2ndQuadrant End User License Agreement

This End User License Agreement (the "Agreement") is made as of the date of the applicable Statement of Work ("Effective Date") by and between 2nd Quadrant Limited, a United Kingdom registered company ("2Q") and the company which downloads the Software (the "Company" and, together with 2Q, the "parties"), and includes the following Terms and Conditions.

Software

That 2Q software listed in the applicable Statement of Work (defined below).

Support

As per Statement of Work.

Term

In the case of production use of the Software, coterminous with Production Support subscription purchased as part of underlying documents binding 2Q and Company to the provision and payment for support for the Software (each a "Statement of Work" or "SOW"). In the case of a trial license, the Term will be limited to thirty calendar days.

Fees, Payment Terms

As per applicable Statement of Work.

Terms and Conditions

This Agreement is made and entered into by and between 2Q and Company, and sets forth the terms under which Company may use certain 2Q software and/or receive certain consulting services under Orders governed by this Agreement. If Company does not agree to the terms of this Agreement it may not download or otherwise access the Software.

This Agreement cannot be changed without a mutually signed amendment. 2Q will not in any way change the terms of this Agreement. Any SOW placed under this version of the Agreement may only be modified by a mutually signed amendment. Notwithstanding the foregoing, if Company and 2Q have entered into a separate License Agreement signed by both parties for the same software, then that License Agreement, and not this Agreement shall govern the same.

  1. Software License. 2Q has developed and licenses the software specified on the underlying Statement of Work ("Software") for use by Company on its own and for use with Company's own software. While such use may include Company's use on Company controlled servers for applications that are client facing, it expressly excludes any deployment on non-Company controlled servers or other distribution to any third party. In the case of a trial license, the Software will be limited to non-production use. Upon 2Q's receipt of all of the fees specified on the underlying Statement of Work for the support services and licensing (collectively the "Fees"), 2Q grants to Company a limited, worldwide, non-exclusive, revocable, royalty-free, paid-up, non-transferable, non-sublicensable license to use the Software for the duration of the Term of the support services stated on the applicable Statement of Work, subject to the additional restrictions and permissions in this Agreement ("Software License"). For clarity, some of the Software, including scripts, is provided in source code formats, but Company may not modify any Software in any format. This Agreement does not apply to any open source software or other third party software. All Fees are non-refundable. Any changes to this Agreement, including changes in Software licensed by 2Q to Company must be stated in the applicable Statement of Work or other written document, and signed by both parties. Particular terms not defined in this Agreement may be defined in the Statement of Work.

  2. Term. Each Software License begins on the date agreed to by the parties, and continues for the duration of the "Term" stated above. Company may renew the Software License for an additional Term as agreed to by the parties by paying the Fees set forth in the applicable Statement of Work and/or any extensions thereto prior to the end of the current Term. If 2Q does not receive renewal Fees set forth in the applicable Statement of Work or any extension thereto by the end of a current Term, then the Software License shall automatically terminate, and Company is required to delete all copies of the Software in Company's possession or control within one month of the end of the Term. 2Q may terminate a Software License on no fewer than thirty days' prior written notice to Company, except that this Software License will expire coterminous with the underlying Support subscription in the underlying SOW. Each license will expire unless renewed pursuant to a Statement of Work, or extension thereto effective at the end of the current Term.

  3. Restrictions. An "instance" is defined as a PostgreSQL, 2ndQPostgres, or Postgres-BDR server process running on a pair Internet protocol ("IP") address and transmission control protocol ("TCP") port (usually port 5432). Company may only use the Software as provided herein. Further Company shall not disclose or use the Software (a) outside of Company for any purpose; or (b) for technical evaluation from any third party; or (c) for creating a product that competes with the Software or any other 2Q product; or (d) for resale of any kind. Company may not permit any affiliate or subsidiary of the Company (each, an "Affiliate") to access or use the Software, unless the Affiliate is listed in the applicable SOW, in which case Company will be responsible for the actions and omissions of each Affiliate. As noted in the Support provisions, all production instances of the Software are also required to be under a 2Q Support subscription; otherwise the Software License for the same automatically expires. All rights not expressly granted to Company are reserved by 2Q.

  4. Support. 2Q will provide support and maintenance services for the Software during the Term ("Support") set forth in the applicable Statement of Work.

