This Short-Term Evaluation Agreement (“Agreement”) entered into by and between MariaDB USA, Inc. (“MariaDB”) and the entity accepting this Agreement (“Customer”) and is effective as of date accepted by Customer (the “Effective Date”).
- LICENSE; TERM. MariaDB grants Customer a limited, no-charge, non-transferable, and non-exclusive license to access and use the SkySQL Alpha cloud-based product made available by MariaDB (the “Technology”) for evaluation purposes only. In no event shall Customer be entitled to use the Technology for production or commercial purposes pursuant to this Agreement. As between Customer and MariaDB, MariaDB retains all right, title, and interest in and to the Technology at all times. This Agreement shall be in effect until March 31, 2020, or terminated by either party. Either party may terminate this Agreement immediately without notice to the other party. Upon expiration or termination of this Agreement, the licenses granted in this Section 1 will terminate and any data or content contained in the Technology will be deleted.
- DATA RESTRICTION. Customer will not upload or process any personal information or regulated data in or with the Technology, including without limitation, any data regulated by privacy or security regulations, personal health information, individual financial information, or payment card information.
- DISCLAIMER OF WARRANTY & LIMITATION OF LIABILITY. THE TECHNOLOGY IS PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE, OR PERFORMANCE OF THE TECHNOLOGY. MARIADB AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. MARIADB AND ITS SUPPLIERS DO NOT WARRANT THAT THE TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT OR LOST SAVINGS (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE, OR COMPUTER FAILURE, SUPPORT FAILURE, OR ANY OTHER CAUSE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF MARIADB UNDER THIS AGREEMENT FOR ANY REASON AND UPON ANY CAUSES OF ACTION SHALL BE LIMITED TO TWENTY-FIVE DOLLARS (US$25.00).
- CONFIDENTIALITY. “Confidential Information,” is information that the parties disclose to each other in connection with this Agreement if it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Except as expressly authorized herein, the receiving party will hold in confidence and not use or disclose any Confidential Information for any purpose other than as set forth in this Agreement. Confidential Information does not include information which the receiving party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the receiving party; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the receiving party who had no access to such information.
- BENCHMARK TESTING. You may perform benchmarks or comparative tests or evaluations (each, a “Benchmark”) of the Technology. However, you must obtain MariaDB’s prior written approval to disclose to a third party the results of any Benchmark of the Technology.
- MISCELLANEOUS. This Agreement shall be governed by California law. In the event of any action or dispute between the parties, the exclusive jurisdiction of state and federal courts in San Mateo County, California shall apply. In no event shall the United Nations Convention on Contracts for the International Sale of Goods apply to, or govern, this Agreement. Notwithstanding the foregoing, MariaDB may enforce any judgment rendered by such court in any court of competent jurisdiction, and MariaDB may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. Customer will comply with all applicable law, rules, and regulations in connection with this Agreement and its use of the Technology. Without limiting the foregoing, Customer acknowledges that the Technology may be subject to U.S. export and import control laws, and agrees to comply fully with those laws in connection with the Technology. Customer hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the prior written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other asset transfer. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void. This Agreement, including any exhibits to this Agreement, constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties.