EVALUATION LICENSE AGREEMENT
This Evaluation License Agreement (“Agreement”) is made as of the date of the acceptance of the terms of this Agreement (“Effective Date”) and is between Data Artisans GmbH ("Ververica"), located at Invalidenstrasse 115, Berlin 10115, Germany and its client (“Client”) provided that the Client is not a private consumer under applicable law.
By clicking the “Accept” button and/or downloading the Ververica Product, the Client agrees to be bound by the terms of this Agreement. If the Client does not agree to the terms of this Agreement, the Client may not use the Ververica Product.
1.1. “Confidential Information” means any information, technical data or know-how, including without limitation, that which relates to Ververica’ computer software programs, documentation, specifications, source code, object code, re-search, inventions, processes, designs, drawings, engineering, products, services, customers, benchmark tests, markets, prices, or finances, which is identified as confidential either orally or in writing at the time of disclosure, or, in the al-ternative, should reasonably be considered Confidential Information. Confidential Information will not include any in-formation that: (a) has been or is obtained by the receiving party from an independent source without obligation of con-fidentiality, (b) is or becomes publicly available other than as a result of an unauthorized disclosure by the receiving party or its personnel, or (c) is independently developed by the receiving party without reliance in any way on the Con-fidential Information disclosed.
1.2. “CPU” stands for “Central Processing Unit.” It is defined as the actual bare metal processing unit. One CPU contains at least one CPU Core but may contain more. Multi-Core or Hyperthreading processors are counted as one CPU.
1.3. “CPU Core” means the central billing unit of the Product enabling the Client to schedule applications (an abstraction over Flink jobs) up to the number of CPU Cores as licensed under this Agreement. A CPU Core refers to “cpu units” in Kubernetes (or equivalent resource managers). One CPU is equivalent to one AWS vCPU, 1 GCP core, 1 Azure vCore (or similar concepts for other cloud providers) or 1 Hyperthread on a bare-metal processor with Hyperthreading. The term “CPU Core” is specified in further detail in the Documentation.
1.4. “Ververica Product” means the Ververica software product ordered by Client pursuant to this Agreement.
1.5. “Documentation” means Ververica’ standard user manuals generally made available to Clients of the Ververica Product which is available as an online version only. The Documentation constitutes an integral part of this Agreement and will be made available to the Client upon request and, in any event, as part of the Ververica Product.
1.6. “Evaluation Term” means thirty (30) days from the date of download by Client.
1.7. “Group Companies“ shall mean any companies that are directly, or indirectly through one or more intermediaries, controlled by the Client. As used in this definition, “control” shall mean ownership of more than 50% of the shares or more than 50% of the voting power.
1.8. “Node” is defined as one instance of the Ververica Product, running in one Java Virtual Machine.
2. GRANT OF RIGHTS
(a) Evaluation License. Subject to the terms and conditions of this Agreement, Ververica hereby grants to Client, during the Evaluation Term, a non-exclusive, non-transferable (except as provided in Section 14.5), worldwide right and li-cense (without a right to sublicense) to install and operate the Ververica Product solely in a non-production environ-ment for internal evaluation of the suitability of the Ververica Product for Client’s business needs.
(b) Volume Limitations. The right to install and operate the Ververica Product is limited to the number of, as applicable, CPU Cores, CPUs or Nodes as agreed between the Parties under this Agreement. In the absence of an individual ar-rangement between the Parties, the right to install and operate the Ververica Product is limited to 10 CPU Cores.
(c) Documentation License. Subject to the terms and conditions of this Agreement, Ververica hereby grants to Client a non-exclusive, non-transferable (except as provided in Section 14.5), worldwide right and license (without a right to sublicense) to make copies of the Documentation provided by Ververica, solely for Client’s internal use and solely for the purpose of exercising the rights granted in Section 2.1(a). Client acknowledges that no right is granted to modi-fy, adapt, translate, publicly display, publish, create derivative works or distribute the Documentation.
2.2. Limitations. Subject to any mandatory rights of Client under applicable law, Client will not: (a) assign, sublicense, transfer, lease, rent or distribute any of its rights in the Ververica Product, provided, however, that the Client shall remain entitled to sublicense the Ververica Product to its Group Companies subject to the requirements and limita-tions under this Agreement; (b) port, translate, localize or create derivative works based upon the Ververica Product in any manner; (c) reverse assemble, decompile, reverse engineer, translate or otherwise attempt to derive or obtain the source code, the underlying ideas, algorithms, structure or organization of the Ververica Product; (d) copy or dupli-cate the Ververica Product (other than to make one (1) copy for archival purposes only); (e) use the Ververica Product for the benefit of any third party including as part of any service bureau, time sharing or third party training ar-rangement; or (f) publish any benchmark testing results on any Product without Ververica’ written consent.
2.3. Open Source. The Client is advised that the Ververica Product contains and/or is based or refers to open source components. The terms of this Agreement are not applicable to those open source components. The use of those open source components is subject to the applicable open source license terms, which will be provided to the Client by Ververica when the Ververica Product is made available to the Client.
