
CompleteDB, LLC Software Evaluation License Agreement
THESE TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT. PLEASE READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, OBLIGATIONS AND REMEDIES.
BY CHECKING THE “I ACCEPT” BOX YOU (“YOU”) SIGNIFY THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF THIS EVALUATION LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE “I ACCEPT” BOX AND DO NOT DOWNLOAD OR INSTALL THE SOFTWARE.
1. LIMITED LICENSE GRANT. Subject to the terms of this Agreement CompleteDB LLC (“CompleteDB”) hereby grants you a limited one-time, non-exclusive, non-transferable, non-sublicensable right and license to use the CompleteDB Embedded binaries, source code, samples, documentation, and other files included in the download package that are not available for general commercial distribution (collectively “Software”) solely for internal testing and evaluation of the commercial viability of the Software, in a non-production environment for a period of SIXTY (60) DAYS from your download of the Software (“Evaluation Period”). You may download, install, read, execute and run a single copy of the Software on a single computer hard disk with a single display monitor at a single location within your firm or operation or you may install a single copy of the Software on a single storage device, such as a network server, used only to install or run software on your computers over an internal network, provided however, that only one (1) separate dedicated computer may utilize the Software that is installed or run from the storage device. The foregoing license for the Software may not be shared by multiple users or used concurrently on different computers, unless additional license is purchased from CompleteDB. During the Evaluation Period you may retain an additional copy of the Software solely for back-up purposes. Please note, the Software may include third-party components provided under terms and conditions, which are different from those of this Agreement. These third-party components and their licensing terms and conditions are set forth in the notices.txt file included in the Software download package. All rights not expressly granted are hereby reserved by CompleteDB. There are no implied licenses to any of the Software or other Intellectual Property rights of CompleteDB hereunder.
2. RESTRICTIONS; INTERNAL EVALUATION USE ONLY: Your use of the Software is limited solely to internal testing and evaluation of the commercial viability of the Software in a non-production environment. You must acquire a production license for the Software from CompleteDB in order to deploy the Software in a production environment, if and when it becomes available from CompleteDB. For the avoidance of doubt, provision of the Software hereunder shall not create any obligation for CompleteDB to develop, productize, support, repair, offer for sale or in any other way provide or develop any products or services to you or any other party. This Agreement does not give rise to any intention, commitment or obligation of CompleteDB to enter into any kind of business relationship with you. Any business relationship between CompleteDB and you, if any, must be governed by a separate written definitive agreement pursuant to which the parties intend to be legally bound.
You hereby represent, warrant and covenant that you shall not:
(i) reverse compile, reverse engineer, decipher, disassemble, unobfuscate, reformat, or otherwise seek to duplicate the performance characteristics of the Software or attempt to read or make readable the object code or source code or the underlying ideas, algorithms, structure or organization of the Software, in whole or in part;
(ii) modify the Software, merge it into another computer program, or otherwise create any derivative work based on the Software; (iii) rent, assign, lease, sell, convey, sublicense, copy, distribute, disseminate, disclose, display, timeshare, operate a service bureau with, use for the benefit of a third party, grant a security interest in, or otherwise transfer any rights in the Software;
(iv) remove or alter any marks or proprietary notices or labels contained in the Software;
(v) copy or translate the Software into any readable or printed form;
(vi) use the Software in production deployments of any kind;
(vii) use the Software for commercial purposes, including but not limited to making it available in any way to third parties;
(viii) use the Software in Open Source developments or deployments of any kind;
(ix) use the Software in any manner that violates any Intellectual Property or other rights of any third party;
(x) use the Software for any illegal or injurious purposes or in any manner that violates any applicable international, federal, state or local law or regulation; and
(xi) exploit or use the Software in any manner except as expressly permitted under this Agreement.
3. INTELLECTUAL PROPERTY RIGHTS. The Software consists of original works of authorship and is treated and developed as trade secrets at CompleteDB or its supplier’s expense. All right, title and interest, including all Intellectual Property rights in the Software or any part thereof, including any future modifications and derivatives thereof in any form or medium, now existing or hereafter devised, are and shall remain the sole and exclusive property of CompleteDB or its suppliers, and you are not by reason of this Agreement acquiring any rights therein, other than the limited use rights expressly provided in this Agreement. “Intellectual Property” means rights in and to patents, trade marks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered and including applications for registration of any of them), know-how, moral rights, trade secrets, Confidential Information, all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world now existing or hereafter. CompleteDB shall not acquire any rights, including any Intellectual Property rights in any content, data or information used by you in conjunction with the Software. You shall be solely responsible for all content, data or information that you use in connection with the Software. You acknowledge and agree that the use of all content, data or information with the Software with is at your own risk and you will be solely responsible for any consequences of such use including any damage to any party resulting therefrom.
