Not for editing EFFECTIVE DATE: June 2020
READ THIS OBJECTBOX COMMERCIAL SOFTWARE END USER LICENSE AGREEMENT CAREFULLY, WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR INDIVIDUAL USE OF OBJECTBOX'S COMMERCIAL SOFTWARE. BY INSTALLING AND/OR USING SUCH SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT (WHETHER OR NOT YOU HAVE READ THEM). IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE ANY OF THE COMMERCIAL SOFTWARE. WE RESERVE THE RIGHT TO AMEND THESE TERMS AT ANY TIME, WITH OR WITHOUT NOTICE TO YOU AND YOU ARE THEREFORE ADVISED TO CHECK BACK REGULARLY FOR THE LATEST SET OF TERMS THAT APPLY TO YOUR USE OF THE COMMERCIAL SOFTWARE, AS THOSE CHANGES WILL BE BINDING ON YOU.
This OBJECTBOX COMMERCIAL SOFTWARE END USER LICENSE AGREEMENT (this "Agreement") is entered into by and between ObjectBox GmbH. ("ObjectBox") and the person that has downloaded or accessed any of ObjectBox's proprietary software to which this Agreement is attached or in connection with which this Agreement is presented to You via a confidential URL link or otherwise ("You" or "Customer" and collectively, the "Commercial Software"). This Agreement is effective upon the date on which You first use or gain access to the Commercial Software (as applicable, the "Effective Date").
1.1. Licence Grants
Subscription Licences. Where your employer (or the organization who otherwise directly engages you) enters into a Subscription Agreement (Subscription Agreement) with ObjectBox then, subject to the terms and conditions of that agreement and complete payment of any and all applicable Subscription Fees under it, ObjectBox agrees to grant You access to the Commercial Software for the applicable Subscription Term subject to the terms of this Agreement, including:
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i. a Licence to the Eligible Features and Functions of ObxDB that are applicable to the Subscription Level that has been purchased, for the number of Billable Devices and for the specific Project.
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ii. in the case of additional features, e.g. a Time Series Subscription, a License to ObxTS for the number of Billable Devices and for the specific Project.
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iii. in the case of a Sync Subscription, a License to ObxSync for the number of ObxSync Instances that have been purchased with the Sync Subscription and for the specific Project for which the Sync Subscription is needed.
The relevant details of ObxSync Instances and the specific Project are set forth on the applicable Order Form. Capitalised (but not otherwise defined) terms used in this Agreement shall have the meaning(s) given to them in the Subscription Agreement.
1.2. Download Link, Delivery and Acceptance. Promptly following execution of an applicable Order Form, ObjectBox will deliver a Download Link (either to You directly, or indirectly via your employer) that enables You to use the applicable Commercial Software in accordance with the rights granted in Section 1.1 of this Agreement. For purposes of the applicable Order Form, Commercial Software will be deemed to have been delivered to You upon provision of such Download Link, and the Commercial Software is deemed to be accepted by You upon delivery.
1.3. Reservation of Rights; Restrictions. As between ObjectBox and You, ObjectBox owns all rights and interests in, and titles to, the Commercial Software and any derivative works thereof, and except as expressly set forth in Section 1.1 above, no other license to the Commercial Software is granted to You by implication, estoppel or otherwise. You agree not to: (i) reverse engineer or decompile, attempt to translate or derive the source code, decrypt, disassemble or otherwise reduce any part of the Commercial Software human-readable form, except and only to the extent any such restriction is prohibited by applicable law or permitted by the relevant Subscription, (ii) deploy the Commercial Software for use with more Billable Devices and/or ObxSync and/or ObxTS Instances (as applicable) than are permitted under the applicable Subscription Agreement (other than where notifying ObjectBox in accordance with section 6.3 of the Subscription Agreement), (iii) use any Commercial Software in connection with any Project other than the Project for which the Subscription has been purchased (as identified on the applicable Order Form), (iv) prepare derivative works from, modify, copy or use the Commercial Software in any manner except as expressly permitted in this Agreement; (v) except as expressly permitted, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer any part of the Commercial Software (including the Download Link or any source or object code relating to that Commercial Software and whether or not such code is given to you by ObjectBox, or derived by You or someone else) in whole or in part to any third party (including anyone else within Your organization or Your affiliated organizations); (vi) except as may be expressly permitted on an applicable Order Form or as otherwise agreed by ObjectBox, use the Commercial Software for providing time-sharing services, any software-as-a-service offering ("SaaS"), service bureau services or as part of an application services provider or other service offering; (vii) circumvent the limitations on use of the Commercial Software that are imposed or preserved by any Download Link, (viii) alter or remove any trademarks or logos or copyright or other proprietary notices contained anywhere in the Commercial Software; (ix) deploy the Commercial Software on or in connection with any third party infrastructure as a service (including any ObjectBox-branded software as a service); or (x) make available to any third party any analysis of the results of operation of the Commercial Software, including benchmarking results, without the prior written consent of ObjectBox. The Commercial Software may contain or be provided with open source libraries, components, utilities and other open source software (collectively, "Open Source Software"), which Open Source Software may have applicable license terms as identified on a website designated by ObjectBox or otherwise provided with the Commercial Software or Documentation. Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the licence terms and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to You hereunder, but may contain additional rights).
