Datomic Pro Edition End-User License Agreement
IMPORTANT - READ CAREFULLY:
This End-User License Agreement (EULA) is a legal agreement between you
(either an individual or a single legal entity) (Licensee) and Metadata Partners, LLC to use the
Software. This EULA applies after the Licensee has received the Software from a Reseller or Metadata
Partners, LLC. The Licensee agrees to be bound by the terms of this EULA by installing, copying,
downloading or otherwise using the Software or clicking the "I Accept/ Agree" button if acquiring
the Software on-line.
Definitions
Accessible Code means source code that is unprotected and accessible.
Metadata Partners means Metadata Partners, LLC, a New York limited liability company.
Embedded Software means any third party software which may contain Accessible Code or Protected Code
licensed by Metadata Partners from a third party and embedded in the Software.
Fees mean all fees and expenses payable by the Licensee to Metadata Partners or Reseller, as
applicable, in licensing the Software and, as applicable, for Maintenance.
Licensed Process means a computer process which accesses and uses the Software under this License.
The number of Licensed Processes granted to the Licensee is dependent on the Fees paid by the
Licensee.
Maintenance means the provision by Metadata Partners to Licensee, under a separate agreement, of
Software updates and/or enhancements made generally available to customers from time to time, and
online technical support (and where applicable, phone support) for the sole purpose of addressing
technical issues relating to the use of the Software.
OEM Distribution means distribution of the Software as either a bundled add-on to, or embedded
component of, another application with such application being made available to its users as, but
not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering
or a subscription. Any OEM Distribution will be subject to a separate agreement by and between
Metadata Partners and the Licensee.
Protected Code means any source code that is protected against access by Metadata Partners or a
third party.
Reseller means an entity selling and distributing Metadata Partners products which is authorized by
Metadata Partners to do so.
Software means the Datomic software that is licensed to Licensee subject to the terms and conditions
of this EULA, which includes computer software, Accessible Code and Protected Code and may include
associated media, printed materials, "online" or electronic documentation, Internet-based services
and Embedded Software.
License Grant
Subject to the Licensee's compliance with the terms and conditions of this EULA, Metadata Partners
hereby grants to the Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable
license to install and use the Software only for the Licensee's own internal production use by
Licensed Processes, subject to the condition that the Licensee must ensure the maximum number of
processes accessing and using the Software is equal to the number of Licensed Processes for which
the necessary Fees have been paid, or for Licensee's own internal non-production use for the purpose
of development or testing on an unlimited number of Licensed Processes. The Licensee is permitted to
create copies the Software solely for data protection, archiving and backup purposes.
Evaluation
Upon the Licensee's request, Metadata Partners may provide an evaluation mode of the Software which
may not have full functionality. If the Software is only provided or provisioned for evaluation
purposes, the rights of the Licensee are limited to this evaluation license which permits the
Licensee to download, install, use and operate the Software subject to any limitations built into
the Software for the purpose of evaluation.
Fees
The Licensee must pay all Fees by their due date. Failure to pay Fees by the due date will result in
the immediate termination of the licenses granted under this EULA.
Restrictions
The Licensee hereby agrees, without the prior written consent of Metadata Partners, which may be
withheld or conditioned at Metadata Partners' sole discretion, it will not: (a) copy or use the
Software in any manner except as expressly permitted in this EULA; (b) use or deploy the Software on
any server in excess of the Licensed Processes for which Licensee has paid the applicable Fee; (c)
transfer, sell, rent, lease, lend, distribute, or sublicense the Software to any third party; (d)
use the Software for providing time-sharing services, service bureau services or as part of an
application services provider or as a service offering primarily designed to offer the functionality
of the Software; (e) reverse engineer, disassemble, or decompile the Software (except to the extent
such restrictions are prohibited by law); (f) alter, modify, enhance or prepare any derivative work
from or of the Software; (g) alter or remove any proprietary notices in the Software; (h) make
available to any third party the functionality of the Software or any license keys used in
connection with the Software; (i) copy or embed elements of the Accessible Code contained in the
Software into other applications; (j) publicly display or communicate the results of internal
performance testing or other benchmarking or performance evaluation of the Software; (k) export the
Software in violation of U.S. export administration rules, any other export laws or regulations, or
any other applicable law or regulation; (l) except as otherwise permitted in this EULA, publish,
use, promote, broadcast, circulate or refer publicly to any Metadata Partners' name, trade name,
trademark, service mark or logo; (m) commit any act or omission the likely result of which is that
Metadata Partners' or any of its third party suppliers' reputation will be brought into disrepute or
which act or omission could reasonably be expected to have or does have a material and adverse
effect on Metadata Partners' interests; (n) distribute the Software via OEM Distribution without
entering into a separate OEM Distribution agreement with Metadata Partners; (o) perform or
facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or
downloaded by, the Metadata Partners or any end user any software viruses, worms, Trojan horses,
time bombs, trap doors or any other computer code, files or programs or repetitive requests for
information designed to interrupt, destroy or limit the functionality of any computer software or
hardware or telecommunications equipment or to diminish the quality of, interfere with the
performance of, or impair the functionality of the Software (individually and collectively, a
"Virus"); (p) use the Software for any immoral, unethical, illegal or otherwise nefarious purpose;
or (q) use with or distribute the Software to any person located in a United States embargoed
country, named on the United States Treasury Department's listing of specially designated nationals
and blocked persons or otherwise blacklisted by any instrumentality of the United States. Any breach
or suspected breach of any term or condition set forth in this paragraph will result in the
immediate termination of all licenses granted hereunder.