4. FEEDBACK. CompleteDB welcomes ideas, suggestions and feedback related to the Software and any other aspects of CompleteDB’s business (“Feedback”). Provision of Feedback is entirely voluntary. If you elect to provide such Feedback, you shall and you hereby assign to CompleteDB all title and interest, including Intellectual Property rights in such Feedback and CompleteDB may use it for its business purposes in its discretion without any payment or accounting to you. Such Feedback is deemed part of CompleteDB’s Confidential Information. For the avoidance of doubt, nothing in this Section 4 grants any ownership rights to CompleteDB in any of your content, products, services or business.
5. CONFIDENTIALITY. “Confidential Information” means any information that is non-public, confidential or proprietary in nature, whether in oral, written, demonstrative, graphic, electronic, machine readable, or in other tangible or intangible form obtained by the receiving party (“Receiving Party”) that relates to past, present or future products, services, marketing, research, development or business activities of the disclosing party (“Disclosing Party”), its affiliates or their respective employees, customers, suppliers or contractors, including, without limitation, the Software, Intellectual Property, benchmark test results and statistics, pricing, methods, methodologies, processes, software programs, databases, data models and techniques, present and future inventions, discoveries, developments, trade secrets, processes, formulas, ideas, concepts, know-how, designs, information technology, documentation including technical and functional specifications, the terms and existence of this Agreement or related information. The Receiving Party shall preserve the Confidential Information of the Disclosing Party in confidence. The Receiving Party shall maintain, at a minimum, the same precautions and standard of care to which a reasonable person in such business would use to safeguard Confidential Information of its own and its clients or suppliers, but in no event less than reasonable standard of care to effect and maintain adequate physical and electronic security measures to safeguard the Confidential Information from unauthorized access, use and misappropriation. The Receiving Party shall notify the Disclosing Party immediately of any unauthorized use, copying or disclosure of the Confidential Information of which it becomes aware (including any unauthorized use, copying or disclosure) and shall provide all reasonable assistance to stop such unauthorized use or disclosure. The Receiving Party shall not, without first obtaining the Disclosing Party’s written consent, disclose to any person, firm or organization, or use for its own benefit, any such Confidential Information, both during the Evaluation Period and thereafter. If Confidential Information is required to be disclosed by law, regulation or court order by the Receiving Party, such disclosure shall be permitted to the extent legally required, provided that to the extent legally permissible, the Disclosing Party is given reasonable prior notice to enable it to seek a protective order or confidential treatment prior to such disclosure. Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, (ii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who is not bound by a confidentiality agreement with the Disclosing Party, (iii) was known to the Receiving Party or in its possession prior to the date of disclosure by the Disclosing Party as demonstrated by competent evidence, or (iv) is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information, as demonstrated by competent evidence. The Disclosing Party shall have the right, but not the obligation, to prosecute and conduct all proceedings or actions involving its Confidential Information or Intellectual Property and to take any actions that it may deem proper or necessary for the protection thereof. Upon The Disclosing Party’s request, the Receiving Party shall cooperate fully in connection with any such actions.
6. NO SUPPORT. This Agreement does not entitle you to any support, upgrades, patches, enhancements, or fixes for the Software.
8. INDEMNITY. You shall, at your sole cost and expense, indemnify, defend and hold harmless CompleteDB, its affiliates and its and their respective officers, directors, employees, consultants, agents and providers from and against all losses, liabilities, costs, damages and expenses, including but not limited to reasonable legal fees and expenses, incurred or suffered by any of the foregoing CompleteDB indemnitees as a result of any claims (including informal claims), actions or demands (i) of infringement or violation of Intellectual Property rights arising out of or in connection with unauthorized use of the Software by you, (ii) arising out of breach of your obligations under this Agreement, or (iii) arising out of or in connection with your systems, products or services or any content, data or information or other aspects of your business.
9. DISCLAIMERS. The Software is a pre-production release and may not be at the level of performance, compatibility or safety of generally commercially available CompleteDB products. You understand and agree that CompleteDB makes no representations or warranties regarding use of the Software and you shall have sole responsibility for adequate protection and backup of your data or equipment used in connection with the Software and you shall have no claims against CompleteDB for lost data, re-run time, inaccurate input, work delays or lost profits resulting from the use of the Software. To the extent CompleteDB decides, in its sole discretion, to make a commercial version of the Software, the design of the Software my be changed prior to such general commercial availability, without notice, and CompleteDB does not guarantee that compatibility with your system can or will be maintained. Complete DB reserves the right to withdraw the Software from any evaluation testing and never release it as a commercial product. NONE OF COMPLETEDB OR ITS PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES AND SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE (WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED), WARRANTIES OF TITLE OR INFRINGEMENT, WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, OR IMPLIED OBLIGATIONS, WITH RESPECT TO ANY ASPECT OF THE SOFTWARE, OR ANY COMPONENTS THEREOF OR THE RESULTS OBTAINED FROM ITS USE, ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE THEREUPON OR AS TO THE PERFORMANCE THEREOF. NONE OF COMPLETEDB OR ITS PROVIDERS GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SOFTWARE OR ANY COMPONENTS THEREOF OR THAT IT WILL BE ERROR FREE OR FREE FROM COMPUTER VIRUSES OR OTHER INFIRMITY OR CORRUPTION. NONE OF COMPLETEDB OR ITS PROVIDERS SHALL BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN. THE SOFTWARE AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND YOUR USE THEREOF IS AT YOUR OWN RISK. Some jurisdictions do not allow the exclusion of implied warranties therefore, certain of the above exclusions may not apply to you.
