Datomic On-Prem End User License Agreement

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 Cognitect, Inc. to use the Software. This EULA applies after the Licensee has received the Software from a Reseller or Cognitect, Inc. 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.

Cognitect means Cognitect, Inc., a Delaware Corporation.

Embedded Software means any third party software which may contain Accessible Code or Protected Code licensed by Cognitect from a third party and embedded in the Software.

Fees mean all fees and expenses payable by the Licensee to Cognitect 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 to create a Transactor. You are authorized to use one Licensed Transactor; additional Licensed Transactors may be purchased for additional Fees.

Maintenance means the provision by Cognitect 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 Cognitect and the Licensee.

Protected Code means any source code that is protected against access by Cognitect or a third party.

Reseller means an entity selling and distributing Cognitect products which is authorized by Cognitect 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.

Transactor is a process that accepts transactions and coordinates change, and is needed whenever you want a system comprised of more than a single peer, or one that leverages a storage service.

License Grant

Subject to the Licensee’s compliance with the terms and conditions of this EULA, Cognitect 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 otherwise permitted to create copies the Software solely for data protection, archiving and backup purposes.

Evaluation

Upon the Licensee’s request, Cognitect 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 Cognitect, which may be withheld or conditioned at Cognitect’s 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 as, or as part of, 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) distribute the Software via OEM Distribution without entering into a separate OEM Distribution agreement with Cognitect (m) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or downloaded by, Cognitect 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"); (n) use the Software for any illegal purpose; or (o) 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 Cognitect 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

Cognitect 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. Cognitect 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 Cognitect and the Licensee agrees it will not take any actions inconsistent with Cognitect’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 Cognitect will be substantially as described in a separate agreement provided by Cognitect 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. Cognitect 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 Cognitect may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless Cognitect provides other terms and conditions along with any Supplementary Software.

Records Retention and Audit

If Cognitect reasonably suspects the Software has been distributed to or obtained by any person or party without Cognitect’s 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 Cognitect 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 Cognitect within thirty (30) calendar days of being required, it will be considered that a breach of this EULA has occurred allowing Cognitect to terminate the licenses granted under this EULA.

Representations and Warranties

The Licensee represents and warrants to Cognitect 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 Cognitect 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. COGNITECT 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. COGNITECT 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 COGNITECT 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 COGNITECT WILL NOT BE LIABLE FOR ANY FAILURE THEREOF TO THE LICENSEE.

COGNITECT 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 COGNITECT 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 COGNITECT 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 COGNITECT’S 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 Cognitect has set its prices and entered into this EULA in reliance upon the limitations of liability specified herein, which allocate the risk between Cognitect 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, Cognitect 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 Cognitect or any Cognitect products or services.

Assignment

Licensee may assign this License to: succeeding parties in the case of a merger, acquisition or change of control; or if Licensee is a supplier, to a government agency; provided, however, that in each case, (a) Cognitect 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. Cognitect 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 Cognitect 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

Cognitect 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 Cognitect (such notice shall be deemed given when received by Cognitect) by emailing Cognitect at billing@datomic.com.

Jurisdiction

This EULA shall be governed by the laws of the State of Delaware, 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 Delaware 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 Cognitect and its affiliates, subsidiaries, officers, directors, shareholders, employees, representatives, agents, successors and assigns (collectively, the Indemnitees) in any action or claim, and to indemnify Cognitect 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.