Protection Mechanisms
The Software includes license protection mechanisms that are designed to manage and protect the
intellectual property rights of Metadata Partners and its third party suppliers. Licensee must not
modify or alter those features to try to defeat the Software use rules that the license protection
mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate
termination of any license granted under this EULA.
Proprietary Rights
Metadata Partners reserves all rights not expressly granted to the Licensee in this EULA. The
Software and all copies thereof are protected by copyright and other intellectual property laws and
treaties. Metadata Partners or relevant third parties, as applicable, own the entire title,
copyright, and other intellectual property rights and interests in and to the Software and all
subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not
acquire any rights of ownership in the Software. The Licensee acknowledges the Software contains
proprietary information and trade secrets of Metadata Partners and the Licensee agrees it will not
take any actions inconsistent with Metadata Partner's ownership of such information and trade
secrets. Without limiting the generality of the foregoing, the Licensee agrees it will not directly
or indirectly access or use the Software in order to build a competitive commercial product or
service. The Licensee acknowledges the Software contains Embedded Software and that, in addition to
the obligations of this EULA, additional obligations may apply in relation to any use of Embedded
Software by the Licensee. In such circumstances the Licensee must consult the relevant third party
to acquire any necessary licenses and consents in relation to its use of any Embedded Software. Any
breach or suspected breach of any term or condition set forth in this paragraph will result in the
immediate termination of all licenses granted hereunder.
Support and Maintenance
Any support services and Maintenance provided by Metadata Partners will be substantially as
described in a separate agreement provided by Metadata Partners to the Licensee and may be the
subject to the payment of additional Fees. The Licensee must be in compliance with the terms of this
License and have paid all Fees then due hereunder. Metadata Partners may, at its discretion, modify,
suspend or terminate support at any time upon notice to Licensee. The terms of this EULA apply to
updates, supplements, add-on components, or Internet-based services components, of the Software
(Supplementary Software) that Metadata Partners may provide to the Licensee or make available to the
Licensee after the date the Licensee obtains its initial copy of the Software, unless Metadata
Partners provides other terms and conditions along with any Supplementary Software.
Records Retention and Audit
If Metadata Partners reasonably suspects the Software has been distributed to or obtained by any
person or party without Metadata Partners' prior written consent, that Software is being varied or
accessed or used independently of the Software or that Licensee is otherwise breaching a term of
this License, Licensee agrees Metadata Partners has the right to require the Licensee to provide a
qualified certificate executed by the Licensee's auditor verifying compliance with the terms of this
EULA. If such an unqualified certificate is not received by Metadata Partners within thirty (30)
calendar days of being required, it will be considered that a breach of this EULA has occurred
allowing Metadata Partners to terminate the licenses granted under this EULA.
