MASTER SOFTWARE LICENSE AGREEMENT
Embarcadero Technologies Europe Ltd.
C/O Vistra International Expansion Limited
Suite 4, 7th Floor
50 Broadway
London SW1H 0DB
England
BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY
OBTAINING A LICENSE KEY FOR THIS SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS
AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK “DO NOT ACCEPT,” DO NOT INSTALL OR
USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE SOFTWARE OR BY
CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THISSOFTWARE LICENSE AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THATIF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLETO YOU. THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS
ELECTRONICALLY EMBEDDED. EMBARCADERO URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE
SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE OR MAKING ANY DECISION TO USE OR PURCHASE IT.
THIS MASTER SOFTWARE LICENSE AGREEMENT, is dated as of the date of, in the case of any Evaluation Software (as defined in Section 16 below),the date of Customer’s acquisition of a License Key, or in the case of any purchase of a license for use of the Licensed Software (as defined below), thedate of the Purchase Order (as defined below) pursuant to which such license is purchased, is betwee Embaracadero Technologies Europe Ltd., a limited
company organized under the laws of England and Wales (“Embarcadero”), and, in the case of any Evaluation Software, the customer to whom temporary
Licenses Keys are delivered or, in the case of any purchase of a license for use of the Licensed Software, the customer set forth on the purchase orderpursuant to which such license is purchased (in each case, herein “Customer”), and sets forth the terms and conditions whereby Embarcadero agrees toprovide to Customer and Customer agrees to acquire from Embarcadero one or more licenses to use certain software and documentation and maintenanceservices related thereto, owned or licensed by Embarcadero or a subsidiary of Embarcadero. Each individual license under this Agreement will be definedin a Purchase Order (as defined below). Each Purchase Order shall be executed separately and, when so executed by both parties and delivered to
Embarcadero, shall constitute and be construed as a separate agreement consisting of the terms and conditions contained in such Purchase Order
together with the terms of this Agreement. To the extent any terms or conditions contained in a Purchase Order conflict with the terms or conditions
contained in this Agreement, the terms and conditions of such Purchase Order shall supersede only those conflicting terms or conditions contained in thisAgreement and only to the minimum extent necessary to harmonize the terms in such Purchase Order with the terms contained herein. This Agreement
specifically supersedes and replaces the terms and conditions of all prior agreements between Embarcadero and Customer relating to the software
licensed hereunder, including, but not limited to, any shrink-wrap agreements, click-wrap agreements or any demo or trial agreements which may
accompany or are embedded in Embarcadero’s products or which have been previously in force between the parties. All Exhibits, Schedules, Annexes,
Purchase Orders referred to herein are hereby incorporated into this Agreement by this reference and made a part hereof. If Customer is evaluating
Evaluation Software (as defined in Section 16 below), then only the terms and conditions of Section 16 below (including those Sections of this Agreement
incorporated therein by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms of this Agreement shall apply
to Customer or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation Software, this entire
Agreement, exclusive of Section 16, shall apply to Customer and govern all use of the Licensed Material (as defined below). In consideration of the mutual
promises and agreements contained herein, the parties hereto also agree as follows:

1.

GENERAL TERMS AND CONDITIONS
third party discloses the information to the recipient or (iv) tohave been compelled to be produced by a court of competent
Definitions –jurisdiction, provided that the recipient shall first give notice to(a) “Agreement” means this master software license agreement,
the disclosing party of any such request or order of the court totogether with all exhibits, schedules, annexes and Purchase
give the disclosing party an opportunity to contest or limit said
Orders made a part hereof in accordance with the terms of thisrequest or order of the court.
Agreement and all amendments, modifications, supplements
and alterations thereto effected in accordance with the terms of(e) "CPU" means the logic circuitry that responds to and processes
this Agreement.
the instructions that run a computer and/or that access or runs(b)“Americas Territory” means those geographical areas foundwithin the boundaries of North America and South America (butexcluding Cuba).

(c)“Asia Pacific Territory” or “AsiaPac Territory” means thosegeographical areas found within the boundaries of Asia andAustralia/Pacific (but excluding North Korea).

