End User License Agreement
Community Edition and Evaluation End User License Agreement for HarperDB Products
HARPERDB, INC. (“HARPERDB”) LICENSES THIS SOFTWARE PRODUCT TO YOU (“YOU” OR “LICENSEE”) SUBJECT TO THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING AND USING THIS SOFTWARE AND THE ACCOMPANYING DOCUMENTATION (THE “SOFTWARE”). THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD.
THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU, AS EITHER AN INDIVIDUAL OR A SINGLE BUSINESS ENTITY, AND HARPERDB. YOU REPRESENT THAT (I) YOU ARE OVER THE AGE OF EIGHTEEN (18) AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO THESE TERMS. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH HARPERDB RELATING TO THE SOFTWARE.
Agreement to Be Bound
By clicking the “I accept” button or similar electronic indication of acceptance, by executing a written copy of this Agreement, or by installing, copying or otherwise using this Software (“Acceptance”), you agree to be bound by the terms of this Agreement as of the earliest date of Acceptance (the “Effective Date”). If you do not agree with any term or condition of this Agreement, do not download, order, open, install or use the Software.
You agree that, unless otherwise specifically provided herein or agreed by HarperDB in writing, (i) the Software and the Documentation, including the specific design and structure of individual programs and the Software, and any information relating to the Software and Documentation, provided to you by HarperDB, and (ii) any results of your experiences from use of the Software or Documentation, constitute confidential information of HarperDB. You shall permit only authorized users (“Authorized Users”), who possess rightfully obtained license keys, to use the Software or to view the Documentation. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of HarperDB. You agree to implement reasonable security measures to protect such confidential information, but in no event less stringent measures than you would use with your own highly confidential information and without limitation to the foregoing, shall use best efforts to maintain the security of the Software provided to you by HarperDB. You will use your best efforts to cooperate with and assist HarperDB in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
It is expressly understood, acknowledged and agreed that you may provide to HarperDB suggestions, recommendations, comments or feedback regarding the Software, including but not limited to usability, functionality, new features, bug reports and test results (collectively, “Feedback”). If you provide such Feedback to HarperDB, you grant HarperDB a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up right and license to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any HarperDB product, technology, service, specification or other documentation (individually and collectively, “HarperDB Products”). Further, you warrant that your Feedback is not subject to any license terms that would purport to require HarperDB to comply with any additional obligations with respect to any HarperDB Products that incorporate any Feedback. You further agree that we may use any ideas, concepts, know-how, and techniques contained in the Feedback without restriction or accounting.
You agree to:
- Assign a person with overall responsibilities for coordinating activities under this Agreement;
- Bear the risk of loss related to theft or misappropriation; and
- Use reasonable care in the use of the Software and advise us of any problems you encounter.
Grant of License
Subject to the terms and conditions of this Agreement, HarperDB grants to you a non-exclusive, non-transferable license (without the right to sublicense): (i) to use the Software in accordance with the Documentation solely for your internal use, and (ii) to copy Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
Restrictions on Grant
Except as otherwise specifically permitted in this Agreement, you may not: (a) modify or create any derivative works of any Software or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the Software shall not be deemed derivative works); (b) copy the Software except as provided in this Agreement or elsewhere by HarperDB; (c) separate Software, which is licensed as a single product, into its component parts; (d) sublicense or permit simultaneous use of the Software by more than one user; (e) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Product the Software (except to the extent applicable laws specifically prohibit such restriction); (f) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to any Software. You may NOT transfer the Software under any circumstances; (g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product(s); (h) publish any results of benchmark tests run on any Software to a third party without HarperDB prior written consent; or (i) use any Software on a system with more CPUs than the number licensed, by more users than have been licensed, on more computers or computing devices than the number licensed, or by more developers than the number licensed, as applicable.
HarperDB is under no obligation to provide technical or other support under the terms of this license, and provides no assurance, warranty or representation that any errors or discrepancies in the Software will be corrected.
Ownership and Copyright of Software
Title to the Software and all copies thereof remain with HarperDB and/or or its suppliers. The Software is copyrighted and is protected by United States copyright laws and international treaty provisions. Licensee will not remove copyright notices from the Software. Licensee agrees to prevent any unauthorized copying of the Software. Except as expressly provided, HarperDB: (i) does not grant any express or implied right to you under HarperDB patents, copyrights, trademarks, trade secrets, or other intellectual property right, and (ii) reserves all rights not expressly granted to you under this Agreement.
