ARCADIA INSTANT END USER LICENSE AGREEMENT
1.1 Agreement. This Agreement establishes the terms and conditions under which Customer may use the Technology.
1.2 No Contradictory or Inconsistent Terms. In no event shall any supplemental, contradictory or inconsistent terms and conditions contained in any other document issued by Customer be binding upon Arcadia. Arcadia’s delivery of technology, software or services pursuant to a purchase order or similar document shall not constitute its acceptance of the supplemental, contradictory or inconsistent terms or conditions.
2.1 “Arcadia Instant” means the software product that interfaces with a supported Hadoop system and provides visualization capability via its front-end interface.
2.2 “Confidential Information” means all non-public information disclosed in tangible, visual or verbal form by Arcadia to Customer. Confidential Information may include, but is not limited to, the Technology, services, pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that Customer can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by Arcadia; (2) is or becomes publicly known through no wrongful act of Arcadia; or (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure.
2.3 “Intellectual Property Rights” means patents, design patents, copyrights, trademarks, know-how, trade secrets, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world (including any applications, registrations, or renewals thereto).
2.4 “Node” means each Hadoop data node, Hadoop name node, or a physical or virtual machine on which the Arcadia Platform is installed, configured, or otherwise operating or running.
2.5 “Production System” means a System that is used for conducting or facilitating Customer business, including without limitation reporting and analytics, making decisions, or providing insights related to business operations. A Production System does not include Staging Systems.
2.6 “Staging System” means a System that is used solely for internal development and testing purposes and is not a Production System.
2.7 “System” means a server or cluster of servers on which the Technology is installed, operating, or otherwise employed.
2.8 “Technology” means the Arcadia Instant and any other Arcadia products, software or other technology provided by Arcadia to Customer under this Agreement. The term “Technology” also includes any deliverables, corrections, patches, workarounds, updates and upgrades provided by Arcadia to Customer.
2.9 “Term” has the meaning set forth in Section 7.1.
3. LICENSE GRANTS AND RESTRICTIONS
3.1 License Grant. There are no implied licenses under this Agreement and Arcadia reserves all rights in and to the Technology not expressly granted to Customer under this Agreement. All Technology licensed pursuant to this Agreement is unpublished copyrighted material, constitutes trade secrets and proprietary data of Arcadia and is Confidential Information of Arcadia. Subject to Customer’s compliance with the terms and conditions of this Agreement, Arcadia grants to Customer during the Term a limited non-exclusive, non-sublicensable, non-transferable, revocable (pursuant to Section 7.2) license to install and use the Technology solely as permitted under Section 3.2.
3.2 License Scope.
3.2.(a) Customer may install and use the Technology on Production Systems for its internal business purposes of storing and analyzing data in the applicable Nodes.
3.2.(b) Customer may install and use the Technology on Staging Systems for testing, development, and QA purposes, solely as required to support the use of the Technology in accordance with Section 3.2(a).
3.2.(c) Customer may install and use the Technology for internal use Proof of Concept Systems.
3.3 Limits on Licenses. Customer may not do any of the following or permit a third party to do any of the following (in each case, directly or indirectly, in whole or in part):
3.3.(a) Transfer, sublicense, distribute, lease, rent, or commercially share (including timeshare) the Technology or any of Customer’s rights herein or provide direct access to the Technology to any of Customer’s customers or any other third party;
3.3.(b) Except as expressly stated herein, copy, reproduce, distribute, republish, download, display, posted or transmit, in any form or by any means, any part of the Technology;
3.3.(c) Remove or destroy any copyright notices or other proprietary markings contained on or in the Technology;
3.3.(d) Place a lien or encumbrance upon, or otherwise interfere with Arcadia’s ownership of and right to the Technology for any reason; or
3.3.(e) Modify, translate, reverse engineer, decrypt, decompile, disassemble, create derivative works based on, or otherwise attempt to discover the Technology source code or underlying ideas or algorithms, to the extent such restrictions are permitted by law.
3.4 Feedback. If Customer provides to Arcadia any comments, suggestions, or other feedback regarding the use, operation or functionality of the Technology, improvements to the Technology, or any applicable services, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features (collectively, “Feedback”), then Customer hereby grants to Arcadia an unlimited, perpetual, worldwide, royalty-free, irrevocable right and license to use, distribute, create derivative works of, and otherwise exploit the Feedback for any purpose and in any manner now known or developed in the future.
4.1 Fees. Use of the Technology is currently free, but we reserve the right to charge for future versions of the Technology.
5. WARRANTIES; DISCLAIMER OF WARRANTIES.
5.1 Disclaimers. The Technology is provided to Customer “AS IS” and any use of the Technology and all other services or materials provided under this Agreement by Arcadia is at Customer’s own risk. ARCADIA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ARCADIA AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION THAT: (1) THE TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS; (2) CUSTOMER’S USE OF THE TECHNOLOGY WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TECHNOLOGY WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS TO CUSTOMER’S PROPERTY OR ANY PERSON, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS RELATED TO OR ARISING FROM THE TECHNOLOGY PROVIDED UNDER THIS AGREEMENT.