1.4. Audit Rights. You agree that unless such right is waived in writing by ObjectBox, ObjectBox shall have the right, upon fifteen (15) days' notice to You (either directly from ObjectBox or indirectly via Your employer), to audit Your own individual use of the Commercial Software for compliance with this Agreement. This will be arranged by Your employer and You may be in additional breach of Your employer’s policies if You fail to comply at any time.
1.5. Usage Metadata. You understand and agree that once deployed, and on a daily basis, the Commercial Software may provide metadata to ObjectBox about Your usage statistics and associates that metadata with Your IP address. However, no other information is provided to ObjectBox by the Commercial Software, including any information about the data You process or store in connection with Your use of the Commercial Software. This feature cannot be disabled.
2.1. Term. Unless earlier terminated under Section 2.2 below, this Agreement shall commence on the Effective Date, and shall continue in force for the Subscription Term specified on the Order Form.
2.2. Suspension & Termination. ObjectBox may suspend or terminate your access to any part of the Commercial Software if ObjectBox reasonably considers that you have breached, or are likely to breach, any term of this Agreement. Any suspension will be at ObjectBox’s sole discretion, without liability to you, and shall be for the shortest period necessary to ascertain the outcome of any related investigation. Notwithstanding the foregoing, this Agreement shall automatically terminate if You breach the scope of the licence granted in Section 1.1 of this Agreement (provided that ObjectBox reserves the right (at its sole discretion) to waive such automatic termination upon written notice to You). You may also face disciplinary action from ObjectBox’ customer (as Your employer) as a result of your breach of this Agreement (which may cause ObjectBox to terminate the Subscription Agreement). This Agreement, and your access to the Commercial Software, will also terminate automatically where the Subscription Agreement terminates (for any reason).
2.3. Post Termination or Expiration. Upon termination or expiration of this Agreement, for any reason, You shall promptly cease the use of the Commercial Software and Documentation and destroy (and certify to ObjectBox in writing the fact of such destruction), or return to ObjectBox (whether directly or through ObjectBox’s customer), all copies of the Commercial Software and Documentation in Your possession or under Your control at that point. Any personal data relating to your specific, individual use of the Commercial Software will be retained by ObjectBox and/or Your employer until such time as the Subscription Agreement terminates (at which point it shall be retained only insofar as is permitted by applicable data protection laws).
2.4. Survival. Sections 2.3, 2.4, 3, 4, 5 and 6 (as any such Sections may be modified by Attachment 1, if applicable) shall survive any termination or expiration of this Agreement.
3.1. Limited Performance Warranty. Subject to You purchasing a Subscription, ObjectBox warrants that during the applicable Subscription Term, the Commercial Software will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, ObjectBox's sole obligation, and Your exclusive remedy shall be for ObjectBox to (i) correct any failure(s) of the Commercial Software to perform in all material respects in accordance with the Documentation or (ii) if ObjectBox is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, You may elect to terminate this Agreement and the associated Subscription, and ObjectBox will promptly refund to You any pre-paid, unused fees paid by You to ObjectBox for the applicable Subscription. The warranty set forth in this Section 3.1 does not apply to the extent a non-conformity results from the applicable Commercial Software or any portion thereof: (a) being altered, except by or on behalf ObjectBox; (b) not being used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) being subjected to misuse, negligence, or accident; or (d) being used on equipment, products, or systems not meeting specifications identified by ObjectBox in the Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to ObjectBox after the applicable Subscription Term, and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by ObjectBox.
3.2. Malicious Code. ObjectBox warrants that at the time the Commercial Software is made available for download; it will be free of Malicious Code. In the event of a breach of the foregoing warranty, ObjectBox's sole obligation, and Your exclusive remedy shall be for ObjectBox to replace the Commercial Software with Commercial Software that does not contain any Malicious Code.
3.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMMERCIAL SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND OBJECTBOX AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE COMMERCIAL SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OBJECTBOX AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE COMMERCIAL SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, OBJECTBOX DOES NOT WARRANT RESULTS OF USE OR THAT THE COMMERCIAL SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE COMMERCIAL SOFTWARE WILL BE UNINTERRUPTED OR AVAILABLE AT ALL TIMES. NEITHER THE SOFTWARE NOR THE UPDATES ARE SPECIFICALLY DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS.
This Agreement applies to you personally (in addition to ObjectBox’s customer contracting with ObjectBox under the Subscription Agreement). Therefore, ObjectBox is entitled to pursue you personally for any breach of its terms. This is in addition to any rights ObjectBox’s customer may have against you separately. If You have purchased a Subscription, then the limitations of liability set forth in the applicable Subscription Agreement will apply in lieu of those set forth in this Section 4, including to the extent modified by an applicable provision in Attachment 1 hereto.
