Arcadia Enterprise End User License Agreement

Effective Date : July 27, 2017

LICENSEE SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT BEFORE USING ARCADIA DATA, INC.’S SOFTWARE. BY EXECUTING AN ORDER FORM AND/OR CLICKING “AGREE,” LICENSEE IS AGREEING THAT THESE TERMS WILL APPLY IF LICENSEE ACCESSES OR USES THE SOFTWARE.

IMPORTANT – READ CAREFULLY:

This Arcadia Enterprise End-User License Agreement (“EULA”) is a legal agreement between ARCADIA DATA, INC., a Delaware corporation (“Arcadia”), and the installing party (“Licensee”), for the installation and use of Arcadia’s enterprise software (the “Arcadia Enterprise”). Please read this EULA carefully. Licensee’s use of the Arcadia Enterprise is subject to the terms of this EULA. By using any portion or form of the Arcadia Enterprise, Licensee agrees to be bound by the terms of this EULA. If Licensee does not agree to the terms of this EULA, do not use the Arcadia Enterprise.

1. GRANT OF LICENSE.

Arcadia, as licensor, grants to Licensee a limited, non-exclusive, non-transferrable license to install and use Arcadia Enterprise for its internal business purposes of storing and analyzing data for a trial period separately agreed upon with Arcadia representatives, provided that in absence of such an agreement, access may be terminated at any time by Arcadia. Arcadia further permits Licensee to reproduce a reasonable number of the sets of technical documentation which Arcadia generally makes available, included printed updates, “Read Me” files and release notes (the “Doc Sets”). Neither Arcadia Enterprise, the Doc Sets, nor any portions thereof may be resold or redistributed in any form whatsoever. All rights not expressly granted to Licensee are reserved to Arcadia and/or its licensors. Licensee agrees that the licenses granted herein do not include the right to, that it will not attempt to, rent, lease, sublicense, loan, reverse compile, modify, translate, or disassemble the Arcadia Enterprise in whole or in part, or authorize others to do any of the foregoing.

2. ARCADIA ENTERPRISE OWNERSHIP.

Arcadia Enterprise is protected by copyright, patent and trade secret laws and international treaty provisions. No title to the intellectual property in the Arcadia Enterprise is transferred to Licensee. Licensee does not acquire any rights to the Arcadia Enterprise except as expressly set forth in this EULA. Arcadia shall retain full and complete title to the Arcadia Enterprise and all subsequent copies of the Arcadia Enterprise, regardless of the media or form on or in which the original copies may exist. The License is not a sale of the original Arcadia Enterprise or any of the underlying material.

Arcadia Enterprise may include certain components licensed under open source licenses as identified in the applicable documentation. Such open source components are not subject to the terms and conditions of Section 1. Instead, each such item is licensed under the terms of the open source license identified in the applicable documentation. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable open source license for the open source component.

3. COPYRIGHT.

All rights, title, and interest in and to the Arcadia Enterprise (including, but not limited to, any images, photographs, animations, video, audio, music and text incorporated into the Arcadia Enterprise), and any and all copies of the Arcadia Enterprise are owned by Arcadia or its licensors. Copyright laws and international treaty provisions protect the Arcadia Enterprise. Therefore, Licensee must treat the Arcadia Enterprise like any other copyrighted material. This EULA does not grant Licensee any rights to trademarks or services marks of Arcadia. The Arcadia Enterprise is licensed, not sold.

4. RESTRICTIONS ON USE.

Licensee may not: (a) use Arcadia Enterprise on any other systems, servers or devices except the physical or virtual server(s) associated with this installation, (b) distribute, share, sublicense, lend, lease or otherwise make Arcadia Enterprise available to any third party (on the Internet, an information network or tangible media, by broadcast or in any other manner), (c) modify, adapt, or create derivative works from or translate any part of Arcadia Enterprise, (d) reverse engineer, decompile or disassemble Arcadia Enterprise or otherwise attempt to obtain its source code, (e) remove or alter any copyright, trademark or other proprietary notice contained in Arcadia Enterprise or (f) use Arcadia Enterprise in any manner not set forth in this EULA or in Doc Sets.