6.1 Arcadia Ownership of Technology. Arcadia and its licensors retain all rights, title, and interest, and all Intellectual Property Rights, in and to the Technology, including any modifications, enhancements maintenance releases, corrections, patches, releases, workarounds, updates and upgrades thereto arising from the Technology or otherwise.
6.2 Open Source Materials. The Technology may include certain components licensed under open source licenses as identified in the applicable documentation. Arcadia will, upon written request, provide the source code of applicable open source software components and libraries included in the Technology, as required by their respective license agreements. Such open source components are not subject to the terms and conditions of Sections 3.1-3.3 of the Agreement. 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.
7. TERM AND TERMINATION
7.1 Term. The term of the Agreement shall begin on the date you accept the terms of this Agreement and extend until terminated by either party as allowed hereunder (the “Term”).
7.2 Termination. Either party may terminate this Agreement and the licenses granted under this Agreement for any reason or no reason.
7.3 Effects of Expiration or Termination. Upon expiration or termination of this Agreement for any reason, all licensed rights granted to Customer in this Agreement will immediately cease, and Customer will promptly discontinue all use of the Technology, erase all copies of the Technology from Customer’s computers or in its possession or control, and return to Arcadia or destroy all copies of the Technology and any other Arcadia Confidential Information on tangible media in Customer’s possession or control and certify in writing to Arcadia that it has fully complied with these requirements
7.4 Survival. The following provisions of this Agreement will remain in effect following the expiration or termination of this Agreement for any reason: 2 (Definitions), 3.4 (Feedback), 5.1 (Disclaimers), 6 (Ownership), 7.3 (Effects of Termination), 7.4 (Survival), 8 (Indemnification), 9 (Limitations of Liability), 10 (Confidentiality), Error! Reference source not found. (Publicity), and 11 (General).
Customer will defend at its own expense any action against Arcadia brought by a third party to the extent that the action is based upon (i) Customer’s use of the Technology in violation of law or regulation or breach of Section 11.4, or (ii) Customer’s use of the Technology to process data or personal information in violation of third party rights (including privacy rights) or breach of Section 11.3, and Customer will pay those costs and damages related to such claim or those costs and damages agreed to in a monetary settlement of such action.
9. LIMITATIONS OF LIABILITY
9.1 Exclusion of Certain Damages. IN NO EVENT WILL ARCADIA BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR RELIANCE DAMAGES, OR ANY DAMAGES ARISING FROM LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE TECHNOLOGY, EVEN IF ARCADIA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.
9.2 Limitation of Damages. ARCADIA’s TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING THE TECHNOLOGY) WILL NOT EXCEED $50. CUSTOMER AGREES THAT ARCADIA’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 9 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
Customer will not use any Confidential Information except as expressly permitted in this Agreement or as expressly authorized in writing by Arcadia. Customer shall use the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than a commercially reasonable standard of care. Customer may not disclose Confidential Information to any person or entity other than to those employees and contractors who need access to such Confidential Information solely for the purpose of fulfilling Customer’s obligations or exercising its rights hereunder. The foregoing obligations will not restrict Customer from disclosing Confidential Information: (1) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Customer gives reasonable notice to Arcadia prior to such disclosure; or (2) on a confidential basis to its legal and financial advisors.
11.1 Export. The Technology and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Technology and related technical data.
11.2 No Agency. Arcadia and Customer each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (1) give either party the power to direct or control the day-to-day activities of the other; (2) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (3) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.
11.3 Data Rights. Customer warrants and represents that it has obtained all rights, licenses, consents and waivers and permissions from the legitimate owners of the Customer data to allow the analysis of the information and creation of reports through the Technology.
11.4 Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder. Without limiting the foregoing, Customer warrants and covenants that it will comply with all then current laws and regulations of the United States and other jurisdictions relating or applicable to Customer’s use of the Technology.
11.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
11.6 Notices. Any notice required or permitted hereunder shall be in writing and shall be delivered as follows (with notice deemed given as indicated): (1) by personal delivery when delivered personally; (2) by established overnight courier upon written verification of receipt; (3) by facsimile or email transmission when receipt is confirmed in writing; or (4) by certified or registered mail, return receipt requested, upon verification of receipt. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section. Notices shall be sent to the following:
999 Baker Way, Suite 120,
San Mateo, CA – 94404
11.7 Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted according to the laws of California without regard to or application of choice-of-law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Mateo County, California and the parties hereby consent to the personal jurisdiction and venue therein.
11.8 Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of the Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted use of the Technology. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party’s rights under the pertinent provisions of the Agreement, without limiting its right to pursue any other legal remedies available to it.
11.9 Entire Agreement and Waiver. This Agreement shall constitute the entire agreement and contains all terms and conditions between Arcadia and Customer with respect to the subject matter hereof and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby. This Agreement may be changed only by written agreement signed by both Arcadia and Customer. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.
11.10 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that such provision will be revised to reflect the original intent to the maximum extent permissible under applicable law.
11.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered (including by electronic transmission), shall be deemed an original, and all of which shall constitute one and the same agreement.
11.12 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.
11.13 Assignment. Arcadia may freely assign this Agreement. Customer may not, without the prior written consent of Arcadia, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void.