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EULA-CE.txt
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OmniSci Community Edition End User License Agreement
Last Updated: 27-September-2018
This End User License Agreement ("Agreement") is a legal agreement
between you or the company or legal entity you represent ("you", "your"
and "yours") and OmniSci, Inc. ("OmniSci") for the use of the Community
Edition of the OmniSci Core Database, OmniSci Immerse Visual Analytics
Client and OmniSci Rendering Engine (collectively, the "Software"). By
Using (as defined below) the Software, you (a) acknowledge that you
have read, understand and agree to the terms and conditions of this
Agreement, and (b) represent that you have the legal authority to enter
into this Agreement on your own behalf or, if applicable, on behalf of
the legal entity you represent. If do not agree with all of the terms
and conditions of this Agreement or do not have such authority, you may
not Use the Software.
1. DEFINITIONS
1.1 "Cloud Provider" means a provider of cloud computing services,
including, without limitation, Amazon Web Services, Google Cloud
Platform, and Microsoft Azure, that is approved in advance by OmniSci in
writing.
1.2 "Cloud Provider Terms" means the agreements, terms, conditions and
policies of your Cloud Provider governing your use of Cloud Services.
1.3 "Cloud Services" means the cloud computing services provided to you
by a Cloud Provider pursuant to an agreement between you and the Cloud
Provider.
1.4 "Documentation" means any user manuals or any other documentation
relating to the Software that OmniSci provides or makes available to
you.
1.5 "Use" or "Using" means to install, load, run, execute, access,
activate the processing capabilities of the Software and display the
results thereof.
2. LICENSE
2.1 License Grant. Subject to your compliance with the terms and
conditions of this Agreement and any applicable Cloud Provider Terms,
OmniSci hereby grants you a limited, non-exclusive, non-transferable,
non-sublicenseable license, solely for your internal non-commercial
(i.e., non-competitive, development, research, testing and evaluation)
and/or academic purposes, to (a) Use the Software, in object code form
only, on computing resources owned and/or operated by you or your Cloud
Provider, and (b) use the Documentation as reasonably necessary to Use
the Software and/or allow your Cloud Provider to provide you with Cloud
Services. You may make a reasonable number of copies of the Software and
Documentation for archival and back-up purposes only, provided that you
include on each such copy all copyright or other proprietary notices
contained on the Software and Documentation. All Software will be
delivered by electronic means and will be deemed delivered when it is
first made available for your download or Use. If you are interested in
using the Software for commercial purposes (i.e., in connection with the
provision and support of commercial products or services, or for
organizational daily or routine business purposes), please contact
OmniSci to obtain a commercial license.
2.2 Restrictions. Except as expressly permitted hereunder, you will not
(a) decompile, disassemble or reverse engineer the Software, except to
the extent expressly permitted by applicable law notwithstanding a
contractual prohibition to the contrary, (b) modify, publish, transmit,
license, sublicense, assign, transfer, sell, grant a security interest
in, distribute, reproduce, create derivative or collective works from
the Software or the Documentation, (c) disclose, divulge, communicate,
or allow access to the Software or Documentation to any person except
your authorized agents, employees, or other parties expressly authorized
hereunder (such as your Cloud Provider), (d) allow the Software to be
used on an external commercial rental, time-sharing, or subscription
basis or service bureau arrangement, (e) remove or modify any
proprietary markings or any notice of OmniSci's or its licensors'
proprietary rights included in the Software or Documentation, (f)
publish a review of the Software, information regarding any bugs or
defects in the Software, or the results of any benchmark tests run on
the Software, in each case, without the prior written consent of
OmniSci, (g) Use the OmniSci Rendering Engine with any software other
than the OmniSci Core Database and OmniSci Immerse Visual Analytics
Client, or (h) permit or assist any third party in doing any of the
foregoing. If you Use the Software via Cloud Services, you are
responsible for ensuring that your Cloud Provider does not violate any
of the foregoing restrictions.
2.3 Ownership. The Software and Documentation are licensed, not sold.
You acknowledge that (a) all right, title and interest in all copies of
the Software and Documentation, and all intellectual and proprietary
rights therein, are and will remain with OmniSci or its third-party
licensors, (b) no right or interest in the Software or Documentation is
conveyed other than the limited license granted by this Agreement, (c)
the Software and Documentation are protected by the copyright laws of
the United States and by international treaties, and (d) the Software
and Documentation embody valuable proprietary information of OmniSci.
2.4 Feedback. To the extent you provide OmniSci with any suggestions,
comments, ideas, corrections, improvements, feedback or other
information about the Software in either verbal or written form
(collectively, "Feedback"), you hereby grant OmniSci a non-exclusive,
worldwide, perpetual, irrevocable, transferable, sublicenseable, royalty
free, fully paid-up right and license to access, use, reproduce,
transmit, display, publish, distribute, modify and adapt and create
derivative works from such Feedback in connection with any product or
service or for any other purpose, without any obligations to you or
restrictions of any kind.
2.5 Third-Party Software. The Software may contain or be provided with
certain third-party software licensed by its owners under its own
license (collectively, the "Third-Party Software"). Third-Party Software
is subject to the terms of the third-party software license accompanying
or otherwise applicable to that Third-Party Software ("Third-Party
License"). The Third-Party Licenses are set forth in the Documentation.
The terms of the applicable Third-Party License will apply to the
Third-Party Software independent of the terms of this Agreement. You may
not use any component contained in or provided with the Software on a
standalone basis or to interoperate with any program(s) other than the
Software.
2.6 High Risk Activities. The Software is not designed or intended for
use in medical, nuclear, aviation, navigation, military or other high
risk activities where failure of the Software could result in death,
personal injury and/or substantial property damage. You will not use the
Software any such purposes, and OmniSci and its licensors expressly
disclaim and are released from any responsibility or liability for any
and all damages that may be incurred due to the use of the Software in
such applications.
2.7 Audit. OmniSci and its licensors will have the right to gain access
to, examine and audit, during normal business hours upon reasonable
prior written notice to you, all of your locations, computing resources,
records, accounts and other information for purposes of determining your
compliance with this Agreement. You agree to provide reasonable
assistance and access to information in the course of any such audit.
Any such audit will be at OmniSci's expense provided that, if an audit
reveals that you have exceeded the scope and number of licenses or have
otherwise breached this Agreement, in addition to acquiring additional
licenses or otherwise curing such breach, you will reimburse OmniSci for
the reasonable cost of the audit. OmniSci will also have the right to
share the results of any such audit with our licensors.
3. SUPPORT
3.1 Support Services. OmniSci does not provide formal support for the
Community Edition of the Software. However, you will also have access to
OmniSci's Community Forum where other users of the Software may offer
tips, best practices, troubleshooting and informal training with respect
to the Software.
3.2 Diagnostic Data. The Software may transmit diagnostic data relating
to the Software, including, without limitation, system specifications
and performance, capacity usage, system faults, and other information of
a similar nature (collectively, "Diagnostic Data") to OmniSci.
Diagnostic Data may also include general product use information,
including, without limitation, navigation, links, buttons, refreshes,
errors, dashboard characteristics (chart count and types, filter count),
and data size (row and column count). Diagnostic Data may be sent on a
periodic basis and upon a failure or fault in the Software. If you block
the transmission of Diagnostic Data, the Software may not function. In
addition to the automatic transmission of Diagnostic Data, you may
choose to provide additional data files ("Core Dumps") to OmniSci for
technical analysis in the context of receiving support. You hereby grant
OmniSci a non-exclusive, worldwide, perpetual, irrevocable,
transferable, sublicenseable, royalty free, fully paid-up license to
access, use, reproduce, transmit, display, publish, distribute, modify,
adapt and create derivative works from the Diagnostic Data and Core
Dumps in connection with providing support, troubleshooting the Software
and enhancing, improving, and developing the Software and related
products and services. OmniSci will take commercially reasonable steps
to protect your Diagnostic Data and Core Dumps from unauthorized access
or disclosure. OmniSci reserves the right to disclose Diagnostic Data
and Core Dumps (a) to OmniSci partners subject to confidentiality
obligations to assist with specific support issues, or (b) in an
anonymous and aggregated form that does not link such information to you
or to any identifiable person.