5. THIRD PARTY SOFTWARE.

Arcadia Enterprise has been developed to operate with other software and technology owned and controlled by third parties. Licensee agrees that (a) Licensee will use such third party hardware, services, software or technology in accordance with this EULA, (b) Arcadia does not make any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party hardware, services, software or other technology, (c) no third party will have any obligation or liability to Licensee as a result of this EULA, (d) such third party materials may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this EULA, (e) any and all third party hardware, software or technology that may be distributed or used together with Arcadia Enterprise will be subject to Licensee explicitly accepting those separate licensing terms and conditions required for such use. The inclusion of any third party hardware, services, software or technology does not imply an endorsement by Arcadia of the third party hardware, services, software or technology.

6. ASSIGNMENT.

Licensee may not assign any right under this EULA, including to any affiliate, subsidiary, or joint venture, without the prior written consent of Arcadia. Any purported assignment by Licensee shall be null and void. Arcadia may assign this Agreement without limitation. To the extent that this prohibition may be unenforceable, any such assignment must be subject to the terms and condition of this EULA.

To the extent Arcadia gives its written consent to an assignment or transfer of Arcadia Enterprise to the U.S. Government, Arcadia Enterprise may only be transferred with “Restricted Rights”, as that term is defined in the Department of Defense (“DOD”) Supplement to the Federal Acquisition Regulations (“DFARS”) in paragraph 252.227-7202.32 (c)(1) if to the DOD, or, if Arcadia Enterprise is supplied to any unit or agency of the U.S. Government other than DOD, the U.S. Government’s rights in Arcadia Enterprise shall be no greater than those set forth in FAR 52.227-19(c)(1) or (c)(2), Commercial Computer software – Restricted Rights; or FAR 52.227-14, Rights in General Data Alternative III, as applicable.

7. TERMINATION.

Licensee’s right to use the Arcadia Enterprise will automatically terminate upon expiration of license keys or if Licensee fails to comply with any provision of this EULA. If Licensee’s right to use Arcadia Enterprise is terminated, Licensee must: (a) cease all use of Arcadia Enterprise, (b) destroy the original and all copies of Arcadia Enterprise and (c) permanently delete all copies of the Arcadia Software from the computer on which it has been installed. Sections 2, 4, 8 through 11 and 13 through 19 shall survive the termination of this EULA.

8. CONFIDENTIALITY.

Arcadia Enterprise may include Confidential Information that is secret and valuable to Arcadia and its licensors. Licensee is not entitled to use or disclose that Confidential Information other than strictly in accordance with the terms of this EULA. Licensee shall not disclose Confidential Information to any third parties and shall not to use any Confidential Information for any purpose except as required to use Arcadia Enterprise consistent with this EULA. For the purposes of this EULA, “Confidential Information” shall mean data and information of a proprietary or confidential nature, including, but not limited to, trade secrets, computer programs, product plans, business strategies, proprietary tools, methodologies, software, and the serial numbers that accompany Arcadia Enterprise.

9. NO WARRANTY.

ARCADIA ENTERPRISE IS PROVIDED “AS IS.” TO THE FULL EXTENT ALLOWABLE BY LOCAL LAW, ARCADIA DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ARCADIA OR A ARCADIA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. WITHOUT LIMITATION OF THE FOREGOING, ARCADIA AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT: (a) ARCADIA ENTERPRISE WILL BE ERROR-FREE, (b) LICENSEE’S USE OF ARCADIA ENTERPRISE WILL BE UNINTERRUPTED OR ERROR-FREE, (c) ARCADIA ENTERPRISE WILL MEET LICENSEE’S REQUIREMENTS OR (d) ARCADIA ENTERPRISE WILL OPERATE WITH THE HARDWARE OR SOFTWARE CONFIGURATION LICENSEE CHOOSES.

10. LIMITATION ON LIABILITY.

ARCADIA’S MAXIMUM LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS EULA SHALL BE LIMITED TO ONE THOUSAND DOLLARS ($1,000) AND, WITH RESPECT TO CLAIMS INVOLVING THE FULL VERSION ONLY, TO THE AMOUNT LICENSEE PAID ARCADIA FOR THE ARCADIA SOFTWARE PROVIDED HEREUNDER. LICENSEE EXPRESSLY AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION, AND ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THESE LIMITATIONS, LICENSEE’S COST FOR THE LICENSE GRANTED HEREUNDER WOULD BE HIGHER.