(d)the Licensed Software and each CPU may be comprised ofmultiple processing cores, each of which may be configured toindependently act as an individual CPU and shall, when so
configured, be deemed a separate CPU under this definition for
purposes of this Agreement.

“Confidential Information” means all technical and non-technicalinformation in both tangible and intangible form, including, but
not limited to, product design information, software code,technical information, customer information, discounting, costand pricing information, financial information and the results
derived from or methodology employed by Customer in
conducting any benchmark testing of the Licensed Software;
provided that the term “Confidential Information” shall notinclude information which the recipient can show by reasonable
proof (i) to have been known by the recipient prior to the time of
disclosure by the disclosing party, (ii) to have become part of the
public domain through no fault or breach of this Agreement by
the recipient, (iii) to have been disclosed to the recipient in goodfaith by a third party who is not under any obligation ofconfidence or secrecy to the disclosing party at the time such

Embarcadero UK

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(f)

“Error” means any error, defect or omission that (i) is discoveredin the Licensed Software, (ii) is reproducible and (iii) prevents its
operation substantially in accordance with the Licensed
Documentation.

(g)“Europe, Middle East and Africa Territory” or “EMEA Territory”
means those geographical areas found within the boundaries ofEurope, Middle East and Africa, including countries in the former
Soviet Union (but excluding Syria, Iran and Sudan).

(h)“Licensed Country” means, with respect to any Single Seat
License, Workstation License, Concurrent Users License,
Network Named User License, Named User License or CPU
License, the country designated in the applicable Purchase
Order or, in the absence of such designation, the country listed
in such Purchase Order as the “ship to” address; provided that

Master SLA Ver. 112023ns

in the case of a country within the European Union, the“Licensed Country” shall be the European Union.
(i)“Licensed Documentation” means the published user manuals
that Embarcadero makes generally available for the Licensed
Software.

(j)“Licensed Material” means the Licensed Software and theLicensed Documentation.

(k)“Licensed Software” means the machine-readable object code
version of (i) the software specified on each Purchase Order,whether embedded on disc, tape, internet download site or othermedia and (ii) all Updates for the Licensed Software that
Customer is entitled to receive in connection with its receipt ofMaintenance Services pursuant to Section 4 of this Agreement.

(l)“Maintenance Services” means the technical support services
provided by Embarcadero pursuant to Section 4 hereof.

Material, but only a limited right and license to use the Licensed
Materials in accordance with the terms of this Agreement andeach applicable Purchase Order.
Customer further
acknowledges and agrees that the licenses granted hereunder
and the restrictions applicable to Customer’s installation and useof the License Software will vary according to the type ofLicensed Software purchased by Customer and the type of
license purchased by Customer. One or more of the restrictions
set forth in this Section 2 may apply to the Licensed Software
depending upon the type of licensed purchased and the terms
contained in the applicable Purchase Order relating to the
Licensed Software. Customer is encouraged to carefully review
all terms and restrictions contained in this Section 2 and each
Purchase Order. Customer hereby agrees to the following
license restrictions and conditions applicable to the Licensed
Software as set forth in the Purchase Orders delivered by
Customer under this Agreement:(i)

For all Licensed Software made generally available byEmbarcadero on a “per-instance” basis and licensed
hereunder by Customer on a “per-instance” basis,
Customer may install, operate and use such Licensed
Software on one (1) instance per license purchased
by Customer;(ii)

For all Licensed Software made generally available byEmbarcadero on a “per-database” basis and licensed
hereunder by Customer on a “per-database” basis,
Customer may install, operate and use such Licensed
Software on one (1) database per license purchased
by Customer;(iii)

For all Licensed Software made generally available byEmbarcadero on a “per-server” basis and licensed
hereunder by Customer on a “per-server” basis,
Customer may install, operate and use such Licensed
Software on one (1) physical or one (1) virtual server
per license purchased by Customer;(iv)

