1. GRANT OF LICENSE. Kinetica hereby grants to you a non-exclusive, revocable, non-production, limited evaluation license to use the Software and any related documentation (“Documentation”), subject to your compliance with the license restrictions set forth below, for test and development purposes only. You may make one copy of the Software for back-up and archival purposes and that copy must contain all of the original Software’s proprietary notices. Trial Edition Software licenses are ineligible for support, and such Software may not be used, directly or indirectly, in connection with any Software licenses that are eligible for Support.
2. LICENSE RESTRICTIONS. You may not: (i) permit other individuals outside of your company or organization to use the Software; (ii) use the Software on more than one machine or connect to Software installed on other machines; (iii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iv) copy the Software or Documentation (except to make one back-up or archival copy); (v) rent, lease, transfer, redistribute, use as a service bureau or time sharing purpose, or otherwise transfer rights to the Software or Documentation; (vi) remove any proprietary notices or labels on the Software or Documentation; or (vii) disclose the results of any Software performance benchmarks to any third party without Kinetica’s prior written consent. Any such forbidden use shall immediately terminate your license to the Software. You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. You may not use the Software in an attempt to circumvent, or in conjunction with any device, program or service designed to circumvent, technological measures employed to control access to, or the rights in a content file or other work protected by any applicable copyright or other intellectual property law(s).
3. EXPIRATION. Your license to use the Software shall last for 30 days from download, provided that you comply with all the terms of this license.
4. TITLE. Title, all ownership rights, and all applicable intellectual property rights in and to the Software and Documentation shall remain with Kinetica, unless otherwise noted. The Software and Documentation are protected by the copyright laws of the United States and international copyright treaties.
5. DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE, DOCUMENTATION, AND FORUM ACCESS ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KINETICA FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK STEMMING FROM THE USE OR PERFORMANCE OF THE SOFTWARE, IF ANY, REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KINETICA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, FORUM OR ITS CONTENT, EVEN IF KINETICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KINETICA DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY DOCUMENTATION CONTENT PROVIDED BY OR THROUGH KINETICA OR THROUGH THE FORUM.
6. INDEMNIFICATION. This Software is intended for use in the manner for which it was designed. You agree to hold harmless, indemnify and defend Kinetica, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims that you have used the Software in violation of another party’s rights, or in violation of any law, or violated any terms of this Agreement. If you are importing the Software from outside the United States, you shall indemnify and hold Kinetica harmless from and against any import and export duties or other claims arising from such importation.
7. TERMINATION. This Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from Kinetica to effect such termination. You may also terminate this Agreement at any time by notifying Kinetica in writing of termination. Upon any termination of this Agreement, you shall immediately discontinue use of the Software and delete from your systems all full or partial copies of the Software, documentation and related materials provided by Kinetica.
8. NO ASSIGNMENT. This Agreement is personal to you, and may not be assigned without Kinetica’s express written consent. In the event that you are an entity that merges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If Kinetica does not consent to assignment of this Agreement to the new or acquiring entity in such merger or acquisition, Kinetica may terminate this Agreement on ten (10) days’ written notice. Both parties shall perform under this Agreement until such termination is effective.
9. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS. This Software and Documentation are provided with restricted rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software—Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. The manufacturer is Kinetica DB, Inc., 101 California St., Suite 4560, San Francisco, California 94111; U.S.A. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that the Software or underlying information or technology may not be downloaded or otherwise exported or re-exported (i) into any country or territory subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
10. ARBITRATION & JURISDICTION. All claims, disputes, and other matters in question arising out of, or relating to, this Agreement or the interpretation or breach thereof, shall be fully, finally and exclusively resolved by binding and confidential arbitration conducted pursuant to the rules of Judicial Arbitration and Mediation Services, Inc. (JAMS) in San Francisco, California. This agreement to arbitrate shall be specifically enforceable under applicable law in any court. Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and JAMS. By entering into this Agreement, the parties waive their respective rights to have any such disputes or claims tried by a judge or jury. To the fullest extent permitted by law: no arbitration under this Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of Kinetica; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and Kinetica); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and Kinetica). Your arbitration fees and your share of arbitrator compensation will be limited to those set forth in the JAMS Rules with the remainder paid by Kinetica. If such costs are determined to be excessive, Kinetica will pay all arbitration fees and arbitrator compensation. You and Kinetica may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and Kinetica hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California to enforce the provisions of this section, and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software, or your use of the Software. The court, not the arbitrator, shall determine whether arbitration may occur and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or your use of the Software or Services shall be governed by the laws of the State of California and the Federal Arbitration Act.
11. COPYRIGHT. All content copyright Kinetica DB, Inc., unless otherwise indicated. All rights reserved. Any copying, re-distribution, or sale is expressly prohibited. Violators will be prosecuted to the maximum extent permissible under applicable law.
12. MISCELLANEOUS. The Software contains functionality that may automatically communicate with Kinetica’s servers to check for important messages, including updates and service bulletins, provide information about your installation and use of the software. Kinetica uses this information to gain insight into how the Software is used by the community of users, not for any specific installation. Kinetica may keep statistics on the aggregated anonymous use of the Software. The Software may contain certain third-party libraries that are licensed under separate, distinct software licenses, as detailed in the download kit and/or Documentation.
13. INTEGRATION CLAUSE & EXCLUSIONS. This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by Kinetica or not. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of Kinetica. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.