This VoltDB Developer Edition License Agreement (the Agreement), effective as of the date Developer downloads the Software (the Effective Date), is entered into between VoltDB, Inc., a Delaware corporation, with a principal place of business at 209 Burlington Road, Suite 203, Bedford, MA 01730, USA (Licensor) and the licensee identified in the Order that pertains to this Software (Developer). The parties agree as follows:
Developer’s Environment means the internal information and computing technology platform that Developer uses in the operation of its own business.
Developer Products means software applications developed by or on behalf of Developer or branded with Developer brands, logos, trademarks, and/or trade name and distributed or made accessible to third parties in the course of Developer’s business.
Documentation means the user guide, help information and/or other documentation generally provided by Licensor to licensees who enter into a development license with respect to the Software.
Software means VoltDB Code and, if any, Third Party Code (as such term is defined herein).
Term means the period of time commencing on the Effective Date and expiring upon the termination of this Agreement pursuant to Section 10.
VoltDB Code means Licensor’s proprietary computer programs and files that are intentionally delivered to Developer under this Agreement for the use and purposes specified herein.
2. INTERNAL USE LICENSE.
2.1 Software. Subject to all terms and conditions in this Agreement, Licensor grants to Developer a nonexclusive, nontransferable, nonsublicenseable right and license to copy, modify, display, perform and otherwise use the Software and Documentation internally, during the Term, solely for purposes of non-productive review, testing, evaluation, adaptation and integration with Developer’s Environment or Developer Products (the “License”), but not for productive use or for purposes of further distribution, licensing or sale, unless and until Developer enters into a separate written agreement with Licensor that expressly authorizes such additional uses and activities.
2.2 Limitations. Developer agrees that its use of the Software shall comply with all other limitations, prohibitions and conditions set forth in this Agreement or, with respect to Third Party Code, any applicable third-party license agreements (as further provided in Section 6.4).
2.3 License Control. Developer acknowledges that the Software may contain code or require license keys that detect or prevent unauthorized use of, or disable, the Software.
2.4 Support. Developer acknowledges and agrees that this free development License does not include, and Developer shall not be entitled to receive, any support, maintenance or other services from Licensor.
Upon reasonable advance written notice, Licensor shall have the right to audit Developer’s use of the Software to verify Developer’s compliance with this Agreement. Developer shall make its systems and all applicable books, records and transaction logs available for such inspection during normal business hours at Developer’s principal place of business. Any audit shall be at Licensor’s expense, unless it discloses any material breach or misconduct by Developer, in which case Developer shall reimburse Licensor for the reasonable expenses of the audit.
4.1 Fees. Developer is not obligated to pay any fees or charges to Licensor, unless set forth in a separate agreement.
4.2 Taxes. If any federal, state, local or foreign taxes, duties, tariffs, levies, withholdings or similar assessments (including without limitation, sales taxes, use taxes and value added taxes) become due as a result of the license and transfer of the Software and Documentation to Developer hereunder, Developer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Licensor’s net income.
5.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information of Licensor (or any of its licensors or customers) that is disclosed by or for Licensor or that is otherwise learned or accessed by Developer, but not including any information that Developer can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any separate obligation to Licensor, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information.
5.2 Confidentiality. Except for the specific rights granted by this Agreement, Developer shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care, and appropriate administrative, technical and physical safeguards, to protect the Confidential Information. Developer may only disclose Confidential Information to its employees and contractors who have a need to know for the purposes of this Agreement and who are bound by confidentiality obligations that are at least as protective as the provisions herein. Developer shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at Licensor’s request at any other time), Developer shall return all tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom to the extent they contain such Confidential Information.
6. PROPRIETARY RIGHTS.
6.1 Restrictions. Except as specifically permitted in this Agreement, Developer shall not directly or indirectly: (a) use any Confidential Information to create any software or documentation that is similar to or competitive with any Software or Documentation; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Software (except and only to the extent that these restrictions are expressly prohibited by applicable statutory law); (c) encumber, loan, lease, rent, sublicense, transfer, or distribute any Software or Documentation, or make these accessible to any third party, or use them for the benefit of any third party (e.g., service bureau arrangement); (d) copy, create derivative works of or otherwise modify any Software or Documentation; (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software (or any product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction; or (f) permit any third party to do any of the foregoing. Developer will promptly notify Licensor in writing of any unauthorized use, reproduction or distribution of any Software or Documentation.
