Evaluation License Agreement

ITTIA DB (TM) DATABASE EVALUATION LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY: THIS IS A BINDING LICENSE AGREEMENT BETWEEN YOU AND ITTIA L.L.C. FOR THE ACCOMPANYING ITTIA DATABASE SOFTWARE PRODUCT AND ANY RELATED DOCUMENTATION. BY CLICKING THE "I ACCEPT" BUTTON, YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY) AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT REGARDING YOUR USE OF THE PRODUCT AND ACKNOWLEDGE AND AGREE WITH ALL THE TERMS AND CONDITION. IF YOU AGREE TO THE TERMS OF THIS AGREEMENT, CLICK THE "I ACCEPT" BUTTON TO PROCEED. IF YOU DO NOT AGREE, CLICK THE "I DISAGREE" BUTTON TO TERMINATE THIS PROCESS.

  1. NOTICE. This is a legal Evaluation License Agreement ("Agreement") between you (the "Development Entity") and ITTIA L.L.C, a Washington Limited Liability Company ("ITTIA"). By installing, copying or otherwise using the products accompanying this Agreement, which include(s) computer software and "online" or electronic documentation, associated media, and printed materials, you agree to be bound by the terms and conditions of this Agreement. The right to use the Products is time-limited. All rights granted to Development Entity in this Agreement will be void after the end of the evaluation period, which is no later than 31 days after Development Entity received the Products.

  2. SUBJECT MATTER OF THE LICENSE. This agreement is a novation of all prior agreements, and an integration of all proposals and representations between ITTIA and you, regarding all ITTIA software in your possession, including the contents of any sealed media package(s), earlier releases of the software, all accompanying written materials, and prior written agreements, whether contained in manuals, sealed media package(s) or otherwise (hereafter referred to as "Products"). The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. ITTIA retains all rights not expressly granted. No title, property rights or copyright in the Products or in any modifications to the Products shall pass to the Development Entity under any circumstances.

  3. LICENSE TO EVALUATE. ITTIA grants you a limited, non-exclusive, nonassignable, nontransferable license to make and use copies of the Products for the sole purpose of evaluating the Products. This license offers the right to evaluate the Products for development of computer programs in compiled, linked, executable form (your "Application Programs"), provided none of your Application Programs that include the Products constitute a database management system product which could be used to commercially compete with any ITTIA Products.

  4. OTHER RESTRICTIONS. The licenses granted herein are personal to the Development Entity and Application Programs specified during the evaluation. The Development Entity may be an individual or organization. The Entity may be a division or subsidiary of a larger organization or the affiliate of a smaller organization. Additional licenses for development by the Development Entity or its affiliates must be separately obtained from ITTIA. As the licensed Development Entity you may not develop, use, reproduce, modify, distribute, disclose, or transfer the Products except as allowed by this license. You may not sell, sublicense, rent, lease, assign, give, or otherwise transfer any part of the Products or this license. You may not retain copies, even of prior versions of the Products, after termination of this license. Your obligations under this agreement survive any termination of the licenses granted by this agreement. You shall not distribute any software statically or dynamically linked with the Products.

  5. OWNERSHIP AND COPYRIGHT. The Products are owned by ITTIA and are protected by national copyright laws and international treaty provisions. The Products contain proprietary information. Therefore you must protect the Products like any other copyrighted material ensuring that anyone with access to the Products refrains from unauthorized reproduction, use or disclosure.

  6. INDEMNIFICATION. You agree to indemnify, hold harmless, and defend ITTIA from and against any claims or lawsuits, including attorneys' fees that arise or result from the use or distribution of Products distributed under this license, including any claim that your Application Programs infringe any rights of any third parties.

  7. TERM AND TERMINATION. This license is granted for evaluation purpose only. All grants of license herein expire 31 days after receiving the software. After this date you must either purchase the software license, or destroy all copies of the software, all derivative works. The licenses granted herein may be terminated by returning or destroying all copies of the Product materials within your control and so notifying ITTIA in writing after ITTIA is completely paid. The above licenses, including your right to use the Products, will terminate automatically if you infringe ITTIA copyrights or breach this agreement. ITTIA may suspend or terminate the above licenses, with prior notice and opportunity to cure, if you fail to pay any amount due ITTIA or any ITTIA distributor, dealer, or subsidiary. Termination of your licenses does not impair third party rights in programs lawfully distributed prior thereto, nor does termination affect your obligations under this agreement.