  5. Proprietary Rights. 2Q and its licensors retain all rights, including copyright, trademark, trade secret and other intellectual property rights (collectively, "Proprietary Rights") in the Software and in all other 2Q goods and services, including without limitation, all derivative works, improvements, modifications, extensions, enhancements, customizations, and the like (collectively "Future Works"), regardless of whether performed under any agreement, including without limitation, any master agreement between 2Q and Company purporting to grant any Proprietary rights to Company. The foregoing applies regardless of the author of such Future Works. Company and its licensors retain any and all Proprietary Rights in and to Company's computer programs and other goods and services and Future Works, subject to 2Q's and its licensors' Proprietary Rights in the Software licensed pursuant to this Agreement. Company may not remove any product identification or Proprietary Rights notices from the Software.

  6. Confidentiality. Except as expressly set forth herein, 2Q and Company shall maintain in confidence the terms of this Agreement. Each party ("Discloser") may disclose to the other party ("Recipient") proprietary or confidential information ("Confidential Information"). "Confidential Information" includes any information, communication or data, in any form, including, but not limited to oral, written, or electronic, which the Discloser desires to protect against unrestricted disclosure or use, including without limitation, 2Q's Software and Proprietary Rights, Company's customer information, each party's business information, any personally-identifiable information, financial data, marketing data, and any other information that a reasonable business person would expect to keep confidential. Confidential Information does not need to be marked as such. All Confidential Information shall remain the sole property of the Discloser and its confidentiality shall be maintained and protected by the Recipient with the same degree of care as the Recipient uses for its own confidential and proprietary information, but in no event less than a reasonable degree of care. The Recipient shall not disclose the Discloser's Confidential Information to any third party or use it other than for purposes of this Agreement. The restrictions on the use or disclosure of any Confidential Information shall not apply to any information: (i) that is or becomes generally available to the public without breach of this Agreement by the Recipient; (ii) is rightfully in the Recipient's possession (without a duty of confidentiality) prior to disclosure to it by the Discloser; or (iii) is independently developed by the Recipient. If a Recipient is required by applicable laws or regulations to disclose the Discloser's Confidential Information, then unless prohibited by applicable laws or regulations the Recipient will provide the Discloser prompt written notice and will cooperate with the Discloser's efforts to limit the required disclosure.

  7. Data. 2Q may collect and use technical information regarding how Company uses the Software and how 2Q provides Support to Company ("Non-Personal Data"). Generally speaking, 2Q collects personally-identifiable information ("Personal Data") only when necessary to establish contact with Company's staff for Support and management of this Agreement. All Personal Data will be collected, processed, stored, shared, used and protected as stated in 2Q's current privacy statement, as amended by 2Q from time to time.

  8. Export Control. Company represents, warrants and covenants that it has complied with, and will continue to comply with, all applicable laws, regulations and government-issued legally binding rules and guidance of the United Kingdom, United States and/or any foreign countries with respect to the exportation or importation and/or use of the 2Q Software, any modifications, enhancements, Future Works, and updates thereto, and any technical data derived therefrom, outside of the United Kingdom, United States or into the United Kingdom, United States or into another country, including, but not limited to obtaining any necessary consents and requesting or filing any documents as required by the applicable governing body.

  9. Government Clauses. If Company is the United States Government or any contractor thereof, all licenses granted hereunder are subject to the following:

    1. for acquisition by or on behalf of civil agencies, as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this Agreement and as specified in Subpart 12.1212 of the Federal Acquisition Regulation (FAR), 48 C.F.R.12.1212, and its successors; and
    2. for acquisition by or on behalf of the Department of Defense (DOD) and any agencies or units thereof, as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this Agreement and as specified in Subparts 227.7202-1 and 227.7202-3 of the DOD FAR Supplement, 48 C.F.R.227.7202-1 and 227.7202-3, and its successors, manufacturer is 2nd Quadrant Limited.

  10. Indemnity. Each party ("Indemnitor") shall indemnify, defend and hold harmless the other party ("Indemnitee") from and against any and all claims, and suits, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of or in connection with any action, suit, proceeding or claim (each, a "Claim"), brought by an unrelated third party against the Indemnitee that alleges that (x) in the case 2Q, 2Q's Software as delivered to the Company infringes any intellectual property or other rights of a third party or violates any applicable law or regulation and (y) in the case of Company, any Company use of the Software, beyond the license grant provided herein infringes any intellectual property or other rights of a third party or violates any applicable law or regulation. For any Claim, the Indemnitee will provide prompt written notice to the Indemnitor and provide reasonable assistance to the Indemnitor. The Indemnitor will promptly assume the defense of any valid Claim with Indemnitor's counsel, and shall have the right to settle or defend the Claim at Indemnitor's sole expense. However, Indemnitor shall not have the right to admit or assess liability against any Indemnitee.

