commercial purposes to evaluate the Software to determine whether to purchase a license to the Software. You may not download more than one (1) copy of the Software unless otherwise authorized by us. You may not use the Software for any other purpose. You may only use the Software for thirty (30) days from the Effective Date, unless otherwise specified by us in the Order Form (Trial Period). Unless you pay the applicable fee for the Software, the Software may become inoperable and, in any event, your right to use Software automatically expires at the end of the Trial Period. We may terminate your license to the trial version of the Software upon written notice at any time for any reason and without liability of any kind. If you subsequently license a non-trial version of the Software, your license to the trial version of the Software shall immediately terminate. You may not distribute Applications that use the trial version of the Software as a runtime component.
(15.2) Non-Commercial License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install and use the Software internally solely for Non-Commercial purposes on one (1) Desktop/Workstation.
(15.3) Development License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Developer to install and use the Software internally on any number of Desktop/Workstations or Non-Production Servers owned or controlled by the named Developer for Non-Production purposes. For the avoidance of doubt, you are not granted any rights to distribute or deploy any product, including but not limited to Application(s) which may be developed by or for you under this license. You may reinstall the Software on a different Desktop/Workstation or Non-Production Server provided that the Software is uninstalled from the original Desktop/Workstation or Non-Production Server.
(15.4) Desktop/Workstation License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install and use the Software internally on one (1) Desktop/Workstation for Production or Non-Production purposes. Under this license grant the Software may not be installed or used on a Server. You may reinstall the Software on a different Desktop/Workstations provided that the Software is uninstalled from the original Desktop/Workstations.
(15.5) Server License. During the term and subject to your payment of license fees, we grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install and use the Software internally on one (1) Server, with the number of Cores noted in the Order Form, owned or operated by you for Production or Non-Production purposes. For the purposes of this license grant, you may install and use the Software on one (1) Desktop/Workstation as a substitute for, and not in addition to, one (1) Server. For the avoidance of doubt, you are not granted any rights to distribute or deploy any product, including but not limited to, Application(s) developed under this Server License without obtaining a separate license from us. You may reinstall the Software on a different Server provided that the Software is uninstalled from the original Server.
(16) Product Specific Requirements.
(16.1) BizTalk Standard. You may use the Software solely with Microsoft BizTalk(R) Standard Edition for your internal data processing and computing needs.
(16.2) CDATA Oracle Driver. The CDATA Oracle Driver contains Oracle Instant Client libraries, as defined, redistributed and licensed to you, in compliance with and under the relevant terms of, the Oracle Technology Network License located at https://www.oracle.com/technetwork/licenses/distribution-license-152002.html. You have no right to distribute the Oracle Instant Client libraries or its documentation without express permission from Oracle Corporation. Further, Oracle Corporation is a third-party beneficiary of this Agreement solely as it pertains to the Oracle Instant Client libraries.
(16.3) ADO.NET Providers and CDATA FireDAC Components. (A) Per-Developer License: We grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Developer per license purchased to install and internally use the Software on any number of Desktop/Workstations or Non-Production Servers owned or controlled by the named Developer in order to develop and test Applications. You may reinstall the Software on a different Desktop/Workstations or Non-Production Servers provided that the Software is uninstalled from the original Desktop/Workstations or Non-Production Servers; AND (B) Royalty-Free Distribution License: We grant you a royalty-free, non-assignable, non-sublicensable, non-exclusive, worldwide right and license to distribute compiled desktop or mobile Applications developed by or for you, which use the Software as a run-time component, to internal Desktop/Workstations within your organization or with mobile applications, without owing additional fees to us. (C) Restrictions: For the avoidance of doubt, you may not use or install the Software on a Production Server or distribute Applications outside your organization without purchasing a separate license from us. (D) Termination: If you do not pay renewal Subscription license fees or if either party breaches this Agreement the following occurs: (1) the Per-Developer license grant set forth above continues perpetually; (2) Any sublicenses granted by you to your end users prior to such expiration or termination to use the Software as a run-time component as part of your Application survive; (3) the Royalty Free Distribution license grant above immediately terminates and you will immediately stop developing, distributing or deploying Application(s); and (4) you will not receive any further support services, updates, upgrades or new releases of the Software.
(16.4) DBAmp. Definitions. As used in relation to your license to the DBAmp Software, Licensee means the end customer identified in the Order Form that has purchased the DBAmp Software either directly from CDATA or through a Channel Partner and owns the Production Salesforce Org ID with which the DBAmp Software is associated and its employees and consultants who are authorized to use the Production Salesforce Org ID; and Production Salesforce Org ID means the single Salesforce Org ID enabling the services provided by Salesforce.com for use in an operational environment which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data and is either specifically identified in the Order Form or first linked to the DBAmp Software by the Licensee. License Grant. During the Subscription term and subject to your payment of license fees, CDATA grants Licensee a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to (i) install and use the DBAmp Software in connection with the Production Salesforce Org ID on any number of machines, provided the total Core count of all machines does not exceed the number of Cores specified in the Order Form; and (ii) use the DBAmp Software in connection with any sandbox instances of the Production Salesforce Org ID. For the avoidance of doubt, the DBAmp Software may not be transferred to or used with any other Production Salesforce Org ID other than the one to which it is originally associated.