Third Party Products
The Software may contain certain open source software identified at http://www.harperdb.io/open-source. Licensee understands and acknowledges that such open source software is not licensed under the terms of this Agreement and that this Agreement does not grant any right and/or license to such open source software. You shall have only such rights and/or licenses, if any, to use the open source software as set forth in the licenses referenced at http://www.harperdb.io/open-source
Term and Termination
If HarperDB has notified you this is an evaluation of the Software, your license will be valid for the period specified by HarperDB. In addition to any other express termination right, HarperDB may terminate this Agreement for any reason upon written notice.
Upon expiration or earlier termination of this Agreement, the license granted hereunder will terminate, and, without limiting your obligations hereunder, you shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing that the Software and Documentation has been deleted or destroyed.
You shall indemnify, hold harmless, and, at HarperDB’s option, defend HarperDB from and against any losses, claims, allegations, damages, costs, and expenses, including attorneys’ fees, arising from any claim based on your or any Authorized User’s: (i) negligence or willful misconduct; (ii) breach of any provision of this Agreement; (iii) use of the Software or Documentation in violation of any applicable law or industry standard or in a manner not authorized or contemplated by this Agreement; or (iv) use of any version other than the most current version of the Software or Documentation; provided that you may not settle any claim against HarperDB unless such settlement completely and forever releases HarperDB from all liability with respect to such claim or unless HarperDB consents to such settlement, and further provided that HarperDB will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS”, AND HARPERDB DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, HARPERDB EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY, THE SECURITY, AND THE PERFORMANCE OF THE SOFTWARE. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS. A FAILURE BY HARPERDB TO ENFORCE ANY RIGHTS UNDER THIS AGREEMENT SHALL NOT OPERATE AS A WAIVER OF SUCH RIGHTS.
Limitation of Liability
Provision of any Software under this Agreement shall not create any obligation for HarperDB to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide support or develop Software.
HARPERDB’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR INSTALLATION OR USE OF THE SOFTWARE AND DOCUMENTATION SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO HARPERDB BY YOU UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, CLAIMS, OR CAUSES OF ACTION. IN NO EVENT SHALL HARPERDB BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOSS OF DATA, OR LOST PROFITS, EVEN IF HARPERDB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
United States Government Restricted Rights
Each of the Documentation and the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
Governing Law and Choice of Forum
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts located in Denver, Colorado. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.
Export and Other Restrictions
The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US. Further, Licensee may not (for itself or others) (i) use or permit use of the Software in hazardous environments requiring fail‐safe performance, such as in the operation of nuclear facilities, aircraft navigation or aircraft communications systems, air traffic control, life support systems, human implantation, nuclear facilities or systems or weapons systems, or any other application known to you where product failure would lead to loss of life or catastrophic property damage, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage; (ii) permit any Software export, re‐export, download, resale or transfer, directly or indirectly: (x) into (or to a national, resident or government of) any prohibited destination (including Cuba, Iran, North Korea, Sudan or Syria or other countries subject to U.S. trade embargoes imposed by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) from time to time) or other destination for which specific authorization would otherwise be required under the Export Administration Regulations (EAR) administered by the US Department of Commerce’s Bureau of Industry and Security (BIS) or other applicable laws, or (y) to any person identified on the OFAC List of Specially Designated Nationals and Blocked Persons, the BIS Denied Parties List, BIS Entity List or BIS Unverified List (see: http://www.bis.doc.gov/index.php/policy‐guidance/lists‐of‐parties‐of‐concern); or (iii) use the Software for any proliferation or terrorist‐related end‐use. In addition, you acknowledge and agree that you are responsible for compliance with any and all applicable laws relating to the use of the Software, including applicable data privacy laws. Any use in contravention with this provision shall void the license rights granted under this Agreement.
You acknowledge and agree that a breach or threatened breach by you of any of your obligations would cause HarperDB irreparable harm for which monetary damages may not be adequate. Accordingly, you agree that, in the event of such breach or threatened breach, HarperDB will be entitled to equitable relief, including injunctive relief or specific performance, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available.
This Agreement constitutes the complete and exclusive agreement between you and HarperDB with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by you and an authorized representative of HarperDB.
Copyright (C) 2017-2018 HarperDB, Inc., Inc. All rights reserved. HarperDB is a trademark of HarperDB, Inc.
This product is based on a technology that is the subject matter of a pending patent application.