Representations and Warranties
The Licensee represents and warrants to Metadata Partners that: (a) if an individual, the Licensee
is at least eighteen (18) years old; (b) if an entity, the Licensee is duly organized and validly
existing in good standing under the laws of the state in which it was organized; (c) the Licensee
has the full power and authority to enter into this EULA, which constitutes a legal, valid and
binding obligation enforceable against the Licensee in accordance with the terms hereof; (d) all
information the Licensee provides to Metadata Partners during the term of this EULA, is and will be
truthful and accurate; (e) the Licensee's use of the Software is and will at all times be in
accordance with the terms and conditions set forth in this EULA, and all applicable laws, rules and
regulations, and without infringement or misappropriation of any intellectual property right or
other right of a third party; (f) the Licensee will not use the Software to store or transmit a
Virus; and (g) neither the Licensee nor any of the Licensee's officers, directors or personnel is
located in a United States embargoed country, or is, or has been, named on the United States
Treasury Department's listing of specially designated nationals and blocked persons or is, or has
been, otherwise blacklisted by any instrumentality of the United States. Any breach or suspected
breach of any representation or warranty set forth in this paragraph will result in the immediate
termination of all licenses granted hereunder.
Disclaimer of Warranty
THE SOFTWARE AND ANY SERVICES AND MAINTENANCE PROVIDED HEREUNDER ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. METADATA PARTNERS DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES OR
MAINTENANCE PROVIDED HEREUNDER WILL MEET LICENSEE'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN
THE COMBINATIONS LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE
OR UNINTERRUPTED OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. METADATA PARTNERS HEREBY DISCLAIMS
ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, NON-INFRINGEMENT, TITLE, AND ANY
WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
THE LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THE SOFTWARE RELIES UPON THIRD-PARTY SOFTWARE FOR
CERTAIN FUNCTIONS AND METADATA PARTNERS MAKES NO REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE TO
THE LICENSEE THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE OR PERFORM IN
ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC AND METADATA PARTNERS WILL NOT BE LIABLE
FOR ANY FAILURE THEREOF TO THE LICENSEE.
METADATA PARTNERS DOES NOT STORE ANY DATA. THE LICENSEE IS SOLELY RESPONSIBLE FOR THE ACCURACY,
QUALITY, INTEGRITY, LEGALITY, RELIABILITY, SECURITY, MAINTENANCE AND STORAGE OF ALL DATA IN
ACCORDANCE WITH APPLICABLE LAW. IF THE LICENSEE REQUIRES PERMANENT STORAGE OF ANY DATA USED IN
CONNECTION WITH THE SOFTWARE, THE LICENSEE IS SOLELY RESPONSIBLE FOR THE CREATION OF ANY AND ALL
BACKUPS OF SUCH DATA BEFORE USING THE SOFTWARE
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL METADATA PARTNERS OR ITS
LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE
PRODUCTS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION WITH THIS EULA OR THE
USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICES PROVIDED BY METADATA PARTNERS HEREUNDER
INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER LOSSES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF
GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL
OR EQUITABLE THEORY (CONTRACT, INDEMNITY, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO
EVENT WILL METADATA PARTNERS' OR ITS LICENSORS' AGGREGATE LIABILITY TO LICENSEE, FROM ALL CAUSES OF
ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED ONE THOUSAND DOLLARS (US $1,000). The parties
expressly acknowledge and agree that Metadata Partners has set its prices and entered into this EULA
in reliance upon the limitations of liability specified herein, which allocate the risk between
Metadata Partners and the Licensee and form a basis of the bargain between the parties. IF THE
LICENSEE IS LOCATED IN ANY COUNTRY WITHIN THE EUROPEAN UNION ONLY, NOTHING SET FORTH IN THIS EULA
SHALL EXCLUDE OR LIMIT LIABILITY TO A GREATER EXTENT THAN IS PERMITTED BY APPLICABLE LAW OR SHALL
EXCLUDE OR LIMIT LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION OR FOR DEATH OR PERSONAL INJURY
CAUSED BY NEGLIGENCE.
Publicity
Neither party will, without the other party's prior written consent, make any news release, public
announcement, denial or confirmation of this EULA, its value, or its terms and conditions, or in any
manner advertise or publish the fact of this EULA. Notwithstanding the above, Metadata Partners may
use the Licensee's name and logo, consistent with Licensee's trademark policies, on customer lists
so long as such use in no way promotes either endorsement or approval of Metadata Partners or any
Metadata Partners products or services.
Assignment
Licensee may assign this License to: succeeding parties in the case of a merger, acquisition or
change of control; or (ii) if Licensee is a supplier, to a government agency; provided, however,
that in each case, (a) Metadata Partners is notified in writing within ninety (90) days of such
assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this
License and (c) upon such assignment, the Licensee makes no further use of the Software. Metadata
Partners may assign its rights and obligation under this License without the consent of the
Licensee. Any assignment in contravention of this paragraph shall be void and of no force or effect
and will result in the immediate termination of the licenses granted hereunder.
