This Splice Machine End User License Agreement (the “EULA” or the “Agreement”) governs your access to and use of Splice Machine’s Software, Support, and/or other services. The EULA is between Splice Machine, Inc., a Delaware corporation with offices located at 612 Howard Street, Suite 300, San Francisco, CA 94105 (“Splice Machine” or “we” or “us”) and you, the customer accepting this Agreement (“Customer” or “you”), effective as of the date that Customer first indicates its acceptance of this Agreement (the “Effective Date”).

You are responsible for reviewing this EULA before clicking “I accept the terms of the Splice Machine End User License Agreement” or downloading or using the Software or any Splice Machine Services or Support. By accepting this EULA, you agree to be bound by this Agreement; if you are an individual acting on behalf of Customer, you represent that you have the authority to bind Customer and enter into this Agreement on Customer’s behalf. If you, as an individual, do not have that authority, or if Customer does not agree with this Agreement, then neither you nor Customer should click to accept and Splice Machine does not authorize you or Customer to access or use our Software, services, or Support.

1. Definitions.

1.1. “Confidential Information” means information disclosed by Splice Machine to Customer that (a) is marked as confidential or proprietary, or (b) Customer knows or reasonably should know is proprietary or confidential based on the circumstances of disclosure or the nature of the information. For purposes of this EULA, the Software, as well as any performance information, benchmarks, or other analysis relating to the Software, and any feedback you provide us, are all Splice Machine Confidential Information, and you have no interest in or rights thereto except as expressly set forth in this Agreement. Customer is not obliged to protect Splice Machine Confidential Information that (a) was or becomes publicly known other than through Customer’s breach of this Agreement; (b) was already known by Customer, without confidentiality breach, when disclosed by Splice Machine; (c) is rightfully received by Customer from another party with no breach of confidentiality obligations.

1.2. “Documentation” means the online documentation made available by Splice Machine to its users at http://doc.splicemachine.com relating to the Software, as may be modified by Splice Machine from time to time.

1.3. “Intellectual Property Rights” means all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.

1.4. “License” means a license granted to you in Section 2.

1.5. “Node” means a single machine in the Customer environment that processes data using one or more CPUs. If such a machine includes server blades or virtual servers, each such server blade or virtual server is considered a separate Node under this Agreement. Each Node is subject to the following capacity limitations: 256GBs of RAM; 32-core CPUs; 8TB total disk space.

1.6. “Software” means the proprietary software developed by Splice Machine and licensed to Customer under this Agreement, including any updates or upgrades made available by Splice Machine, and excluding any Open Source Components shipped or included with the Software; for purposes of licensing and use, “Software” includes the Documentation.

1.7. “Support” means support and maintenance services, and any related bug fixes, patches, enhancements, updates, or upgrades for the Software, as Splice Machine may (in its discretion) provide to Customer, in an addendum under this Agreement or otherwise, depending on Customer’s License type. If Support is provided, its scope extends only to your implementation and use of the Software.

1.8. “Term” means the period during which a given License is valid. Each License Term begins on the Effective Date applicable to that License and, unless earlier terminated under Section 9, continues in effect: for Community Edition Licenses, indefinitely; and for Trial Licenses, until automatic expiration on the last day of the applicable trial period (whether specified via contract, trial key, or otherwise) (the “Trial Period”).

2. Software License.

2.1. License Types. Your license rights depend on the type of License applicable to you. If you are unsure which Software edition and License you selected, and accordingly which set of rights applies, please contact us before proceeding. The Licenses below are free of charge, may include limited functionality or features, and do not include Support; contact us to discuss purchasing Support or upgrading to a different type of License.

2.1.1. Community Edition – Standalone Download. This License allows you to download the Community Edition – Standalone version of the Software, and deploy and use it on a single Node, in accordance with Section 2.2.

2.1.2. Community Edition – Cluster Download. This License allows you to download the Community Edition – Cluster version of the Software, and deploy and use it on multiple Nodes, in accordance with Section 2.2.

