Zen Core database for Android Topcoder Challenge – Thank You

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Actian Corporation
Actian Zen Edge Database for Android Pre-release Early Access Program Agreement

Revision Date: April 2018

THIS CLICK-THROUGH PRE-RELEASE LICENSE AGREEMENT (THE “AGREEMENT”), IS ENTERED INTO BY AND BETWEEN ACTIAN CORPORATION (“LICENSOR”) AND YOU AND ESTABLISHES A LICENSE TO YOU TO EVALUATE CERTAIN SOFTWARE OF LICENSOR (“PROGRAM MATERIALS”).  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR AN ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY OR ENTITY AND THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND LEGALLY BIND YOUR COMPANY OR ENTITY. BY USING THE PROGRAM MATERIALS OR CLICKING ON THE “I ACCEPT” BUTTON BELOW (OR TYPING “Y” OR “YES” IF YOU ARE INSTEAD ASKED FOR A “Y OR N” RESPONSE), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, LICENSOR SHALL NOT LICENSE THE PROGRAM MATERIALS TO YOU, AND YOU MUST CLICK ON THE “DECLINE” OR “I DO NOT ACCEPT” BUTTON BELOW (OR TYPE “N” OR “NO” IF YOU ARE INSTEAD ASKED FOR A “Y OR N” RESPONSE) AND DESTROY OR RETURN ANY PROGRAM MATERIALS. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “ACCEPT” BUTTON BELOW.  FOR PURPOSES OF THIS AGREEMENT, “CUSTOMER” INCLUDES YOU AND ANY OF YOUR COMPANIES OR ENTITIES THAT YOU HAVE BOUND UNDER THIS AGREEMENT.

1. PROGRAM MATERIALS. "Program Materials" means the object code version of the computer software delivered to Customer by Licensor in connection with this Agreement, including Documentation. "Documentation" means any and all related user manuals, technical documentation, configuration specifications and training materials.  Program Materials may be amended from time to time by Licensor.

2. LICENSE. Licensor hereby grants to Customer a royalty-free, non-exclusive, non-sub-licensable, non-transferable license to reproduce and use the Program Materials internally from the date of delivery for sixty (60), days ("Trial Period") in accordance with the terms and non-disclosure requirements contained herein solely for evaluating the Program Materials. Licensee shall not use the application developed in connection with this Agreement for any commercial or production purposes without first obtaining a production release of the Program Materials and obtaining the appropriate license from Licensor. Licensee acknowledges that Licensor may not produce a production release of the Program Materials and any development efforts undertaken by Licensee are at its own risk.

3. LIMITATION ON USE. As a condition of the license granted above, Customer shall not: (i) license, distribute, sublicense, lease, rent, loan, encumber, assign, sell or otherwise transfer or remarket the Program Materials to any third parties; (ii) reverse engineer, reverse compile, de-compile, or disassemble the object code or otherwise attempt to derive the source code for any of the Program Materials; (iii) modify the Program Materials; (iv) use Program Materials to provide or operate hosting or Application Service Provider (ASP) services, service bureau, marketing, training, outsourcing services, or consulting services, or any other commercial service; (v) use Program Materials to develop a product which is competitive with any of the software programs manufactured and/or marketed by Licensor; (vi) permit third-party access to, or use of, the Program Materials; or (vii) alter, remove or violate any of Licensor's or its licensors' copyrights, trade secrets or other proprietary rights related to the Program Materials.  If Licensee breaches any of these conditions, Licensor may immediately upon written notice to Licensee terminate the Agreement and the license granted herein.

4. NO WARRANTIES. THE PROGRAM MATERIALS ARE PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  LICENSOR DOES NOT WARRANT THAT ANY PROGRAM MATERIALS WILL BE PROVIDED ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR THAT ANY PROGRAM MATERIALS WILL FULFILL CUSTOMER'S REQUIREMENTS.  TO THE EXTENT THAT LICENSOR CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.

5. LIMITATION OF LIABILITY. Licensee acknowledges that the Program Materials are pre-release and experimental. Licensee further acknowledges that the Program Materials may have defects or deficiencies that cannot or will not be corrected by Licensor.  Licensee will indemnify and hold harmless Licensor from any claims based on Licensee's use of the Program Materials for any purpose, and from claims that later updates are incompatible with the Program Materials provided to Licensee hereunder. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, OR RELATED TO, THE PROGRAM MATERIALS OR THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY LEGAL THEORY, AND INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DATA, REVENUE OR GOODWILL, OR BUSINESS INTERRUPTION, EVEN IF LICENSOR HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  LICENSOR'S AND ITS LICENSORS' TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE PROGRAM MATERIALS OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTORY OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).  THE PARTIES ACKNOWLEDGE THAT THIS SECTION 5 REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES.