Entire Agreement; Severability
This EULA (including any addendum or amendment to this EULA which is included with the Software) is
the entire agreement between the Licensee and Metadata Partners relating to the Software and
supersedes all prior or contemporaneous oral or written communications, proposals and
representations with respect to the Software or any other subject matter covered by this EULA. If
any provision of this License is held to be void, invalid, unenforceable or illegal, the other
provisions shall continue in full force and effect.
Notification
Metadata Partners may provide the Licensee with general notice by electronic mail to the Licensee's
e-mail address of record. The Licensee must give notice to Metadata Partners (such notice shall be
deemed given when received by Metadata Partners) by emailing Metadata Partners at
billing@datomic.com.
Jurisdiction
This EULA shall be governed by the laws of the State of New York,
U.S.A., excluding its conflicts of law rules. The parties expressly agree that the U.N. Convention
on Contracts for the International Sale of Goods (CISG) will not apply. Any legal action or
proceeding arising under this EULA will be brought exclusively in the federal or state courts
located in the State of New York and the parties hereby irrevocably consent to the personal
jurisdiction and venue therein. Any amendment or modification to the EULA must be in writing signed
by both parties.
Licensee's Use
The Licensee hereby agrees to defend and hold harmless Metadata Partners and its affiliates,
subsidiaries, officers, directors, shareholders, employees, representatives, agents, successors and
assigns (collectively, the Indemnitees) in any action or claim, and to indemnify Metadata Partners
and its Indemnitees from and against any and all losses, liabilities, sums of money, damages,
expenses, and costs (including, but not limited to, reasonable attorneys' fees) arising from such
action or claim and related to: (a) the Licensee's breach of any term, condition, representation or
warranty set forth in this EULA; (b) the Licensee's breach of any term or condition set forth in an
agreement governing any Embedded Software; and/or (c) the Licensee's violation of any applicable
law.
Permitted Fixes
Notwithstanding anything else in this EULA but subject to the terms and conditions contained herein,
the Licensee is permitted to modify the Accessible Code in the Software to develop bug fixes,
customizations or additional features solely for their internal purposes of using the Software.
IMPORTANT - READ CAREFULLY:
This End-User License Agreement (EULA) is a legal agreement between you
(either an individual or a single legal entity) (Licensee) and Metadata Partners, LLC to use the
Software. This EULA applies after the Licensee has received the Software from a Reseller or Metadata
Partners, LLC. The Licensee agrees to be bound by the terms of this EULA by installing, copying,
downloading or otherwise using the Software or clicking the "I Accept/ Agree" button if acquiring
the Software on-line.
Definitions
Accessible Code means source code that is unprotected and accessible.
Metadata Partners means Metadata Partners, LLC, a New York limited liability company.
Embedded Software means any third party software which may contain Accessible Code or Protected Code
licensed by Metadata Partners from a third party and embedded in the Software.
Fees mean all fees and expenses payable by the Licensee to Metadata Partners or Reseller, as
applicable, in licensing the Software and, as applicable, for Maintenance.
Licensed Process means a computer process which accesses and uses the Software under this License.
The number of Licensed Processes granted to the Licensee is dependent on the Fees paid by the
Licensee.
Maintenance means the provision by Metadata Partners to Licensee, under a separate agreement, of
Software updates and/or enhancements made generally available to customers from time to time, and
online technical support (and where applicable, phone support) for the sole purpose of addressing
technical issues relating to the use of the Software.
OEM Distribution means distribution of the Software as either a bundled add-on to, or embedded
component of, another application with such application being made available to its users as, but
not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering
or a subscription. Any OEM Distribution will be subject to a separate agreement by and between
Metadata Partners and the Licensee.
Protected Code means any source code that is protected against access by Metadata Partners or a
third party.
Reseller means an entity selling and distributing Metadata Partners products which is authorized by
Metadata Partners to do so.
Software means the Datomic software that is licensed to Licensee subject to the terms and conditions
of this EULA, which includes computer software, Accessible Code and Protected Code and may include
associated media, printed materials, "online" or electronic documentation, Internet-based services
and Embedded Software.