2.1.3. Community Edition – Sandbox Cluster. This License allows you to deploy and use the Community Edition – Sandbox version of the Software in your cloud environment (e.g., Amazon Web Services (“AWS”) space) in accordance with the Splice Machine Sandbox configuration options you selected, in accordance with Section 2.2. If you selected this License, (1) you authorize us (a) to deploy the Software in your cloud environment as specified, and (b) to accept the following third-party click-through terms on your behalf: (i) the Java SE Platform Products and JavaFX license at http://www.oracle.com/technetwork/java/javase/terms/license/index.html ; and (ii) the Cloudera standard license at http://www.cloudera.com/legal/terms-and-conditions/cloudera-standard-license-v4-2016-05-26.html ; and (2) you understand that you are responsible for compliance with the applicable cloud provider terms, including payment of applicable fees, as well as with the Java and Cloudera licenses, and agree to indemnify us under Section 8 for any breach by you.

2.1.4. Enterprise Trial License. This License allows Customer to download and use the Enterprise Trial version of the Software, when available, for deployment on multiple Nodes for the Trial Period, in accordance with Section 2.2.

2.2. Grant. Subject to this Agreement, Splice Machine hereby grants you a limited, non-sublicenseable, non-exclusive, non-transferable, revocable license during the License’s Term to download, access, internally copy, configure, and use the Software in accordance with Section 2.1.

2.3. Open Source Components. Splice Machine may include with the Software, or otherwise direct Customer to sources for, certain items of independent third-party code (the “Open Source Components”) that are subject to the terms of “open source” licenses (the “Open Source Licenses”), as summarized at https://www.splicemachine.com/wp-content/uploads/Splice-Machine-OSS-third-party-licenses-table-v1.5.pdf and provided with the Software in the form of a license.txt file. Nothing in this Agreement limits Customer’s rights under, nor grants Customer rights superseding, those set forth in any applicable Open Source License, and nothing in this Agreement restricts Customer’s right to copy, modify, or distribute any Open Source Component to the extent that those rights are granted to Customer under the applicable Open Source License.

2.4. Records, Notices, and License Restrictions.

2.4.1. Customer must include on each copy of the Software (including backups) all copyright, proprietary or other notices that appear on the original Software, must keep a record of each copy and the location of its use or storage, and must provide these records to Splice Machine upon request. Splice Machine may include code within the Software that provides Splice Machine with data about Customer’s Nodes and usage of the Software, such as IP address; network speed; CPU type, cores, and memory; total disk space, and disk type and speed (collectively, “Usage Data”). Usage Data will be Customer’s Confidential Information, and Customer consents to Splice Machine’s use of Usage Data to assist in supporting Customer (if applicable) and to evaluate Customer’s compliance with this Agreement. For purposes of this Agreement, Customer acknowledges that the Software, its structure, organization, and source code are the property and aspects thereof constitute valuable trade secrets of Splice Machine and its suppliers.

2.4.2. Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Software except to the extent that the Software provides for user-modifiable components, and in such case, Splice Machine shall own any derivative works; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, provide access to, or otherwise transfer the Software to any third party; (d) allow any third party to access the Software, e.g., through a service bureau or commercial time-sharing arrangement, or use the Software for outsourcing or as an ASP; (e) use the Software for third-party training; (f) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (g) use the Software for purposes other than as permitted under the applicable License; (h) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the Software or Documentation; or (i) permit or encourage any third party to do any of the foregoing.

2.5. Ownership and Rights. Customer acknowledges that, as between the parties, the Software and Documentation, any derivative works thereof, and all worldwide Intellectual Property Rights therein, are the exclusive property of Splice Machine and its suppliers. There are no implied licenses under this Agreement; all rights are specific to the parties and do not extend to their parents, subsidiaries or affiliates, and Splice Machine and its suppliers reserve all rights not expressly granted to Customer.

3. Delivery. Splice Machine will deliver the Software via download or other online access made available following your acceptance of this Agreement. Software is deemed accepted upon delivery.

4. Taxes. Customer is responsible for payment of all sales, use, value-added, personal property, and other taxes arising out of this Agreement, including duties and similar mandatory payments, except for taxes based on our net income.

5. Confidentiality. Customer agrees: (i) not to use our Confidential Information except in the performance of its obligations under this Agreement or as otherwise expressly permitted hereunder; (ii) to disclose our Confidential Information only to employees (or third-party subcontractors permitted under this Agreement) who have a need to know it for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than that set forth herein; (iii) to protect our Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own, but in no event with less care than a reasonably prudent business would exercise and (iv) to promptly notify us of any actual or potential unauthorized access to or use of our Confidential Information. Customer may disclose our Confidential Information without breach of this Section if required by law, court order, or other similar authority, provided that it first provides us with prompt written notice of the requirement before making the required disclosure, assists us at our cost in obtaining a protective order, and (z) discloses it only to the extent so required.

