dbX Community Edition IMPORTANT -- PLEASE READ CAREFULLY This XtremeData Community Edition Software License Agreement (the "Agreement") is a legal agreement between XtremeData, Inc., with a principal office at 999 N Plaza, Drive, Schaumburg, Illinois and you and the organization on whose behalf you are accessing this Agreement (the "Customer") and governs Customer's access to, downloading of, and use of any and all components, associated media, printed materials, documentation, and programming accessed via the DBX Community Edition software (the "Software"). By clicking on the "Agree" button set forth below, or downloading, installing, or using the Software, you are representing to XtremeData, Inc. that (i) you are authorized to legally bind the Customer, and (ii) you are agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the Software. If you do not have authority to agree to the terms of this Agreement, or do not accept the terms of this Agreement, click on the "Cancel" button or discontinue your efforts to download the Software, and the registration, download and/or installation process will not continue. In such event, no access to, or authorization to download or use the Software, is granted by XtremeData. XtremeData and Customer enter into this Agreement and this Agreement shall become effective on the date on which Customer clicks on the "Agree" button described above or downloads, installs or uses the Software, whichever occurs first (the "Effective Date"). NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows: 1.0 DEFINITIONS 1.1 "Equipment" means the Customer owned storage devices, systems, or central processing units that the Software was designed to run on or with. 1.2 "Software" means the dbX Community Edition software available for download by Customer from a designated XtremeData web site. 1.3 "Node" means each motherboard on a laptop, desktop or server, except that a stand-alone 2U rack server consisting of two (2) or less motherboards is counted as a single node. 2.0 PURPOSE AND SCOPE 2.1 Customer desires to use the Software for test and development purposes in non-production environments only or production use on a single Node. The Software is available from XtremeData to Customer at no charge, but only after it agrees to the license terms as contained in this Agreement. 2.2 Under this Agreement, Customer may use the Software on each item of Equipment it owns. 3.0 LICENSE TERMS 3.1 XtremeData grants Customer a license to use the Software on the Equipment commencing on download for as long as Customer complies with this Agreement. The foregoing licenses shall be non-exclusive, non-transferable, and non-sublicensable and subject to the restriction that the Software be used solely on or in connection with the Equipment for which it was licensed. XtremeData may terminate licenses, without liability, if Customer breaches this Agreement and fails to cure within thirty (30) days after receipt of XtremeData's written notice thereof. Upon termination, Customer shall cease all use and return or certify destruction of Software (including copies) to XtremeData. Customer shall not, without XtremeData's prior written consent, use Software in a service bureau capacity, or copy, provide, disclose or otherwise make available Software in any form to anyone other than Customer's agents, employees, consultants or independent contractors ("Personnel"), who shall use Software solely for Customer's internal business purposes in a manner consistent with this Agreement. Customer shall be fully responsible to XtremeData for the compliance of Customer's personnel herewith. 3.2 Software is licensed only. No title to, or ownership of, the Software is transferred to Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies, including but not limited to partial, physical or electronic copies, of the Software. Neither Customer nor its personnel shall modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software without XtremeData's prior written consent. 3.3 Customer agrees not to: (i) use the Software for any commercial or production purposes, or use the Software for any purpose except for general evaluation and prototype development or production use on a single node; (ii) use any application it develops with the Software for any commercial or production purposes without securing an appropriate license from XtremeData; 4.0 DELIVERY AND INSTALLATION 4.1 Delivery of the Software is by download only. 4.2 XtremeData shall, as necessary, provide Customer with information to download, install and use the Software. 5.0 TERMINATION 5.1 If Customer fails to perform any of its material covenants, obligations or responsibilities under this Agreement, Customer shall be in default and breach of this Agreement, and XtremeData shall, in addition to any other remedies, which may be available to XtremeData under this Agreement, in law or equity, in its sole discretion, have the right to terminate this Agreement and any or all related license(s) granted to Customer by written notice thereto, with such termination to be effective immediately: 6.0 NO WARRANTY OR SUPPORT 6.1 XTREMEDATA PROVIDES ALL SOFTWARE HEREUNDER ON AN "AS-IS," "WHERE IS" BASIS, AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. 6.2 No representation or other affirmation of fact, including but not limited to statement regarding capacity, suitability for use or performance of Software, whether made by XtremeData employees or otherwise, shall be deemed to be a warranty for any purpose or give rise to any liability of XtremeData whatsoever unless contained in this Agreement. 6.3 Inconsistencies in the Software setup, Customer's environment, access rights, software customization, availability of usage information within the software asset, and similar issues, could result in the collection and reporting of erroneous information. XtremeData shall not be liable for any errors or omissions in the data collected or reported by the Software. 6.4 XtremeData does not provide support for this Software. No technical support, phone support, updates, bug fixes or any other type of support is provided for this Software. 7.0. NO INDEMNIFICATION 7.1 XtremeData shall have no liability to Customer for any action (and all prior related claims) brought by or against Customer alleging that Customer's use or other disposition of any Software infringes any patent, copyright, trade secret or other intellectual property right. In event of such an action, XtremeData retains the right to terminate this Agreement and take possession of the Software. 8.0 LIMITATION OF LIABILITY 8.1 EXTREMEDATA'S AND ITS SUPPLIER'S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR A CLAIM OF DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY OR ANY OTHER CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY IN TORT, THAT ARISES OUT OF OR IN CONNECTION WITH SOFTWARE OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY XTREMEDATA'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US$50,000. IN NO EVENT SHALL XTREMEDATA OR ITS SUPPLIERS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NEITHER PARTY SHALL BRING ANY CLAIM ARISING OUT OF THE SOFTWARE OR SERVICES PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER SUCH CLAIM HAS ACCRUED. 8.2 IF CUSTOMER USES SOFTWARE FOR ANY PURPOSE EXCEPT AS STATED HEREIN OR OTHERWISE AGREED IN WRITING, XTREMEDATA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO EQUIPMENT OR DATA, OR FINANCIAL LOSSES, RESULTING FROM SUCH USE. 9.0 GENERAL 9.1 Assignment - Customer shall not assign any right or interest hereunder nor delegate any work or other obligation to be performed hereunder to any entity other than its corporate parent, or a division or wholly or majority owned subsidiary of the party or its corporate parent. Any such action in violation of the foregoing shall be void. 9.2 Entire Agreement - The terms contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral, written or otherwise recorded. 9.3 Compliance with Export Control Laws - Customer shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances. 9.4 Governing Law - This Agreement shall be governed by the laws of the state of Illinois. The U. N. Convention on Contracts for the International Sale of Goods shall not apply. 9.5 Notices - Except for routine communications, all other notices required or permitted hereunder, including but not limited to notices of default or breach, shall be signed by an authorized representative of the sender. Such notices shall be deemed to have been received (i) when hand delivered to such individuals by a representative of the sender; (ii) three (3) days after having been sent postage prepaid, by registered or certified first class mail, return receipt requested; (iii) when sent by electronic transmission, with written confirmation by the method of transmission; or (iv) one (1) day after deposit with an overnight carrier, with written verification of delivery. 9.6 No Waiver - No omission or delay by either party in requiring the other party to fulfill its obligations hereunder shall be deemed to constitute a waiver of (i) the right to require the fulfillment of any other obligation hereunder; or (ii) any remedy that may be available hereunder. 9.7 Independent Contractors - The parties shall act as independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint ventures or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without an authenticated record indicating the prior approval of the other party. 9.8 Separability - If any provision of this Agreement shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions. |