4.1. Disclaimer of Certain Damages. THIS AGREEMENT SETS OUT THE FULL EXTENT OF OUR OBLIGATIONS AND LIABILITIES IN RESPECT OF THE LICENCE GRANTED TO YOU UNDER SECTION 1.1. EXCEPT WHERE EXPRESSLY STATED, THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR OTHER TERMS THAT BIND OBJECTBOX TO YOU. THE SUBSCRIPTION AGREEMENT MAY CONTAIN RESTRICTIONS APPLICABLE TO YOU AS AN AUTHORISED USER (WHICH OBJECTBOX’S CUSTOMER IS OBLIGED TO NOTIFY TO YOU).
4.2. Damages Cap. IN NO EVENT SHALL OBJECTBOX'S OR ITS LICENSORS' AGGREGATE, CUMULATIVE LIABILITY TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000).
4.3. YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN OBJECTBOX AND YOU AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
5.1 This Agreement, including Attachment 1 hereto, which is hereby incorporated herein by this reference, as well as any applicable Order Form and Subscription Agreement, completely and exclusively set out the entire agreement relating to Your specific, individual use of the Commercial Software.
5.2 This Agreement may be modified by ObjectBox only. Any change would be binding on you.
5.3 If any provision hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.
5.4 By using the Commercial Software, you represent and warrant to ObjectBox that you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods, and you agree that you will not export (or re-export) any products unless you have complied with all applicable U.S. and foreign government export controls and approvals.
The following terms have the meanings ascribed:
“Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where "control" means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
“Billable Device” means, with respect to a Subscription, a number that is the greater of (i) the number of Devices running across all Projects covered by the Subscription or (ii) the total number of cores of all devices, wherein a device is specified to have at least one CPU and run an operating system, across the project covered by the Subscription divided by 4 covered by the Subscription, with any fractional remainder being rounded up to the next whole number.
"Contractor" means any third party contractor performing services on Your behalf.
"Documentation" means the published end user documentation provided by ObjectBox with the Commercial Software.
"ObxDB" means the ObjectBox Commercial Database Software known as “ObjectBox Enterprise Database,” use rights to which are subject to the terms of the Licence appended to the Subscription Agreement and included only in a Bronze, Silver, Gold Subscription.
"ObxSync" means the ObjectBox Commercial Synchronization Software known as “ObjectBox Sync Service,” use rights to which are subject to the terms of the Licence appended to the Subscription Agreement and included only in a Sync Bronze, Sync Silver, or Sync Gold Subscription.
“ObxTS” means the ObjectBox Commercial Time Series Software known as “ObjectBox Time Series,” use rights to which are subject to the terms of the Licence appended to the Subscription Agreement and included only in a TS Bronze, TS Silver, or TS Gold Subscription.
"Eligible Features and Functions" means those features and functions of ObjectBox Software that are eligible for use with respect to the particular version of ObjectBox Software licensed by You according to the Subscription Level purchased by You. A list of the Eligible Features and Functions that correspond to each version of the Commercial Software and Subscription levels may be found at https://www.objectbox.io/subscriptions.
"Licence" means a limited, non-exclusive, non-transferable, fully paid up, right and licence (without the right to grant or authorize sublicenses) solely for Your internal business operations to (i) install and use, in object code format, the applicable Commercial Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that You must include on such copies all Marks and Notices; (iii) permit Contractors and Your Affiliates to use the applicable Commercial Software and Documentation as set forth in (i) and (ii) above, provided that such use by Contractors must be solely for Your benefit, and You shall be responsible for all acts and omissions of such Contractors and Affiliates in connection with their use of the applicable Commercial Software that are contrary to the terms and conditions of this Agreement.
“Download Link” means an individual secure link under which the software can be downloaded within 24 hours.
"Malicious Code" means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of Your computer programs or computer systems or destroy or damage data. For clarity, Malicious Code shall not include any software bugs or errors handled through Support Services, or any standard features of functions of the Commercial Software and/or any License Key that are intended to enforce the temporal and/or other limitations on the scope of the use of the Commercial Software to the scope of the License granted to You.
"Marks and Notices" means all ObjectBox trademarks, trade names, logos and notices present on the Documentation as originally provided by ObjectBox.
"Order Form" means the ordering document entered into by ObjectBox and You for the purchase of a Subscription.
"Project" means a specific Customer use case for which ObjectBox Software is used.
"Subscription" means the right to receive Support Services and a License to the Commercial Software.
"Subscription Agreement" means the legally enforceable agreement between ObjectBox and its Customer, under which the Customer purchases a Subscription.
"Subscription Level" means the level of Subscription purchased by ObjectBox’s Customer. The Subscription Level purchased determines the specific Support Services that ObjectBox’s Customer is entitled to receive, and the specific Eligible Features and functions that You are (in turn) entitled to use.
"Subscription Term" means the period of time for which the Subscription is active.