6. Representations and Warranties.

6.1. Mutual. Each party hereby represents and warrants that it has the right to enter into this Agreement.

6.2. Disclaimers. SPLICE MACHINE AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE, DOCUMENTATION, DELIVERABLES, OR ANY SERVICES OR SUPPORT WILL BE FREE FROM ERRORS OR BUGS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DO THEY MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE SOFTWARE OR THE RESULTS OF SERVICES OR SUPPORT OR ANY DELIVERABLES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT SPLICE MACHINE IS NOT RESPONSIBLE FOR ANY HARDWARE, CLOUD ENVIRONMENT, THIRD-PARTY SOFTWARE, OR OTHER PRODUCTS OR SERVICES PROVIDED BY ANY PERSON OR ENTITY OTHER THAN SPLICE MACHINE, INCLUDING AS SUPPLIED PERFORMED BY CUSTOMER.TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SOFTWARE (INCLUDING ANY UPDATES OR UPGRADES PROVIDED THROUGH SUPPORT), DOCUMENTATION, DELIVERABLES, SERVICES, AND SUPPORT ARE PROVIDED “AS IS”, AND SPLICE MACHINE AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT THERETO, INCLUDING, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTIES IN ENTERING INTO THIS AGREEMENT EXCEPT FOR THOSE SPECIFICALLY SET FORTH HEREIN.

7. Limitation of Liability.

7.1. Limitation of Claims and Damages. IN NO EVENT WILL SPLICE MACHINE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOSS OF USE OR GOODWILL, INTERRUPTION OF BUSINESS, LOSS OR INACCURACY OF BUSINESS INFORMATION, LOST PROFITS, REGARDLESS OF WHETHER WE OR OUR SUPPLIERS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

7.2. Liability Cap. SPLICE MACHINE’S ENTIRE LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY) ARISING OUT OF OR RELATED TO THIS AGREEMENT, SHALL NOT EXCEED FIVE HUNDRED DOLLARS. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE APPLICABLE LIMIT.

7.3. Acknowledgment. CUSTOMER ACKNOWLEDGES THAT SPLICE MACHINE’S OFFERING OF SOFTWARE LICENSES, SERVICES, AND SUPPORT TO IT RELY ON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT. BOTH PARTIES AGREE THAT THIS AGREEMENT REFLECTS A FAIR AND REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT THE DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITY ARE ESSENTIAL ELEMENT OF THE AGREEMENTS, IN THE ABSENCE OF WHICH THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE DIFFERENT.

8. Indemnification. Customer will defend, indemnify, and hold Splice Machine harmless against any claims, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) that we or our suppliers may incur as a result of a third-party claim arising from or related to Customer’s breach of this Agreement or misuse of the Software.

9. Term and Termination.

9.1. Termination. The Term of this Agreement begins on the Effective Date and continues in effect indefinitely as long as any License is in effect. Either party may terminate this Agreement or any License by written notice if the other party breaches it and fails to cure the breach within thirty (30) days after receiving notice of the breach; for Customer breach of Sections 2 or 5, there is no cure period and we may terminate immediately by written notice. Either party may terminate this Agreement or any License for convenience on ninety (90) days’ advance written notice, and we may terminate on ten (10) days’ advance written notice, if we become aware of any allegation that Software or its use infringes another’s Intellectual Property Rights. This Agreement and all Licenses terminate automatically if Customer seeks protection from its creditors under the Bankruptcy Code, has a petition for bankruptcy or dissolution or receivership filed against it (if not dismissed within sixty (60) days), or ceases to conduct its business in the ordinary course. Delay in performance will not be considered a breach of this Agreement if such delay is caused by a force majeure event, provided that the affected party uses reasonable efforts to resume performance as soon as reasonably practicable; if the party’s performance is delayed more than thirty (30) days, the other party may terminate this Agreement upon ten (10) days’ written notice.

9.2. Effect. Upon the termination of this Agreement, all Licenses granted in this Agreement immediately cease to exist and Customer must promptly discontinue all use of the Software. Within five (5) business days after the termination or expiration of this Agreement (or such longer period as may be otherwise agreed to in writing by Splice Machine), Customer must: (a) erase all copies of the Software from Customer’s computers and digital media; (b) return to Splice Machine or destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control; and (c) certify in writing to Splice Machine that it has fully complied with these requirements. The following sections will survive any termination or expiration of this Agreement: Sections 2.4 (Records, Notices, and Restrictions); 2.5 (Ownership); 5 (Confidentiality); 6.2 (Disclaimers); 7 (Limitation of Liability); 8 (Indemnification); 9.2 (Effect of Termination); and 10 (General).