License Grant
Subject to the Licensee's compliance with the terms and conditions of this EULA, Metadata Partners
hereby grants to the Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable
license to install and use the Software only for the Licensee's own internal production use by
Licensed Processes, subject to the condition that the Licensee must ensure the maximum number of
processes accessing and using the Software is equal to the number of Licensed Processes for which
the necessary Fees have been paid, or for Licensee's own internal non-production use for the purpose
of development or testing on an unlimited number of Licensed Processes. The Licensee is permitted to
create copies the Software solely for data protection, archiving and backup purposes.
Evaluation
Upon the Licensee's request, Metadata Partners may provide an evaluation mode of the Software which
may not have full functionality. If the Software is only provided or provisioned for evaluation
purposes, the rights of the Licensee are limited to this evaluation license which permits the
Licensee to download, install, use and operate the Software subject to any limitations built into
the Software for the purpose of evaluation.
Fees
The Licensee must pay all Fees by their due date. Failure to pay Fees by the due date will result in
the immediate termination of the licenses granted under this EULA.
Restrictions
The Licensee hereby agrees, without the prior written consent of Metadata Partners, which may be
withheld or conditioned at Metadata Partners' sole discretion, it will not: (a) copy or use the
Software in any manner except as expressly permitted in this EULA; (b) use or deploy the Software on
any server in excess of the Licensed Processes for which Licensee has paid the applicable Fee; (c)
transfer, sell, rent, lease, lend, distribute, or sublicense the Software to any third party; (d)
use the Software for providing time-sharing services, service bureau services or as part of an
application services provider or as a service offering primarily designed to offer the functionality
of the Software; (e) reverse engineer, disassemble, or decompile the Software (except to the extent
such restrictions are prohibited by law); (f) alter, modify, enhance or prepare any derivative work
from or of the Software; (g) alter or remove any proprietary notices in the Software; (h) make
available to any third party the functionality of the Software or any license keys used in
connection with the Software; (i) copy or embed elements of the Accessible Code contained in the
Software into other applications; (j) publicly display or communicate the results of internal
performance testing or other benchmarking or performance evaluation of the Software; (k) export the
Software in violation of U.S. export administration rules, any other export laws or regulations, or
any other applicable law or regulation; (l) except as otherwise permitted in this EULA, publish,
use, promote, broadcast, circulate or refer publicly to any Metadata Partners' name, trade name,
trademark, service mark or logo; (m) commit any act or omission the likely result of which is that
Metadata Partners' or any of its third party suppliers' reputation will be brought into disrepute or
which act or omission could reasonably be expected to have or does have a material and adverse
effect on Metadata Partners' interests; (n) distribute the Software via OEM Distribution without
entering into a separate OEM Distribution agreement with Metadata Partners; (o) perform or
facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or
downloaded by, the Metadata Partners or any end user any software viruses, worms, Trojan horses,
time bombs, trap doors or any other computer code, files or programs or repetitive requests for
information designed to interrupt, destroy or limit the functionality of any computer software or
hardware or telecommunications equipment or to diminish the quality of, interfere with the
performance of, or impair the functionality of the Software (individually and collectively, a
"Virus"); (p) use the Software for any immoral, unethical, illegal or otherwise nefarious purpose;
or (q) use with or distribute the Software to any person located in a United States embargoed
country, named on the United States Treasury Department's listing of specially designated nationals
and blocked persons or otherwise blacklisted by any instrumentality of the United States. Any breach
or suspected breach of any term or condition set forth in this paragraph will result in the
immediate termination of all licenses granted hereunder.
Protection Mechanisms
The Software includes license protection mechanisms that are designed to manage and protect the
intellectual property rights of Metadata Partners and its third party suppliers. Licensee must not
modify or alter those features to try to defeat the Software use rules that the license protection
mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate
termination of any license granted under this EULA.
Proprietary Rights
Metadata Partners reserves all rights not expressly granted to the Licensee in this EULA. The
Software and all copies thereof are protected by copyright and other intellectual property laws and
treaties. Metadata Partners or relevant third parties, as applicable, own the entire title,
copyright, and other intellectual property rights and interests in and to the Software and all
subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not
acquire any rights of ownership in the Software. The Licensee acknowledges the Software contains
proprietary information and trade secrets of Metadata Partners and the Licensee agrees it will not
take any actions inconsistent with Metadata Partner's ownership of such information and trade
secrets. Without limiting the generality of the foregoing, the Licensee agrees it will not directly
or indirectly access or use the Software in order to build a competitive commercial product or
service. The Licensee acknowledges the Software contains Embedded Software and that, in addition to
the obligations of this EULA, additional obligations may apply in relation to any use of Embedded
Software by the Licensee. In such circumstances the Licensee must consult the relevant third party
to acquire any necessary licenses and consents in relation to its use of any Embedded Software. Any
breach or suspected breach of any term or condition set forth in this paragraph will result in the
immediate termination of all licenses granted hereunder.
Support and Maintenance
Any support services and Maintenance provided by Metadata Partners will be substantially as
described in a separate agreement provided by Metadata Partners to the Licensee and may be the
subject to the payment of additional Fees. The Licensee must be in compliance with the terms of this
License and have paid all Fees then due hereunder. Metadata Partners may, at its discretion, modify,
suspend or terminate support at any time upon notice to Licensee. The terms of this EULA apply to
updates, supplements, add-on components, or Internet-based services components, of the Software
(Supplementary Software) that Metadata Partners may provide to the Licensee or make available to the
Licensee after the date the Licensee obtains its initial copy of the Software, unless Metadata
Partners provides other terms and conditions along with any Supplementary Software.
Records Retention and Audit
If Metadata Partners reasonably suspects the Software has been distributed to or obtained by any
person or party without Metadata Partners' prior written consent, that Software is being varied or
accessed or used independently of the Software or that Licensee is otherwise breaching a term of
this License, Licensee agrees Metadata Partners has the right to require the Licensee to provide a
qualified certificate executed by the Licensee's auditor verifying compliance with the terms of this
EULA. If such an unqualified certificate is not received by Metadata Partners within thirty (30)
calendar days of being required, it will be considered that a breach of this EULA has occurred
allowing Metadata Partners to terminate the licenses granted under this EULA.
Representations and Warranties
The Licensee represents and warrants to Metadata Partners that: (a) if an individual, the Licensee
is at least eighteen (18) years old; (b) if an entity, the Licensee is duly organized and validly
existing in good standing under the laws of the state in which it was organized; (c) the Licensee
has the full power and authority to enter into this EULA, which constitutes a legal, valid and
binding obligation enforceable against the Licensee in accordance with the terms hereof; (d) all
information the Licensee provides to Metadata Partners during the term of this EULA, is and will be
truthful and accurate; (e) the Licensee's use of the Software is and will at all times be in
accordance with the terms and conditions set forth in this EULA, and all applicable laws, rules and
regulations, and without infringement or misappropriation of any intellectual property right or
other right of a third party; (f) the Licensee will not use the Software to store or transmit a
Virus; and (g) neither the Licensee nor any of the Licensee's officers, directors or personnel is
located in a United States embargoed country, or is, or has been, named on the United States
Treasury Department's listing of specially designated nationals and blocked persons or is, or has
been, otherwise blacklisted by any instrumentality of the United States. Any breach or suspected
breach of any representation or warranty set forth in this paragraph will result in the immediate
termination of all licenses granted hereunder.
Disclaimer of Warranty
THE SOFTWARE AND ANY SERVICES AND MAINTENANCE PROVIDED HEREUNDER ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. METADATA PARTNERS DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES OR
MAINTENANCE PROVIDED HEREUNDER WILL MEET LICENSEE'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN
THE COMBINATIONS LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE
OR UNINTERRUPTED OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. METADATA PARTNERS HEREBY DISCLAIMS
ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, NON-INFRINGEMENT, TITLE, AND ANY
WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
THE LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THE SOFTWARE RELIES UPON THIRD-PARTY SOFTWARE FOR
CERTAIN FUNCTIONS AND METADATA PARTNERS MAKES NO REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE TO
THE LICENSEE THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE OR PERFORM IN
ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC AND METADATA PARTNERS WILL NOT BE LIABLE
FOR ANY FAILURE THEREOF TO THE LICENSEE.