10. LIMITATION OF LIABILITY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SOFTWARE OR ANY COMPONENTS THEREOF IS TO STOP USING THEM. IN NO EVENT SHALL COMPLETEDB BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN THE EVENT ANY OF THE FOREGOING LIMITATIONS SHALL NOT BE ALLOWED BY A COURT OF COMPETENT JURISDICTION, COMPLETEDB AND YOU SPECIFICALLY AGREE THAT IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF COMPLETEDB FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE ONE HUNDRED ($100) DOLLARS. THE FOREGOING SHALL NOT LIMIT COMPLETEDB’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. TERMINATION. The Agreement shall immediately terminate at the earliest of (i) the end of the Evaluation Period; (ii) upon your failure to comply with all of the terms of this Agreement; (iii) upon written notice of termination by CompleteDB; or (iv) upon your destruction of the Software and provision of notice of termination to CompleteDB. Upon termination of this Agreement, you shall: (a) promptly terminate all access to the Software and cease any use thereof; (b) not later than thirty (30) days following termination, destroy, and remove from your systems, all versions and copies of the Software including backup material, except to the extent you are required to retain such information to comply with regulatory requirements; (c) not later than thirty (30) days from termination, return, if so directed by CompleteDB, return or destroy all Confidential Information of CompleteDB, whether in tangible or electronic form; and (d) if so requested by CompleteDB certify to CompleteDB, in writing, the accomplishment of the foregoing clauses (a) through (d).
12. EXPORT CONTROL REQUIREMENTS. You agree and acknowledge that the Software and any technical data, provided by CompleteDB under this Agreement are subject to United States laws and regulations, which may restrict or prohibit re-sales or other transfers to other countries and parties. You represent, warrant and covenant that no Software or technical information provided under this Agreement will be exported, transferred, or disclosed contrary to the applicable laws and regulations of the United States, or to any country, entity or other party which is ineligible to receive such items under U.S. laws and regulations, including regulations of the U.S. Department of Commerce or the U.S. Department of the Treasury. You further agree and acknowledge that you shall be solely responsible for (i) complying with applicable U.S. laws and regulations and (ii) monitoring any modifications to them. Solely for information purposes, and without any obligation on the part of CompleteDB to provide additional or updated information, further information about relevant U.S. laws and regulations is typically provided at websites maintained by the U.S. Treasury Department (http://www.ustreas.gov/ofac/) and the U.S. Commerce Department (http://www.bis.doc.gov/). You shall also be solely responsible for (i) complying with applicable laws and regulations of your country which restrict or prohibit exports and (ii) monitoring any modifications to such laws and regulations. Your failure to comply with U.S. foreign trade and export laws and regulations, or those of your country, shall be deemed a material breach of this Agreement. You shall notify CompleteDB immediately upon learning that you exported, transferred or disclosed any CompleteDB product to any country, entity or other party which is ineligible to receive such items under U.S. laws and regulations or those of Licensee's country.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between CompleteDB and you regarding the subject matter hereof, and supersedes all prior discussions, proposals and agreements between them relating thereto. This Agreement may not be amended except in writing signed by an authorized representative of CompleteDB and you.
14. NO ASSIGNMENT. Neither this Agreement nor any of your rights or obligations hereunder may be assigned or delegated by you in whole or in part without CompleteDB 's prior written consent and any assignment to the contrary is null and void and of no legal effect.
15. DISPUTES. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction, as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Further, UCITA whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified shall not apply to this Agreement and is hereby disclaimed. In connection with any litigation between the CompleteDB and you arising out of or relating to this Agreement, both CompleteDB and you consent to the exclusive jurisdiction and venue in New York state courts located in the Rockland County and in the federal courts located in the Southern District of New York.
16. SEVERABILITY. In the event that any court having competent jurisdiction over the interpretation of this Agreement shall finally determine that one or more of the provisions contained in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and, as so limited or restricted, shall remain in full force and effect. In the event that any such provision or provisions shall be deemed wholly unenforceable, such provision shall be deemed deleted from this Agreement, and the remaining provisions shall remain in full force and effect. Any such judicial interpretation requiring limitation or deletion of a provision shall be valid only in the jurisdiction in which such interpretation is made.
17. WAIVER. No failure or delay on the part CompleteDB in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
18. INJUNCTIVE RELIEF. In the event of a breach or threatened breach of the provisions of Section 3 (“Intellectual Property Rights”) or Section 5 (“Confidentiality”), the injured party may have no adequate remedy in money or damages and, accordingly, may seek an injunction or other equitable remedy against such breach. However, nothing herein shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach of a provision of this Agreement.
19. SURVIVAL. Sections 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, and this Section 19 shall survive termination of this Agreement.
20. CONTACT. If you have any questions related to the Software or this Agreement please contact CompleteDB at license@completedb.com