6. TERMINATION. This Agreement and the license granted herein shall terminate automatically at the end of the Trial Period unless earlier terminated in accordance with this Section 6.  Either party may terminate this Agreement upon written notice to the other upon any material breach by such other party.  Upon expiration or termination of this Agreement for any reason, Licensee shall return all copies of the Program Materials to Licensor.  This Agreement will terminate immediately without notice from Licensor if Customer fails to comply with any provision of this Agreement.  Either party may terminate this Agreement immediately should any Program Materials become, or in either party's opinion be likely to become, the subject of a claim of infringement or misappropriation of any intellectual property right. Upon termination, Customer must destroy all copies of the Program Materials. Sections 1, 3, 4, 5, 6, 8, 9, 10, 11, 13 and 15 shall survive termination or expiration of this Agreement.

7. FEEDBACK. Licensee agrees to evaluate and test the Program Materials and to provide Feedback to Licensor as reasonably requested by Licensor. Any test results, error data, reports, suggestions, comments, enhancements or other information or materials provided to Licensor relating to the Program Materials ("Feedback") is the exclusive property of Licensor. Licensee hereby assigns all Feedback to Licensor at no charge. Licensor may use Feedback in any manner and for any purpose, without limitation, liability or obligation to Licensee.

8. PROPRIETARY INFORMATION. The Program Materials are licensed to Customer, not sold, and title to the Program Materials and all associated intellectual property rights is retained by Licensor and its licensors.

9. CONFIDENTIALITY. Customer agrees that the Program Materials, and any other information, technical data, or know-how related to the Program Materials (including working papers), is Confidential Information of Licensor and its licensors.  "Confidential Information" will not include any such information, technical data, or know-how which: (i) is already or otherwise becomes publicly known, not as a result of any action or inaction of the Customer; or (ii) is rightfully in the Customer's possession without a duty of confidentiality, prior to disclosure by Licensor, as can be shown by the files and records of Customer immediately prior to disclosure. Customer agrees not to use or disclose any Confidential Information except as expressly permitted by this Agreement, and to protect the confidentiality of all Confidential Information and to take the same steps to prevent unauthorized disclosure or unauthorized use of the Confidential Information as Customer takes with its own confidential information (and in no event less than those actions standard in Customer's industry).

10. EXPORT CONTROLS. Customer acknowledges and agrees that the downloading, exporting or re-exporting of the Program Materials, either directly or indirectly and via any means, including electronic transfer, must be in compliance with the U.S. Export Administration Regulations and the laws of host countries, and Customer will comply strictly with all such laws and regulations. Licensor assumes no responsibility or liability for Customer's failure to obtain any necessary export approvals. Specifically, no Program Materials may be downloaded or exported to Cuba, Iran, North Korea, Sudan, and Syria, or to any other embargoed or otherwise restricted countries or end-users. By downloading or using the Program Materials, Customer agrees to the foregoing and represents and warrants that a) Customer is not located in, under the control of, or a national or resident of any such country; b) Customer is not on any of the restricted lists including U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Asset Control List of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, and Customer will not export to anyone on such lists without the necessary export licenses.

11. NOTICES. All notices to Licensor under this Agreement must be delivered in writing in person, by courier or by certified or registered mail (postage prepaid and return receipt requested) at the following address and will be effective upon receipt: 2300 Geng Rd., Suite 150, Palo Alto, CA 94303, USA.  To be effective, such notice must be delivered to both (a) the legal department and (b) the Chief Executive Officer.   Customer agrees that Licensor may provide notice to Customer electronically via e-mail or by posting the notice on the website at which this Agreement or the Program Materials were made available. Receipt of any such notice is the day that the notice is sent or posted by Licensor.

12. RELATIONSHIP OF THE PARTIES; BENEFICIARIES. The parties hereto are independent contractors.  Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties.  There are no third-party beneficiaries to this Agreement.

13. REMEDIES. Except as specifically provided otherwise in this Agreement, the parties' rights and remedies under this Agreement are cumulative and there shall be no obligation to exercise a particular  remedy.  Customer acknowledges that the Program Materials contain Licensor's valuable trade secrets and proprietary information and that any actual or threatened disclosure or unauthorized use or distribution of the Program Materials or Confidential Information will constitute immediate and irreparable harm to Licensor for which monetary damages would be an inadequate remedy and entitle Licensor to immediate injunctive relief without the need to post a bond or show actual monetary damages.

14. FORCE MAJEURE. Licensor shall not be liable to Customer for any failure or delay in performance caused by reasons beyond its control.

15. GENERAL PROVISIONS. Any action related to this Agreement, and the validity, performance, construction and interpretation of this Agreement shall be governed by applicable Federal law and the laws of the State of California, United States of America, excluding its conflicts of laws rules, as applied to agreements entered into in California between California residents.  The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. All disputes arising out of or relating to this Agreement shall be brought exclusively in the federal courts located in the Northern District of California or the state courts located in Santa Clara County, California, and the parties agree to submit to the exclusive jurisdiction and venue of such courts. Notwithstanding the foregoing, Licensor may enforce any judgment rendered by such court in any court of competent jurisdiction, and Licensor may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions. This Agreement may not be modified except in writing signed by a duly authorized representative of each party.  Customer may not assign this Agreement or any right granted hereunder, in whole or in part, without Licensor's prior written consent.  This Agreement represents the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, with respect to all matters covered in this Agreement. This Agreement is executed in the English language.