2.4. Third-Party Restrictions. Client will undertake all measures necessary to ensure that its use of the Ververica Product complies in all respects with any contractual or other legally binding obligations of Ververica to any third party, provided that Ververica has notified Client with respect to any such obligations.
2.5. Ownership and Reservation of Rights. Except for the licenses granted Client in this Section 2, Ververica or its li-censors will retain all right, title and interest in and to the Ververica Product and all copies. Such right, title and in-terest will include ownership of, without limitation, all copyrights, patents, trade secrets and other intellectual property rights. Client will not claim or assert title to any portion of the Ververica Product or any copies. In the event Client modifies or authorizes the modification or translation of any Ververica Product, including any Documentation, Cli-ent hereby assigns all right, title and interest in any derivative work to Ververica and agrees to cooperate as reasona-bly requested by Ververica to perfect any such rights.
3. OBLIGATIONS OF CLIENT
3.1. Client will be solely responsible for obtaining and installing all proper hardware and support software (including with-out limitation operating systems and network devices) and for proper installation of and training concerning the Ververica Product. Further details are specified in the Documentation.
3.2. Client will be solely responsible for maintaining all software and hardware (including without limitation network sys-tems) that are necessary for Client to properly exercise the licenses granted hereunder. This includes, in particular, the minimum requirements specified in the Documentation.
3.3. Ververica will have no responsibility or liability under this Agreement for any unavailability, failure of, nonconform-ity, or defect in, any of the Ververica Product that is caused by or related in any manner to any failure of Client to obtain and maintain all such software or hardware.
3.4. Client will be solely responsible for creating and maintaining back-ups, security updates and compatible versions of all data used in connection with the Product.
3.5. Client will undertake all measures necessary to ensure that its use of the Ververica Product complies in all respects with applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having juris-diction over Client or the Ververica Product.
4. SUPPORT AND MAINTENANCE SERVICES
4.1. Ververica will have no obligation to provide or perform any support and maintenance services for or on behalf of Client.
4.2. Any support and maintenance services shall require the execution of a separate service agreement between the Parties.
5. PROFESSIONAL SERVICES
5.1. Unless otherwise agreed between the parties in any Order Form, Ververica will have no obligation to provide or perform any professional services for or on behalf of Client.
5.2. Any professional services shall require the execution of a separate service agreement between the Parties.
6. NO FEES
The Evaluation License will be granted free-of-charge.
7. WARRANTY DISCLAIMER
7.1. Delivery. The Product will be delivered to the Client via download link.
7.2. Disclaimer. The Product is delivered “as is”. Ververica disclaims all warranties related to the Ververica Product and services, express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, accuracy, security, no infringement, quiet enjoyment, course of dealing or usage of trade.
8. NONDISCLOSURE AND CONFIDENTIALITY
8.1. Nondisclosure Obligations. All Confidential Information exchanged between the parties pursuant to this Agreement: (a) will not be copied or distributed, disclosed, or disseminated in any way or form by the receiving party to anyone except its own employees, agents, or contractors, who have a reasonable need to know the Confidential Information; (b) will be treated by the receiving party with the same degree of care as is used with respect to the receiving party’s own infor-mation of like importance, but with no less than reasonable care; (c) will not be used by the receiving party for its own purposes or any other purpose except as set forth in this Agreement, without the express written permission of the dis-closing party; and (d) will remain the property of and be returned to the disclosing party (along with all copies thereof) within thirty (30) days of receipt by the receiving party of a written request from the disclosing party setting forth the Confidential Information to be returned or upon expiration or termination of this Agreement. Notwithstanding the above, the receiving party will disclose Confidential Information to agents and contractors only if such agent or contrac-tor has signed a nondisclosure agreement that requires the agent or contractor to protect the Confidential Information in the same manner as required of the receiving party. The receiving party is jointly and severally liable for the acts and omissions of any of its agents or contractors.
8.2. Compelled Legal Disclosure. In the event the receiving party becomes legally compelled to disclose any Confidential Information, the receiving party will provide the disclosing party with prompt prior written notice of such requirement and the receiving party will reasonably cooperate in any effort by the disclosing party to petition the authority compel-ling such disclosure for an order that such disclosure not occur or that it occur pursuant to terms and conditions de-signed to ensure continued confidentiality or minimized disclosure.
8.3. Term. The confidentiality provisions of this Sec. 8 will survive termination or expiration of this Agreement.
Client Indemnity. Client will indemnify, defend and hold harmless Ververica, its directors, officers, employees and representatives, from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, arising out of any third party claim alleging a Client breach of any Client warranty or if the alleged claim arises, in whole or in part, from: (a) any modification, servicing or addition made to the Ververica Product or any part thereof by the Client; (b) any use of the Ververica Product by Client in a manner outside the scope of any right granted or in breach of this Evaluation License Agreement; (c) the use of such Ververica Product or any part thereof as a part or combination with any mate-rials, devices, parts, software or processes not provided by or approved by Ververica; (d) Ververica’ compliance with Client’s requirements or specifications, if any; or (e) the use of other than the then-current, unaltered release of the Ververica Product or any part thereof available from Ververica.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. Ververica’ shall not be liable for any action or failure to act under or in connection with this Agreement, regardless of the form of action, whether in contract, tort (including negligence), strict liability, product lia-bility or otherwise, including any indemnity obligations under Sec. 9 above, except to the extent (a) such conduct con-stitutes willful misconduct or gross negligence or (b) liability is based on the Product Liability Act (Produkthaftung-sgesetz).