For all Licensed Software made generally available byEmbarcadero on a “per-user” or “per-seat” basis andlicensed hereunder by Customer on a “per-user” or“per-seat” basis, Customer may install and operatesuch Licensed Software on any number of physicalservers or virtual servers or install and use any
number of instances of the Licensed Software but
Customer shall not access and use such Licensed
Software by more than one (1) user per licensepurchased by Customer;(v)

For all Licensed Software expressly specified in a
Purchase Order as a “Site-License,” Customer may
install, operate and use the Licensed Software on any
number of instances, CPUs, seats, workstations,
physical servers or virtual servers physically locatedat the building or computing facilities specified in thePurchase Order by address as the site and may do sowith any number of users or seats;(vi)

For all Licensed Software expressly specified in a
Purchase Order as an “Enterprise-License,”
Customer may install, operate and use the Licensed
Software on any number of instances, CPUs, physicalservers or virtual servers and may do so with any
number of users or seats; provided, that periodicallyupon Embarcadero’s written request Customer shallprovide Embarcadero with a written report evidencing
actual installation and usage of the License Softwareand pay for all excess license usage in accordancewith the terms of Embarcadero’s standard true-up
addendum (the terms of which are incorporated hereinby reference upon Customer purchasing suchenterprise license);(vii)

For all Licensed Software made generally available byEmbarcadero on a “single seat” or “workstation” basis
and licensed hereunder by Customer on a “single
seat” or “workstation” basis (a “Single Seat License”(m) “Maintenance Term” means the period of time for which
Customer has purchased Maintenance Services, as evidenced
by the Purchase Order delivered by Customer in connection
therewith, together with all renewals effected in accordance with
Section 4 of this Agreement.
(n)

(o)

(p)

2.

“Purchase Order” means (i) Embarcadero’s standard pricequote, purchase order, order form or purchase confirmation, as
such document may be amended, supplemented or modified
from time to time in accordance with this Agreement or (ii) any
other non-Embarcadero price quote, purchase order, order formor purchase confirmation delivered by Customer to
Embarcadero but solely to the extent permitted by and deliveredin accordance with Section 15.
“Territory” means, with respect to a Concurrent User License,
the geographical area in which the Licensed Software may beaccessed and used, which geographical area may be any one,and only one, of the following three geographic areas: Americas
Territory, the EMEA Territory or the AsiaPac Territory, as
specified pursuant to Section 2(a) below.
“Update” means any revision, enhancement, improvement or
modification to or programming fix for the Licensed Software or
Licensed Documentation which Embarcadero makes generally
available, incorporates into and makes a part of the Licensed
Software or Licensed Documentation and does not separately
price or market.

LICENSE –(a) Use – Subject to the terms and conditions of this Agreement,
including, but not limited to the applicable licensing restrictions
set forth in Section 2(b) below, and subject further to Customer’s
full compliance herewith and according to the scope, time period
and other terms indicated on the applicable Purchase Orderdelivered in connection with this Agreement, Embarcadero
hereby grants Customer and Customer hereby accepts from
Embarcadero, a perpetual, non-exclusive and non-transferable
right and license to install the Licensed Software on computer
hardware that is owned or operated by or on behalf of Customer,
to access and use the Licensed Material in accordance with theapplicable restrictions and conditions contained in thisAgreement and to copy the Licensed Material as permitted bythis Agreement. Customer’s right to use the Licensed Material
shall extend to use by third parties under a written agreementwith Customer to provide outsourcing services for Customer's
own internal business operations; provided, that (i) such third
parties have agreed to abide by the terms of this Agreement and(ii) Customer shall remain primarily liable for all acts andomissions by such third parties.

License Usage and Restrictions – Customer acknowledges
and agrees that, as between Customer and Embarcadero,
Embarcadero or its subsidiaries owns and shall continue to own
all right, title, and interest in and to the License Material,
including associated intellectual property rights under copyright,
trade secret, patent, or trademark laws. This Agreement does
not grant Customer any ownership interest in or to the Licensed
Embarcadero UK-2(b)Master SLA Ver. 112023ns

or “Workstation License”), Customer may install andoperate such Licensed Software on one (1) computerfor use by one (1) end user within the Licensed
Country;(viii)(ix)

to ascertain, derive, and/or appropriate the source code orsource listings for the Licensed Software or any trade secret orother proprietary information contained in the Licensed
Software.

For all Licensed Software made generally available byEmbarcadero on a “concurrent users” basis (each, a“Concurrent License”) and licensed hereunder by
Customer as a Concurrent License, Customer may
install and operate such Licensed Software on a
network within the Licensed Country to be usedconcurrently on different computers by up to theauthorized number of users for which Customer has
purchased a license, provided that the Licensed
Software is accessed and used only in the Territory;
For all Licensed Software made generally available byEmbarcadero on a “network named user” or “nameduser” basis and licensed hereunder by Customer on a
“network named user” or “named user” basis (a“Network Named User License” or “Named User
License”), Customer may install and operate such
Licensed Software on one or more computers anddesignate one (1) person in Customer’s organization(the "Named User") who shall have the right to use theLicensed Software within the Licensed Country,
provided that only the Named User uses the Licensed
Software;(x)

If Customer has purchased a license for ER/Studio
Team Server Core or ER/Studio Portal, such license
is an exclusive connection license and may only be
installed on Customer’s computers up to the total
number of licenses purchased to connect to a single
server; provided, that such licenses may bereapportioned to different users up to the total numberof license purchased;(xi)

Customer may not mix and match or use ER/Studio
Team Edition licenses with ER/Studio Enterpriselicenses or other ER/Studio editions which canconnect to the repository applicable to ER/Studio; and(xii)

Customer shall not connect non-Team Edition of
ER/Studio, such as ER/Studio Enterprise, to the Team
Edition repository applicable to ER/Studio and if
Customer has purchased a license for ER/Studio
Team Edition, Customer must upgrade all existing
ER/Studio licenses having repository connectivity to
ER/Studio Team Edition.

3.

For any Licensed Software that is restricted by a Licensed
Country or Territory, temporary usage of such Licensed
Software by a user outside the Licensed Country or Territory is
permitted while such user is traveling provided that all suchusage does not exceed thirty (30) days in any twelve-month
period. In no event shall Customer install, operate, use oraccess the Licensed Software in contravention of the foregoing
restrictions applicable to the Licensed Software or any otherrestrictions contained in this Agreement.
(c)

Maintenance Optional – Customer’s right to use the Licensed
Software shall survive any election by Customer to terminate or
not renew Maintenance Services from Embarcadero.

(e)Other Services – All licenses and Maintenance Services
purchased by Customer in respect of the Licensed Material shallbe governed by this Agreement, together with the applicable
Purchase Orders delivered hereunder. Unless otherwise agreed
by the parties in writing, all other services purchased by
Customer in respect of the Licensed Software, if any, including
implementation services, training services and professional
services (collectively, “Ancillary Services”), shall be governedsolely by a separate written mutually acceptable services
agreement entered into by the parties or, in the absence of suchagreement, Embarcadero’s standard professional services
agreement, and acceptance of the Licensed Material shall not
be contingent upon Customer’s acceptance of any such
Ancillary Services.

DELIVERY AND PAYMENT TERMS –(a) Delivery – All Licensed Material shall be delivered by
Embarcadero to Customer via electronic delivery using a secureinternet download site. Ownership of all licenses purchased
hereunder and risk of loss for the related Licensed Materials
shall be deemed to have passed to Customer once
Embarcadero has made the Licensed Material available fordownload by Customer, notified Customer of the availability of
the Licensed Material for download and provided Customer with
License Keys necessary for the installation and operation of theLicensed Software.
(b)

Payment – Upon delivery of a Purchase Order by Customer,
Embarcadero shall deliver an invoice to Customer specifying thelicense fees and Maintenance Services fees payable pursuant
to such Purchase Order. Customer shall pay all license fees andMaintenance Services fees specified therein within thirty (30)days of Customer’s receipt of such invoice. All fees payable by
Customer in respect of such Ancillary Services may beseparately invoiced.
Customer’s payment obligation withrespect to all license fees and Maintenance Services fees owing
hereunder shall be independent of the provision of Ancillary
Services, whether or not such Ancillary Services are separately
invoiced. Any late payment of any amount owing hereundershall accrue interest at a rate equal to the lesser of (i) 15% perannum and (ii) the maximum rate permitted by law.