6.2 No Implied Licenses. Except for the limited License expressly granted hereunder, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Licensor (and its licensors) shall retain all rights, title and interests (including all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights) in and to the Software and Documentation. Developer agrees not to take any action inconsistent with such ownership.
6.3 Markings. Developer shall not (and shall not permit any third party to) alter, obscure or remove any patent, trademark or other proprietary or legal notice deployed by or contained on any Software, Documentation or packaging.
6.4 Third Party Code. The VoltDB Code may operate, interface or be delivered with software or other technology that is identified in the Documentation (“Third Party Code”) and licensed from and owned by third parties (“Third Party Licensors”). Developer agrees that (a) it will use Third Party Code in accordance with this Agreement (unless different terms are specified in the applicable license set forth or referenced in the Documentation, in which case Developer will comply with those terms with respect to the covered code), (b) no Third Party Licensor makes any representation or warranty to Developer concerning the Software, (c) no Third Party Licensor will have any obligation or liability to Developer as a result of this Agreement or Developer’s use of the Software, and (d) Licensor will have no obligation or liability to Developer as a result of Developer’s use of the Third Party Code. Upon Developer’s specific written request received during the term of this Agreement, Licensor will make available the source code for Third Party Code, but only if such source code was made available to VoltDB and doing so is required by the applicable license.
7. WARRANTY DISCLAIMERS.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY DEVELOPER PRODUCT OR WITH DEVELOPER’S ENVIRONMENT OR OTHERWISE MEET DEVELOPER’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITSELF AND ITS LICENSORS, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
8.1 Breach or Misuse. Developer agrees to defend, indemnify and hold harmless Licensor against any claim by a third party that arises from or relates to Developer Products, Developer’s Environment or Developer’s breach of this Agreement or violation of law; provided that Licensor promptly gives Developer written notice thereof and reasonable cooperation, information, and assistance in connection therewith.
8.2 No Licensor Liability. Licensor shall have no liability to Developer with respect to any actual or alleged violation of intellectual property rights by the Software or any part thereof or by its use or operation.
9. LIMITATION OF LIABILITY.
LICENSOR (AND ITS LICENSORS) SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ANY INDEMNIFICATION), REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (C) DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF A COURT DETERMINES THAT ANY OF THE FOREGOING LIMITATIONS ARE INVALID OR UNENFORCEABLE, THEN IN NO CASE AND UNDER NO LEGAL THEORY SHALL LICENSOR BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR AN AMOUNT IN EXCESS OF $100 IN TOTAL. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10. TERM AND TERMINATION.
10.1 Term. This Agreement shall commence on the Effective Date and continue in effect until terminated by either party, acting in its discretion, giving five (5) calendar days’ notice to the other party.
10.2 Termination; Suspension. This Agreement may be terminated by either party, or Developer’s right to use and access the Software may be suspended, immediately upon notice, if the other party materially breaches a provision of this Agreement.
10.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Developer shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media, and (c) the provisions of Sections 5 (Confidentiality), 6 (Proprietary Rights), 7 (Warranty Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3 shall also survive.
11. GENERAL PROVISIONS.
11.1 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. For clarification, Developer has no rights under any other agreements or terms offered by Licensor unless and until the parties enter into a separate agreement embodying such terms. Terms set forth in any Developer’s document that are in addition to or at variance with the terms of this Agreement are specifically waived by Developer. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought, except the terms of this Agreement may be modified by Licensor from time to time so long as they do not result in a diminution of the rights granted hereunder. The most recent revision of this Agreement will be posted on http://voltdb.com/developer-edition-license-agreement. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
11.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, U.S. laws, rules and regulations shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
11.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Developer agrees that, in the event of any breach or threatened breach of Sections 2.1, 5 or 6, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered, or sent via confirmed electronic mail, or sent via recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified above, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
11.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Developer, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Developer’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
11.6 Government License. If any user of the Software or Documentation is a department, agency or other entity of the US Government, then use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
11.7 Acknowledgment. Developer acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the Developer before issuing this License, and (e) issuance of this License does not constitute general publication of the Software, Documentation or Confidential Information.
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