METADATA PARTNERS DOES NOT STORE ANY DATA. THE LICENSEE IS SOLELY RESPONSIBLE FOR THE ACCURACY,
QUALITY, INTEGRITY, LEGALITY, RELIABILITY, SECURITY, MAINTENANCE AND STORAGE OF ALL DATA IN
ACCORDANCE WITH APPLICABLE LAW. IF THE LICENSEE REQUIRES PERMANENT STORAGE OF ANY DATA USED IN
CONNECTION WITH THE SOFTWARE, THE LICENSEE IS SOLELY RESPONSIBLE FOR THE CREATION OF ANY AND ALL
BACKUPS OF SUCH DATA BEFORE USING THE SOFTWARE
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL METADATA PARTNERS OR ITS
LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE
PRODUCTS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION WITH THIS EULA OR THE
USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICES PROVIDED BY METADATA PARTNERS HEREUNDER
INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER LOSSES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF
GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL
OR EQUITABLE THEORY (CONTRACT, INDEMNITY, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO
EVENT WILL METADATA PARTNERS' OR ITS LICENSORS' AGGREGATE LIABILITY TO LICENSEE, FROM ALL CAUSES OF
ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED ONE THOUSAND DOLLARS (US $1,000). The parties
expressly acknowledge and agree that Metadata Partners has set its prices and entered into this EULA
in reliance upon the limitations of liability specified herein, which allocate the risk between
Metadata Partners and the Licensee and form a basis of the bargain between the parties. IF THE
LICENSEE IS LOCATED IN ANY COUNTRY WITHIN THE EUROPEAN UNION ONLY, NOTHING SET FORTH IN THIS EULA
SHALL EXCLUDE OR LIMIT LIABILITY TO A GREATER EXTENT THAN IS PERMITTED BY APPLICABLE LAW OR SHALL
EXCLUDE OR LIMIT LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION OR FOR DEATH OR PERSONAL INJURY
CAUSED BY NEGLIGENCE.
Publicity
Neither party will, without the other party's prior written consent, make any news release, public
announcement, denial or confirmation of this EULA, its value, or its terms and conditions, or in any
manner advertise or publish the fact of this EULA. Notwithstanding the above, Metadata Partners may
use the Licensee's name and logo, consistent with Licensee's trademark policies, on customer lists
so long as such use in no way promotes either endorsement or approval of Metadata Partners or any
Metadata Partners products or services.
Assignment
Licensee may assign this License to: succeeding parties in the case of a merger, acquisition or
change of control; or (ii) if Licensee is a supplier, to a government agency; provided, however,
that in each case, (a) Metadata Partners is notified in writing within ninety (90) days of such
assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this
License and (c) upon such assignment, the Licensee makes no further use of the Software. Metadata
Partners may assign its rights and obligation under this License without the consent of the
Licensee. Any assignment in contravention of this paragraph shall be void and of no force or effect
and will result in the immediate termination of the licenses granted hereunder.
Entire Agreement; Severability
This EULA (including any addendum or amendment to this EULA which is included with the Software) is
the entire agreement between the Licensee and Metadata Partners relating to the Software and
supersedes all prior or contemporaneous oral or written communications, proposals and
representations with respect to the Software or any other subject matter covered by this EULA. If
any provision of this License is held to be void, invalid, unenforceable or illegal, the other
provisions shall continue in full force and effect.
Notification
Metadata Partners may provide the Licensee with general notice by electronic mail to the Licensee's
e-mail address of record. The Licensee must give notice to Metadata Partners (such notice shall be
deemed given when received by Metadata Partners) by emailing Metadata Partners at
billing@datomic.com.
Jurisdiction
This EULA shall be governed by the laws of the State of New York,
U.S.A., excluding its conflicts of law rules. The parties expressly agree that the U.N. Convention
on Contracts for the International Sale of Goods (CISG) will not apply. Any legal action or
proceeding arising under this EULA will be brought exclusively in the federal or state courts
located in the State of New York and the parties hereby irrevocably consent to the personal
jurisdiction and venue therein. Any amendment or modification to the EULA must be in writing signed
by both parties.
Licensee's Use
The Licensee hereby agrees to defend and hold harmless Metadata Partners and its affiliates,
subsidiaries, officers, directors, shareholders, employees, representatives, agents, successors and
assigns (collectively, the Indemnitees) in any action or claim, and to indemnify Metadata Partners
and its Indemnitees from and against any and all losses, liabilities, sums of money, damages,
expenses, and costs (including, but not limited to, reasonable attorneys' fees) arising from such
action or claim and related to: (a) the Licensee's breach of any term, condition, representation or
warranty set forth in this EULA; (b) the Licensee's breach of any term or condition set forth in an
agreement governing any Embedded Software; and/or (c) the Licensee's violation of any applicable
law.
Permitted Fixes
Notwithstanding anything else in this EULA but subject to the terms and conditions contained herein,
the Licensee is permitted to modify the Accessible Code in the Software to develop bug fixes,
customizations or additional features solely for their internal purposes of using the Software.