11. EXCLUSION OF REMEDIES.

WITHOUT LIMITING ANY OF THE DISCLAIMERS OR LIMITATIONS SET FORTH IN PARAGRAPHS 9 AND 10, ABOVE, IN NO EVENT SHALL ARCADIA BE LIABLE TO LICENSEE OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOST OR CORRUPTED DATA, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE ARCADIA ENTERPRISE, THIS EULA OR THE RELATIONSHIP OF THE PARTIES, WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED.

12. SPECIFIC RIGHTS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE. LICENSEE’S SPECIFIC RIGHTS MAY VARY FROM JURISDICTION TO JURISDICTION.

13. EXPORT RESTRICTIONS.

Licensee shall comply with any and all applicable export laws, restrictions and regulations of the U.S. Department of Commerce, the U.S. Department of Treasury and any other U.S. or foreign agency or authority. Licensee shall not export or re-export or allow the export or re-export of the Arcadia Enterprise in violation of any such law, restriction or regulation, including, without limitation, export or re-export to Crimea, Cuba, Iran, North Korea, Sudan, Syria or any other country subject to applicable U.S. trade embargoes, or to any party on the U.S. Export Administration Table of Denial Orders or the U.S. Department of Treasury List of Specially Designated Nationals and Blocked Persons, or to any prohibited destination in any of the Country Groups specified in the then current Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations). Licensee shall defend, indemnify and hold Arcadia and its licensors harmless from any claims arising out of Licensee’s violation of such export control laws. By accepting this EULA, Licensee confirms that Licensee is not a resident or citizen of any country currently embargoed by the U.S.A. list of embargoed countries is available at the official web site of the Office of Foreign Assets Control of the U.S. Department of the Treasury at: http://www.treas.gov/ofac/.

14. UPDATES; ERROR REPORTS; REPORTING.

Arcadia may from time to time make available to Licensee updates for Arcadia Enterprise, subject to the terms and conditions of this EULA, or, in Arcadia’s sole discretion, Arcadia may condition release of such upgrades to Licensee upon Licensee’s acceptance of another EULA or other execution of a separate agreement. If Licensee should elect to install or otherwise use updates, Licensee’s use of such updates will be subject to the applicable license and the terms and conditions of this EULA or other agreement.

Arcadia Enterprise automatically communicates with Arcadia’s systems to send error reports and to update and improve the software. Reports include data which may include, but not be limited to, information about the error, any associated crash and the operating system from which Arcadia Enterprise is being accessed. Licensee may opt out of sending error reports by changing Licensee’s settings in Arcadia Enterprise settings menu.

15. RECORDS AND REPORTING

At Arcadia’s written request, not more frequently than once annually, Customer shall furnish Arcadia with a signed certification accurately confirming the extent to which the software is being used pursuant to the provisions of this Agreement. If available, Customer will use reporting features contained within the software to generate and deliver such reports to Arcadia.

During the Term and for a period of one (1) year thereafter, Customer will maintain complete and accurate books, records and electronic backups in connection with its use of the software, in sufficient detail to verify Customer’s compliance with the terms and conditions of this Agreement. At Arcadia’ written request and expense, Customer will provide Arcadia a copy of such books and records to verify compliance and such information shall be treated as Customer Confidential Information

16. PUBLICITY RIGHTS.

Licensee grants Arcadia the right to identify and include Licensee as a customer in promotional material for Arcadia Enterprise.

17. MISCELLANEOUS.

This EULA will be binding upon and inure to the benefit of Arcadia and Licensee, and our respective successors and permitted assigns. If any provision of this EULA is determined to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other provision of this EULA. Any waiver of any breach or failure to enforce any provision of this EULA will not be deemed a future waiver of such term or a waiver of any other provision. Any waiver, amendment, supplementation or modification of any provision of this EULA will be effective only if it is in writing and signed or posted by Arcadia.

18. GOVERNING LAW.

This EULA shall be governed by the laws of the United States and the State of California, irrespective of California’s conflicts of laws rules. Any action arising out of or relating to this EULA may be brought exclusively in the appropriate state or federal court in San Mateo County, California and Arcadia and Licensee irrevocably consents to the jurisdiction of such courts and venue in Santa Clara County, California.

19. ENTIRE AGREEMENT.

This EULA constitutes the complete and exclusive agreement between Licensee and Arcadia which supersedes any prior agreement, proposal, written or oral, and any other communication relating to the subject matter of this EULA.