10. General.

10.1. Entire Agreement. This Agreement forms the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all other agreements between them, whether written or oral, relating to the subject matter of this Agreement. Preprinted terms on any other document (e.g., purchase orders, RFPs, etc.) are null and void and without force or effect.

10.2. Execution and Amendments. This Agreement may be executed or amended electronically, as evidenced by Customer’s clicking to accept the Agreement or any amendment, and may be modified or amended only in writing signed or accepted by an authorized representative of each party.

10.3. Waivers and Construction. Waivers will not be binding unless and only to the extent set forth in writing signed by an authorized representative. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be construed to have been adjusted to the minimum extent necessary to cure the invalidity or unenforceability while accomplishing, to the greatest extent possible under applicable law, the objectives of such provision, and all remaining provisions shall remain in effect.

10.4. Independent Contractors. In making and performing this Agreement, the parties act as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, or employer/employee relationship between them. Notwithstanding the foregoing, if Customer has a Sandbox License, Customer grants Splice Machine express permission to act on Customer’s behalf for the specific limited purpose of accessing its cloud environment and installing the Software therein.

10.5. Permitted Subcontractors. Customer may exercise its rights hereunder through third-party subcontractors for the sole purpose of assisting Customer in its permitted use of the Software, but must first obtain Splice Machine’s approval in writing as to each subcontractor, and the subcontractor must be bound by terms and conditions at least as protective of and beneficial to Splice Machine as those set forth herein. Customer guarantees the performance of all third-party subcontractors.

10.6. Governing Law and Disputes. The laws of the State of California, without regard to choice of law provisions, govern all matters arising out of or related to this Agreement, and any related action or proceeding, whether in equity or at law, will be instituted only in the U.S. District Court or state court located in San Francisco, CA; each party irrevocably consents and submits to the exclusive jurisdiction of such courts. The parties specifically disclaim applicability of the United Nations Convention on Contracts for the International Sale of Goods.

10.7. Injunctive Relief. The parties agree that that there may be no adequate remedy at law for a threatened or actual breach of Sections 2 or 5, that such breach may irreparably harm Splice Machine, and consequently that Splice Machine is entitled to seek equitable relief (including an injunction) with respect to any such breach or potential breach, in addition to any other remedies available at law.

10.8. Compliance with Laws; Export. Customer will comply with all applicable laws, regulations, and orders of any governmental authority of competent jurisdiction, including those governing the export or import of technology and the imposition and observance of embargoes, sanctions, and other governmental trade restrictions.

10.9. Government Licensees. Where Customer is, or is acting on behalf of, a unit or agency of the United States government, Customer agrees on behalf of the United States government that (i) the Software and Documentation is “commercial computer software” or “commercial computer software documentation” and (ii) absent a written agreement to the contrary, the government’s rights with respect thereto are limited by the terms of this Agreement, pursuant to FAR §12.12 or DFARS §227.7202-1(a) as applicable.

10.10. Assignment. Customer may not assign any of its rights or obligations under this Agreement, in whole or in part and whether voluntarily, involuntarily, or by operation of law, without Splice Machine’s prior written consent; any attempt to do so will be null and void and of no effect. Splice Machine may freely transfer, assign, or delegate its rights and obligations under this Agreement upon thirty (30) days’ written notice to Customer. This Agreement is binding upon and intended solely for the benefit of the parties, their successors, and permitted assigns.

10.11. Notices. Any notice required or permitted hereunder shall be in writing and delivered in person or by means evidenced by a delivery receipt. Notices to Customer will be sent to the email or postal address Customer provided during the registration process. Notice to Splice Machine must be in writing, directed to Splice Machine, Inc., 612 Howard Street, Suite 300, San Francisco, CA 94105, with a copy emailed to legal@splicemachine.com. Either party may change its contact information by written notice to the other party. Customer agrees that Splice Machine may communicate with it by email, and that email notices sent to Customer’s email address of record qualify as written notice and are effective upon sending, absent receipt of a bounceback, out-of-office message, error message, or other evidence of nondelivery or delayed receipt.

Updated July 22, 2016