4. CONFIDENTIAL INFORMATION
As used herein, "Confidential Information" means all nonpublic information
disclosed by OmniSci, its affiliates and licensors that is designated as
confidential or that, given the nature of the information or circumstances
surrounding its disclosure, should reasonably be understood to be confidential.
Confidential Information includes (a) nonpublic information relating to ideas,
features, functions, organization, structure, graphics, or user interfaces of
the Software, and (b) performance benchmarks and other test results of the
Software. Confidential Information does not include any information that you
can document (i) is or becomes publicly available without breach of this
Agreement, (ii) was known to you at the time of your receipt from OmniSci,
(iii) is received from a third party that is not subject to an obligation of
confidentiality or whose disclosure of such information is not in violation of
applicable law, or (iv) is independently developed by you without reference to
Confidential Information. You may use Confidential Information only in
connection with your use of the Software and Documentation as permitted under
this Agreement. You will take all reasonable measures to protect Confidential
Information from unauthorized disclosure, dissemination or use using the same
degree of care you use to protect your own confidential information of a
similar nature, but in no event less than a reasonable degree of care.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence upon your first Use of the
Software and continue until terminated in accordance with this Section.
5.2 Termination. Either party will have the right to terminate this
Agreement upon written notice to the other party, in the event that the
other party (a) breaches any material terms or obligations under this
Agreement and fails to cure such breach within 30 days after notice
thereof, or (b) dissolves, is declared insolvent or bankrupt, makes an
assignment for the benefit of creditors, has a receiver appointed, or is
the subject of any proceeding under any bankruptcy or insolvency laws,
which proceeding, if initiated against such party, is not dismissed
within 30 days. This Agreement will automatically terminate in the event
that you violate Sections 2.1, 2.2, 2.6, or 4. You may terminate this
Agreement and your Use of the Software at any time for convenience with
or without notice to OmniSci.
5.3 Termination by Your Cloud Provider. You acknowledge that your Cloud
Provider may have the right to suspend or terminate your Cloud Services
pursuant to the Cloud Provider Terms, which will also terminate your Use
of the Software if hosted via Cloud Services.
5.4 Effect of Termination. Upon any termination of this Agreement, you
will (a) immediately cease all Use of the Software and Documentation,
(b) return to OmniSci, destroy or erase all copies (electronic or
otherwise) of the Software, Documentation, and any Confidential
Information you may have received from OmniSci, and (c) within 10 days
of such termination, furnish written notice of such return, destruction
or erasure to OmniSci.
5.5 Survival. The following sections will survive any termination of
this Agreement: 1, 2.2, 2.7, 4, 5.4, 5.5, 6, 7, 8, and 9.
6. WARRANTY DISCLAIMER
THE SOFTWARE IS PROVIDED "AS IS", AND OMNISCI AND ITS LICENSORS MAKE NO OTHER
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT,
ALL OF WHICH ARE HEREBY EXCLUDED AND DISCLAIMED. WITHOUT LIMITING THE
FOREGOING, OMNISCI DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR
REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE
OR ERROR FREE, OR THAT ALL DEFECTS IN THE SOFTWARE CAN OR WILL BE CORRECTED.