10.2. Remedies. Should the use of all or any portion of the Ververica Product be enjoined, or in the event Ververica wishes to minimize its potential liability under this Agreement (including without limitation to any of its third-party licensors), Ververica may at its sole and exclusive discretion, either: (a) substitute functionally equivalent, non-infringing versions of the Ververica Product(s) or any part thereof; (b) modify the infringing item so that it no longer infringes but remains reasonably functionally equivalent; (c) obtain for Client, at Ververica’ expense, the right to continue use of such item; or (d) Ververica may take back such infringing item or items, terminate this license in whole or in part.
11. AUDITS AND CERTIFICATION OF COMPLIANCE
11.1. Audits. Ververica will have the right to audit Client’s records related to Client’s payment obligations hereunder and to ensure compliance with the terms of this Agreement, upon reasonable written notice. Such audits may be conducted by Ververica personnel or by an independent third party auditor appointed by Ververica. Client will grant Ververica and/or an independent third party auditor appointed by Ververica reasonable access to its personnel, rec-ords and facilities for such purpose. All such audits will be conducted during normal business hours.
11.2. Certification. Ververica reserves the right to require that Client certify as to its usage and compliance with this Agreement. This applies, in particular, to the usage restrictions applicable to the number of CPU Cores.
11.3. Anonymous Usage Tracking. Ververica reserves the right to collect and store the IP addresses of devices used to access the Ververica Product as well as anonymous usage data regarding the Ververica Product (e.g., information on the product version used).
12. TERM AND TERMINATION
12.1. Term. This Agreement becomes effective on the Effective Date and is and shall run for the Evaluation Term. Upon expiration of the Evaluation Term, this Agreement shall terminate automatically without any further action being re-quired.
12.2. Transfer to Production License. If Client wishes to license the Ververica Product after the Evaluation Term, or for purposes other than those set forth in this Agreement, Client may contact Ververica to request a production license.
12.3. Termination. Either party will have the right to terminate this Agreement and any or all Order Forms if the other party is in material breach of any term or condition of this Agreement and fails to remedy such breach within thirty (30) days after receipt of written notice of such breach given by the non-breaching party.
12.4. Conditions of Termination. Following termination of the applicable Order Form, for any reason, the license in the Ververica Product granted hereunder to Client will terminate and Client will discontinue the use of the Ververica Product and all Confidential Information that had been furnished to Client by Ververica pursuant to this Agreement. Client will immediately: (a) delete the Ververica Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (b) return to Ververica, or at Ververica’ option, destroy, all copies of Ververica’ Confidential Information then in its possession.
12.5. Survival. Paragraphs 1, 2.3, 2.5, 3, 6 and 8 through 14 will survive termination or expiration of this Agreement.
13. PROPRIETARY RIGHTS
13.1. Copyright and Trademark Notices. Client will duplicate all proprietary notices and legends of Ververica and its suppliers or licensors upon any and all copies of the Ververica Product, including any Documentation, made by Cli-ent.
13.2. No Removal. Client will not remove, alter or obscure any such proprietary notice or legend.
14. GENERAL PROVISIONS
14.1. Notices. Any notice required to be sent under this Agreement will be in writing, delivered by hand or mailed by certi-fied or express mail, return receipt requested, to the addresses of the parties listed herein.
14.2. Marketing. The Client agrees that Ververica shall be entitled to refer to the cooperation with the Client and to use the name and logo of the Client for marketing purposes, e.g. on Ververica’ website.
14.3. Force Majeure. Neither party will be responsible for delay or failure in performance resulting from acts beyond the con-trol of such party. Such acts will include, but not be limited to: an act of God; an act of war; an act of terrorism; riot; an epidemic; fire; flood or other disaster; an act of government; a strike or lockout; a communication line failure; power failure or failure of the computer equipment on non-Ververica developed software.
14.4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of Germany, exclud-ing its conflicts of law rules. The U.N. Convention on the International Sale of Goods (CISG) will not apply to this Agreement in whole or in part. The parties agree that Berlin, Germany will be the exclusive venue for claims arising out of or in connection with this Agreement and all parties submit to the jurisdiction of the courts in Berlin, Germany.
14.5. Assignment. Ververica may, upon written notice to Client, assign this Agreement to another party who buys all or substantially all of Ververica’ business assets. Client will not assign this Agreement without the prior written con-sent of Ververica, which will not be unreasonably withheld.
14.6. Entire Agreement. This Evaluation License Agreement contains the entire understanding of the parties with respect to the matter contained herein and supersedes all prior and contemporaneous understandings. This Agreement may not be modified except in writing and signed by authorized representatives of Ververica and Client. Digital signatures are deemed to be equivalent to original signatures for purposes of this Agreement.