(c)Taxes – All payments referred to in this Agreement are exclusiveof value added tax, sales tax and any other applicable taxes,
duties or imposts which (with the exception only of those basedon Embarcadero’s income) shall also be payable by Customer
in accordance with applicable law.

4.
MAINTENANCE – Embarcadero does not warrant that the Licensed
Software will operate error-free or may be used error-free. Upon
Customer’s payment of the Maintenance Services fees associated with theMaintenance Term purchased by Customer for the Licensed Software
specified in a Purchase Order, Embarcadero shall provide Maintenance
Services in accordance with this Section 4 and in accordance with any
additional Maintenance Services terms specified in such Purchase Order.

Copies & Disaster Recovery – Customer may make areasonable number of back-up archival copies of the Licensed
Software. In the event of any outage that results in the complete
failure of the computer system upon which Customer has
installed the Licensed Software, Customer’s right to use theLicensed Software shall include, during the pendency of suchoutage, the temporary right to use the Licensed Software in a
replacement computing environment substantially similar to theoriginal computing environment upon which the Licensed
Software was installed immediately prior to such outage.
Customer shall reproduce all confidentiality and proprietary
notices on each of the copies permitted hereunder and maintainan accurate record of the location of each of the copies.
Customer shall not otherwise copy or duplicate the Licensed
Material. Customer shall not reverse engineer, disassemble,
translate, modify, adapt, or decompile the Licensed Material orapply any procedure or process to the Licensed Material in order

Embarcadero UK

(d)

(a)

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Maintenance Agreement – Embarcadero or its authorized
representative will provide Maintenance Services for the
Licensed Software during each Maintenance Term.
Maintenance Services includes problem determinations,reasonable problem resolutions, provisioning of software
program temporary fixes and new releases. Maintenance
Services shall also include the additional Maintenance Service
terms expressly set forth in writing in the applicable Purchase
Order delivered by Customer, which are hereby incorporated
herein by reference. Maintenance Services shall entitle
Customer to receive, at no additional cost, all Updates.
Master SLA Ver. 112023ns

(b)

(c)

Additional Maintenance Term – Upon expiration of each
Maintenance Term, Maintenance Services shall automaticallyrenew for an additional 12-month Maintenance Term and
Embarcadero will invoice Customer unless Embarcadero or its
authorized representative is notified by Customer in writing atleast sixty (60) days prior to the expiration of the current
Maintenance Term that Customer will not purchase
Maintenance Services for another Maintenance Term.

Customer's sole and exclusive remedy, and Embarcadero's andits authorized representatives’ sole and exclusive liability, for any
breach of warranty, Error or failure of the Licensed Software tofunction properly.
(c)Reinstatement – If Customer terminates Maintenance Services
or elects not to renew Maintenance Services, Customer may, at
its option, purchase Maintenance Services within one year ofsuch termination or non-renewal by providing notice to
Embarcadero and making payment of Embarcadero’s thencurrent list maintenance fees for the upcoming 365-day period
plus an amount equal to 1.5 times the Maintenance Services
fees that would have accrued during the period subsequent tosuch termination or non-renewal, had Customer not terminatedor elected not to renew Maintenance Services.

7.

5.
PROPRIETARY RIGHTS – Customer shall not acquire, by virtue of
this Agreement, any right or license other than as expressly provided
herein. Customer shall not reproduce the Licensed Material or otherconfidential or proprietary information of Embarcadero, except as provided
in this Agreement. All proprietary rights in and to the Licensed Material
and all Evaluation Software (as defined in Section 16 below), allderivatives, translations, modifications, adaptations, improvements,
enhancements or developments thereof and all confidential or proprietary
information of Embarcadero, including without limitation, all rights under
and with respect to patents, copyrights, trademarks and rights under the
trade secret laws of any jurisdiction shall remain the sole property of
Embarcadero or its applicable licensor, whether recognized by or perfectedunder applicable local law. Customer shall promptly notify Embarcadero of
any infringement of Embarcadero’s proprietary rights of which it becomesaware.
6.