  8. LIMITED WARRANTY. THE PRODUCTS IS LICENSED TO DEVELOPMENT ENTITY “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITTIA ON BEHALF OF ITSELF AND ITS DISTRIBUTORS AND RESELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH REGARD TO THE PRODUCT. ITTIA DOES NOT WARRANT THAT THE PRODUCTS WILL SATISFY DEVELOPMENT ENTITY REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED. ALL USE OF AND RELIANCE ON THE PRODUCTS IS AT THE SOLE RISK OF AND RESPONSIBILITY OF DEVELOPMENT ENTITY.

  9. Non-Disclosure of Confidential Information. The parties agree that Confidential Information shall mean information covering the following: (i) pricing of the Products (ii) the Products, and (ii) the Development Entity’s project and business details, disclosed by either of the parties to the other party under this Agreement. Both parties agree to maintain Confidential Information in confidence by using a reasonable degree of care in order to ensure that no unauthorized persons shall have access to the Confidential Information. The parties agree that the terms of this section shall continue in full force and effect irrespective of the expiration or termination of this Agreement for a period of three (3) years from the Effective Date (as specified below) of this Agreement unless otherwise specified in a future agreement between the parties. ITTIA and Development Entity further agree that each party shall protect the existence and terms of this Agreement, including information about the evaluation of the Products in Development Entity’s business and terms around such use, as Confidential Information. Confidential Information shall not include that information which (i) becomes part of the public domain through no breach by any of the parties; (ii) is independently developed without use of Confidential Information; or (iii) is rightfully disclosed by a third party.

  10. BENCHMARK. You may conduct internal benchmark testing of the Products. You may disclose the results of any benchmark test of the Products, provided that you comply with the following terms: (1) you must disclose all the information necessary for replication of the tests, including complete and accurate details of your benchmark testing methodology, the test scripts/cases, tuning parameters applied, hardware and software platforms tested, the name and version number of any third party testing tool used to conduct the testing, and complete source code for the benchmark suite/harness that is developed by or for you and used to test both the Product and the competing implementation(s) to ITTIA no later than 30 days after termination of this Agreement; (2) you must disclose the date(s) that you conducted the benchmark tests, along with specific version information for Products tested, including the Products' various Components to ITTIA; (3) your benchmark testing was performed using all performance tuning and best practice guidance set forth in the product documentation and uses the latest updates, patches and fixes available; (4) it shall be sufficient if you make the disclosures provided for above at a publicly available location such as a website, so long as every public disclosure of the results of your benchmark test expressly identifies the public site containing all required disclosures; and (5) nothing in this provision shall be deemed to waive any other right that you may have to conduct benchmark testing. The foregoing obligations shall not apply to your disclosure of the results of any customized benchmark test of the Product, whereby such disclosure is made under confidentiality in conjunction with a bid request by a prospective customer, such customer's application(s) are specifically tested and the results are only disclosed to such specific customer. Notwithstanding any other agreement you may have with ITTIA, if you disclose such benchmark test results, ITTIA shall have the right to disclose the results of benchmark tests it conducts of your products that compete with the Product, provided it complies with the same conditions above.

  11. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. In no event shall ITTIA, its resellers, or suppliers be liable for any consequential damages whatever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use the Products, whether in an action based on contract or tort, including negligence or strict liability, even if ITTIA has been advised of the possibility of such damages. ITTIA's total liability under this agreement is limited in the aggregate to amounts paid to ITTIA for this software and license.

  12. U.S. GOVERNMENT RESTRICTED RIGHTS. ITTIA software and documentation are provided with restricted rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14(g)(3) and subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/manufacturer is ITTIA, WWW.ITTIA.COM.

  13. SEVERABILITY. Whenever possible, each provision of this agreement shall be interpreted in such a manner as to be valid and effective under applicable law. If any provision is invalid, the remaining provisions remain enforceable.

  14. DISPUTES. The laws of the State of Washington, U.S.A., without regard to its conflicts of law rules, control this agreement, and the United Nations Convention on the International Sale of Goods does not apply. It is enforceable by ITTIA or its distributors and dealers. Disputes will be finally resolved in arbitration, before one arbitrator, pursuant to UNCITRAL Rules of Arbitration and conducted in Bellevue, Washington, U.S.A. The prevailing party in any action related to an alleged infringement of ITTIA proprietary rights is entitled to recover its costs and expenses, including reasonable attorneys' fees. The Development Entity consents to personal jurisdiction in the federal and state courts in the State of Washington, U.S.A. Judgment upon the arbitral award may be entered in any court having jurisdiction thereof. These provisions shall survive the termination of this agreement, regardless of the cause of such termination.