(16.5) ArcESB. Licensee may install and use the ArcESB Software solely on the number of Servers in the Order Form. Licensee may use the ArcESB Software solely with the number of connections or partners identified in the Order Form (as applicable). The ArcESB Software may not be used by an EDI Network Provider, VAN or a managed service provider, or any other service bureau, to process and/or transmit data for third parties as a service.
(17) IF YOU ARE A LICENSEE IN JAPAN, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FOLLOWING TERMS APPLY TO YOU: (A) Contracting Party. All references to CDATA, us, our or we refers to CData Software Japan, LLC. (B) Translated Agreement. If the laws of Japan require that contracts be in the local language in order to be enforceable, the version of this Agreement that shall govern is the translated version of this Agreement. (C) Compliance with The Japan Protection of Personal Information Act. (1) Personal Customer Data. You and CDATA may have access to or need to use an end-user's private, confidential information or data pertaining to a specific person in the course of delivering, marketing, selling, or supporting the Software, including without limitation, a person's e-mail address, name, mailing address, telephone number, social security number, credit card number, or persistent identifier (such as a customer number held in a cookie), in each case which is such person's individually identifiable information (Private Customer Data) that is subject to the Japan Protection of Personal Information Act No. 57 of 2003 as amended (the Act). Private Customer Data also includes information that can, together with the other information supplied to or collected by you or us, identify a specific individual, even if such information cannot, by itself, identify a specific individual. Each party acknowledges that its use, access and disclosure of Private Customer Data is subject to the Act. Each party agrees that it will comply with the Act and its own privacy policies. (2) Data Safeguards. Each party will implement and maintain such safeguards as required by the Act for the protection of Private Customer Data (Data Safeguards). In the event such party discovers or is notified of a breach or potential breach of such party's security related to Private Customer Data, such party will immediately (i) notify the other party's account manager or other person in charge of managing the relationship between the parties; (ii) investigate the effects of the breach or potential breach using commercially reasonable efforts; and (iii) take such actions as are required by the Act in an effort to prevent the breach or potential breach from recurring and in an effort to remedy the breach. You shall permit persons reasonably designated by us, and reasonably acceptable to you, to review, during normal business hours, and with reasonable prior notice, your security procedures for the protection of Private Customer Data, including, without limitation, observing operations, reviewing documents and other materials and interviewing your relevant personnel, in each case to the extent necessary to satisfy the requirements of the Act and provided that we do not unduly interfere with your operations, and provided further that your employee accompanies the designated reviewer at all times. The designated reviewer, upon request, shall be obligated to sign a non-disclosure and confidentiality agreement with you prior to conducting any review. (3) Liability for Breach of Data Protection Policies. Notwithstanding any other provision of this Agreement, provided that you have taken such steps as are necessary or appropriate to ensure that Private Customer Data is used in accordance with the Act, to the extent permitted under applicable law, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES DUE TO THE OTHER PARTY'S VIOLATION OR BREACH OF THE ACT OR OF SUCH PARTY'S OWN DATA PROTECTION PRIVACY POLICIES AND DATA SAFEGUARDS. (D) Governing Law. This Agreement, and all disputes arising out of or relating to this Agreement, shall be governed by, and construed and interpreted in accordance with, the laws of Japan, without regard to conflicts of laws principles of Japan or any other jurisdiction. The Parties hereby submit to the exclusive jurisdiction of the Tokyo District Courts in relation to any dispute arising in connection with this Agreement. (E) Elimination of Anti-social Forces. Both parties represent that, as of the Effective Date and during the term of this Agreement: (i) Each party itself, its directors, officers, employees engaging in management, persons or entities which substantially hold control over it, or any equivalent thereof (collectively Party or its Concerned Parties) is not and has not been during the past five (5) years a Boryokudan (crimimal syndicatee), Boryokudan-in (member of Boryokudan), Boryokudan-kankei-kigyo (Boryokudan-related company), Sokaiya (corporate racketeers), Shakaiundohyobogoro, Tokusyu-chino-boryokusyudan or any equivalent or a member of any equivalent (collectively, Anti-social Forces); (ii) the Party or its Concerned Parties do not and will not have any socially disapproved relationship with Anti-Social Forces; (iii) The Party or its Concerned Parties have not supplied any funds or provided any benefits to Anti-Social Forces and have not had any relationship with persons or entities which have supplied any funds or provided any benefits to Anti-Social Forces; (iv) the Party has not let the Anti-Social Forces use its name to enter into an agreement; and (v) the Party will not engage in the following acts against the other Party (which includes such Parties' end-users) by itself or using any third party: (a) make demand using violence; (b) make unjustified demands in excess of legal liability; (c) behave threateningly or act violently in the course of transactions; (d) obstruct the other Party's business or damage the other Party's credibility by spreading false information, or using fraudulent means or force; or (e) any equivalent of the above. If we request a report of matters represented herein, you will make best efforts to provide us with such report. Either Party may terminate this Agreement upon written notice of termination to the other Party without any prior demand, if such Party finds that the other Party has violated the representation herein. Neither Party will be liable against the other Party for any damages arising from termination due to the other Party's violation of this Section.
Last Revised: May 25, 2021