INDEMNITY(a)

Indemnity – Subject to this Section 7 and Section 8 below,
Embarcadero agrees to indemnify, defend and hold harmless
Customer from and against all claims, damages, losses,
liabilities and expenses (including, but not limited to, reasonable
attorneys’ fees) arising out of any claim by a third party assertingthat the Licensed Material or any of Customer’s use thereof,
infringes upon any third party's patent, copyright or trademark,provided that (i) Customer promptly notifies Embarcadero inwriting no later than thirty (30) days after Customer’s notice ofany potential claim, (ii) Customer permits Embarcadero to
defend, compromise or settle the claim, and provided further thatno settlement intended to bind Customer shall be made without
Customer’s prior written authorization and (iii) Customer gives
Embarcadero all available information, reasonable assistance,
and authority to enable Embarcadero to do so.

(b)

Alternative Remedy – If a claim described in Paragraph 7(a)may or has been asserted, Customer will permit Embarcadero,
at Embarcadero's option and expense, to (i) procure the right tocontinue using the Licensed Material, (ii) replace or modify the
Licensed Material to eliminate the infringement while providing
functionally equivalent performance or (iii) accept the return of
the Licensed Material and refund to Customer the amountactually paid to Embarcadero or its authorized representative forsuch Licensed Material, less depreciation based on a 3-year
straight-line depreciation schedule.

(c)

Limitation – Embarcadero shall have no indemnity obligation to
Customer hereunder if the violation or infringement claim resultsfrom (i) a correction or modification of the Licensed Material notprovided by Embarcadero or its authorized representative, (ii)the failure to promptly install an Update, (iii) the combination of
the Licensed Software with other non-Embarcadero softwareand (iv) continuing the allegedly infringing activity after receiving
written notice of such infringement claim from Embarcadero.

LIMITED WARRANTIES
(a)

(b)

Warranty – Embarcadero warrants to Customer that during thefirst thirty (30) days after purchase of the Licensed Software (the“Warranty Period”) such Licensed Software will perform
substantially as described in the accompanying Licensed
Documentation. Embarcadero does not warrant that (i) the
Licensed Software will satisfy or may be customized to satisfy
any of Customer's requirements or any other particular use or (ii)the use of the Licensed Software will be uninterrupted or errorfree. Laws from time to time in force may imply warranties thatcannot be excluded or can only be excluded to a limited extent.
This Agreement shall be read and construed subject to any suchstatutory provisions.
Remedies – If (i) at any time during a Maintenance Term, theLicensed Software contains Errors which make the Licensed
Software unable to perform substantially as described in theaccompanying Licensed Documentation or (ii) during theWarranty Period, Embarcadero breaches the warranty set forthin clause (a) above, then Customer shall promptly notify
Embarcadero of such Error or breach and Embarcadero shall (A)use all commercially reasonable efforts to correct such Error or
breach within thirty (30) days of notification or (B) provide
Customer within thirty (30) days of notification with a plan
acceptable to Customer for correcting such Error or breach. Ifsuch Error or breach is not corrected or if an acceptable plan forcorrecting such Error or breach is not established within such
thirty (30) day period, Embarcadero shall replace the defective
Licensed Software or, if not practicable, accept the return of thedefective Licensed Software and refund to Customer the amount
paid for the defective Licensed Software, less depreciation
based on a 3-year straight line schedule. Embarcadero’s
obligations under this Section 6(b) shall be waived in the event
such Error or breach is due to (I) any defect in or
misconfiguration of the computer hardware upon which the
Licensed Software is installed, (II) improper handling or use of
the software media by Customer, or (III) an unauthorizedalteration, revision or configuration of the Licensed Software or
to Customer’s computer system by Customer or its employees.
Customer acknowledges that this Section 6(b) sets forth

Embarcadero UK

Disclaimer – EXCEPT AS EXPRESSLY PROVIDED IN THISAGREEMENT, ALL WARRANTIES, REPRESENTATIONS,INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED,ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTENSTATEMENTS BY EMBARCADERO OR ITS AUTHORIZEDREPRESENTATIVES OR OTHERWISE (INCLUDING, BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBYOVERRIDDEN AND DISCLAIMED.