  11. Disclaimers. 2Q AND ITS LICENSORS EXCLUDE ALL WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. EXCEPT FOR OBLIGATIONS OF CONFIDENTIALITY AND INDEMNIFICATION, AND EXCEPT FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF 2Q'S OR ITS LICENSORS' INTELLECTUAL PROPERTY RIGHTS OR COMPANY EXCEEDING THE LICENSE GRANT HEREUNDER AND/OR SECTION 3 (RESTRICTIONS), TO THE EXTENT ALLOWABLE BY LAW, IN NO EVENT SHALL EITHER PARTY (OR 2Q'S LICENSORS) BE LIABLE TO THE OTHER FOR (A) ANY AMOUNTS IN EXCESS OF THE TOTAL FEES RECEIVED BY 2Q FROM COMPANY PURSUANT TO THE APPLICABLE UNDERLYING SOW; (B) ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (C) INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), IN EACH CASE REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF ADVISED OF THEIR POSSIBLE EXISTENCE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. 2Q ASSUMES NO LIABILITY OR RESPONSIBILITY FOR CUSTOMER DATA.

  12. Termination for Material Breach. If a party materially breaches this Agreement, the non-breaching party will notify the breaching party in writing, and the breaching party shall have thirty days to fully cure the material breach; otherwise this Agreement will terminate at the end of the thirty-day period. Either party may terminate this Agreement immediately upon written notice if a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or dissolves, liquidates or otherwise fails to operate in the ordinary course. Those provisions of this Agreement that expressly state they survive termination of this Agreement, or that are necessary to construe the Agreement or adjudicate rights under this Agreement shall survive any termination of this Agreement.

  13. Governing Law. This Agreement and performance hereunder shall be governed by the laws of England and Wales without regard to conflicts of laws provisions or principles. To the extent it does not diminish either party's insurance coverage and/or response to any claim, any and all disputes between the parties shall be determined by one arbitrator in binding arbitration administered by the International Centre for Dispute Resolution pursuant to its International Arbitration Rules.

  14. Hearings. Subject to Section 12, to the extent allowable in any arbitration, all hearings will be conducted by audio conference and video conference in the English language. The arbitrator's award will be final, binding on the parties and non-appealable. Judgment on the award may be entered and enforced in any court or tribunal of competent jurisdiction. Any award of damages shall be subject to the limitations set forth in this Agreement. No dispute will relieve Company from its obligation of paying the undisputed portion of any Fees payable hereunder.

  15. Waiver. Unless waived and agreed in writing by the parties, no action or inaction by a party under this Agreement will constitute a waiver of a party's rights or obligations under this Agreement.
  16. Entire Agreement, Severability, Assignment. This Agreement (including any SOW, addendum or amendment to this Agreement) is the entire agreement between Company and 2Q relating to the Software and the support services (if any) 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 Agreement. Company's use and acceptance of the Software is expressly limited to the terms and conditions of this Agreement and any purchase orders that have been signed by an authorized representative of both parties. Any additional or different terms or conditions in any communication by Company are hereby rejected and shall be null and void, irrespective of the means of Company's acceptance. Any failure by 2Q to object to any additional or different provisions proposed by Company shall not constitute a waiver of these terms and conditions, nor constitute acceptance of any such Company's terms and conditions. This Agreement shall be applicable whether or not it is attached to or enclosed with the Software. Company may cancel submitted purchase orders or SOWs (if any) only with the prior written consent of 2Q. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other provisions shall continue in full force and effect. The failure of 2Q to act with respect to a breach of this Agreement by Company or others does not constitute a waiver and shall not limit 2Q's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Company and may not be assigned or transferred for any reason whatsoever, directly or indirectly, without 2Q's consent and any action or conduct in violation of the foregoing shall be void and without effect. 2Q expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. If the terms of this Agreement conflict with any other agreement between the parties, this Agreement will prevail.

Contact details

2ndQuadrant Ltd.
7200 The Quorum
Oxford Business Park North
Oxford, OX4 2JZ, United Kingdom

https://www.2ndQuadrant.com
[email protected]