7. INDEMNITY
OmniSci will have no liability to you, and you will, on the terms set forth
above, defend and indemnify OmniSci and its licensors against claims of
infringement based on (a) Use of the Software not in accordance with the
Documentation or in violation of the terms and conditions of this Agreement,
(b) the Use or combination of the Software with any other software or hardware
not provided by OmniSci, if such infringement would not have occurred but for
such Use or combination, (c) any modification of the Software by anyone other
than OmniSci, (d) the Use of other than the most current version of the
Software, if such version was made available by OmniSci for no additional fees
with notice that such version was being provided in order to avoid an alleged
or potential infringement, or (e) claims of infringement of intellectual
property rights of you or your affiliates. You will also defend, indemnify and
hold OmniSci and its licensors harmless from and against any claims, damages,
losses, liabilities, costs, and expenses (including reasonable attorneys' fees)
arising out of or relating to your breach of this Agreement, violation of any
applicable law, your breach of any applicable Cloud Provider Terms, or any
misuse of the Software or violation of OmniSci's or its licensors' rights
therein by your Cloud Provider.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL OMNISCI OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY
FOR LOSS OF PROFITS, GOODWILL, USE OR DATA, OR FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
9.1 Assignment. You may not delegate any of your obligations under this
Agreement, or assign or transfer this Agreement or any of your rights
hereunder, whether by operation of law or otherwise, without the prior
written consent of OmniSci. A change of control involving you will
constitute an assignment for purposes of the foregoing restriction. Any
delegation, assignment or transfer of this Agreement in violation of
this Section 10.1 will be void and of no force and effect and a material
breach of this Agreement. OmniSci may freely assign or transfer this
Agreement. Subject to the foregoing, this Agreement will be binding
upon, and inure to the benefit of the parties and their respective
successors and assigns.
9.2 Compliance with Laws. You will comply with all applicable laws and
regulations relating to your Use of the Software, including without
limitation, those relating to export and import, privacy and personal
data protection.
9.3 Entire Agreement. This Agreement sets forth the complete
understanding between you and OmniSci with respect to the subject matter
hereof and supersedes all prior understandings and communications
relating thereto. No term or condition of a purchase order or other
document you submit to OmniSci which is different from, inconsistent
with, or in addition to the terms and conditions set forth herein will
be binding upon OmniSci. To the extent that this document may constitute
an acceptance, this acceptance is expressly conditioned on your assent
to the terms and conditions set forth herein.
9.4 Export Control. You may not Use or otherwise export or reexport the
Software except as authorized by United States law and the laws of the
jurisdiction in which the Software was obtained. In particular, but
without limitation, the Software may not be exported or reexported (a)
into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S.
Department of Commerce Denied Person's List or Entity List. By Using the
Software, you represent and warrant that you are not located in any such
country or on any such list. You also agree that you will not Use the
Software for any purposes prohibited by United States law, including,
without limitation, the development, design, manufacture or production
of missiles, nuclear, chemical or biological weapons.
9.5 Force Majeure. Neither party will be responsible for any failure to
perform its obligations under this Agreement (other than obligations to
pay money) caused by an event beyond its reasonable control, including
but not limited to, wars, riots, labor strikes, natural disasters, the
infrastructure of the Internet, or any law, regulation, ordinance or
other act or order of any court, government or governmental agency.
9.6 Governing Law; Disputes. This Agreement will be governed by and
construed in accordance with the laws of the State of California, as
applied to agreements entered into and to be performed entirely within
California between California residents. This Agreement will not be
governed by the United Nations Convention on Contracts for the
International Sale of Goods, the application of which is expressly
excluded. Any dispute or claim arising out of or relating to this
Agreement, except for those relating to a breach of confidentiality by
you, the infringement of OmniSci's intellectual property rights or the
access or Use of the Software in violation of this Agreement (a
"Claim"), will be resolved by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). You and OmniSci will select a single, mutually
acceptable arbitrator knowledgeable about issues relating to the subject
matter of this Agreement. In the event that you and OmniSci are unable
to agree to such a selection, AAA will appoint a single neutral
arbitrator knowledgeable about issues relating to the subject matter of
this Agreement to preside over the matter. The seat of arbitration will
be San Francisco, California. The arbitration will be conducted in the
English language, and at the option of the party seeking relief, by
telephone, online, or based solely on written submissions. The
arbitrator will not have the authority to modify any provision this
Agreement or to award punitive damages. Unless the arbitrator finds the
arbitration was frivolous or brought for an improper purpose, the
parties will split equally the costs of the arbitration. To the fullest
extent permitted by applicable law, you and OmniSci each agree that any
proceeding to resolve a Claim will be conducted only in the respective
party's individual capacity and not as a plaintiff or class member in
any purported class, consolidated, multiple plaintiff or representative
action ("Class Action"). If for any reason a Claim proceeds in court
rather than in arbitration, such Claim will be brought only in a court
of competent jurisdiction in San Francisco, California, both you and
OmniSci agree to accept and submit to the personal jurisdiction of such
court, and you and OmniSci each waive any right to a jury trial. You and
OmniSci expressly waive any ability to maintain any Class Action in any
forum. If the Claim is subject to arbitration, the arbitrator will not
have authority to combine or aggregate similar claims or conduct any
Class Action nor make an award to any person or entity not a party to
the arbitration. Any claim that all or part of this Class Action waiver
is unenforceable, unconscionable, void, or voidable may be determined
only by a court of competent jurisdiction and not by an arbitrator. In
no event will any Claim, or any other action or proceeding by you
(including arbitration under this Section 10.7) be instituted more than
1 year after the cause of action arose. Any judgment on the award
rendered by the arbitrator may be entered in any court of competent
jurisdiction. If a court of competent jurisdiction finds the foregoing
arbitration provisions invalid or inapplicable, you and OmniSci each
agree to the exclusive jurisdiction of the Federal and State courts
located in San Francisco, California, and you and OmniSci each agree to
submit to the exercise of personal jurisdiction of such courts for the
purposes of litigating any applicable Claim.
9.7 Government End Users. The Software and Documentation are "Commercial
Items", as that term is defined at 48 C.F.R. 2.101, consisting of
"Commercial Computer Software" and "Commercial Computer Software
Documentation", as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R.
227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R.
227.7202-1 through 227.7202-4, as applicable, the Commercial Computer
Software and Commercial Computer Software Documentation are being
licensed to U.S. Government end users and U.S. Government contractors
(a) only as Commercial Items and (b) with only those rights as are
granted to all other end users pursuant to the terms and conditions
herein.
9.8 Modification; Waiver. This Agreement may not be modified or amended
except pursuant to a written instrument signed by both parties. The
waiver by either party of a breach of any provision hereof will not be
construed as a waiver of any succeeding breach of the same or any other
provision, nor will any delay or omission on the part of such party to
avail itself of any right, power or privilege that it has or may have
hereunder operate as a waiver of any right, power or privilege.
9.9 Publicity. OmniSci may include your name and logo on its customer
lists and reference the fact that you are a customer of OmniSci.
However, neither party may issue a press release regarding this
Agreement without the other party's prior written approval (which will
not be unreasonably withheld or delayed).
9.10 Notices. Notices in connection with this Agreement must be in
writing and either delivered in person or by recognized commercial
courier or certified mail, postage and fees prepaid, return receipt
requested, and addressed (a) if to OmniSci, to OmniSci, Inc., 1 Front
Street, Suite 2650, San Francisco, CA, 94111 USA, Attention: Legal
Department, and (b) if to you, to the address you provided to OmniSci
prior to downloading the Software, or to such other address as you have
specified by notice hereunder. Notices will be deemed effective when
received or, if delivery is refused, when delivery is attempted.
9.11 Relationship of Parties. OmniSci and you are independent
contractors, and neither party, nor any of their respective affiliates,
is an agent of the other for any purpose or has the authority to bind
the other.
9.12 Severability. In the event that any provision of this Agreement is
for any reason held invalid, illegal or unenforceable in any respect by
a court of competent jurisdiction, to such extent such provision will be
deemed null and void and severed from this Agreement, and the remainder
hereof will remain in full force and effect.