8.
NO
CONSEQUENTIAL
DAMAGES–UNDERNOCIRCUMSTANCES WILL EMBARCADERO OR ITS AUTHORIZEDREPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTALDAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE,
BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED
MATERIALS, INTERRUPTION IN USE OR AVAILABILITY OF DATA,STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS),ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY,
BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL
PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICTLIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OFPERSONAL INJURY WHERE AND TO THE EXTENT THATAPPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL
THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR
PROCEEDING BY EMBARCADERO OR ITS AUTHORIZEDREPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAIDBY CUSTOMER FOR THE SPECIFIC LICENSED SOFTWARE THATDIRECTLY CAUSED THE DAMAGE.
9.
-4-CONFIDENTIALITY
Master SLA Ver. 112023ns

(a)Confidentiality. – Customer acknowledges that the Licensed
Materials incorporate confidential and proprietary information
developed or acquired by or licensed to Embarcadero and that
all results of testing of the Licensed Software, whether
performed by Customer or another third party, are confidential.
In no event will Customer publish or disclose the results of any
testing or performance specifications of the Licensed Software
without Embarcadero’s express prior written consent. A party
that receives Confidential Information (the “Receiving Party”)
from the other party (the “Disclosing Party”) shall not: (i) export
or re-export (within the meaning of US laws or other export
control laws or regulations) any Confidential Information, except
in strict compliance with US laws; (ii) reverse engineer any
Confidential Information; or (iii) disclose or make available theDisclosing Party’s Confidential Information to any of theReceiving Party’s employees, agents, contractors or consultants
or to any third parties, except those that have agreed in writing
to be bound by terms and conditions substantially similar to, andno less restrictive with respect to limitations on use anddisclosure, than those contained in this Agreement and each ofwhich have a “need to know” in order to carry out the purposes
set forth in this Agreement. Each party shall take all reasonableprecautions necessary to safeguard the confidentiality of all
Confidential Information disclosed by the other party, including
those precautions (A) taken by the disclosing party to protect its
own Confidential Information and (B) which the disclosing party
or its authorized representative may reasonably request fromtime to time. Neither party shall allow the removal or defacementof any confidentiality or proprietary notice placed on the
Confidential Information disclosed by the disclosing party. The
placement of copyright notices on Confidential Information shallnot constitute publication or otherwise impair their confidential
nature of such information.

including any future changes to the government’s list of State Sponsors ofTerrorism.
12. EQUITABLE RELIEF – The parties recognize that Sections 5, 9, 11
and 13 are necessary for the protection of the business and goodwill of theparties and are considered by the parties to be reasonable for such
purpose. The parties agree that any breach of such Sections would cause
the other party substantial and irreparable damage and therefore, in theevent of any such breach, in addition to other remedies which may beavailable, the non-breaching party shall have the right to seek specificperformance and other injunctive and equitable relief in a court of law.
13. LICENSE KEY & USE REPORTING – Customer acknowledges thata security code owned and controlled by Embarcadero or its subsidiaries(the "License Key") is required to render the Licensed Software operational
on Customer’s computer hardware. Upon use of a permanent License Key
to install the Licensed Software on Customer’s computer hardware, noother security code will be required for the Licensed Material to operate onsuch computer hardware in accordance with the terms and restrictions
contained in this Agreement. Customer shall not attempt to crack, alter orotherwise derive the License Key. Embarcadero shall promptly provide
Customer with all necessary License Keys upon purchase of the Licensed
Software or upon any authorized transfer of the Licensed Software to any
other hardware equipment permitted under Section 2 of this Agreement.
Embarcadero reserves the right to gather data on license usage by
Customer for each item of Licensed Software, including License Key
numbers, server IP addresses, email addresses of users, domain counts
and other information deemed relevant, to ensure that the Licensed
Software is being used in accordance with the terms of this Agreement.
Embarcadero expressly prohibits domain count overrides without priorwritten approval. Customer hereby consents to Embarcadero gatheringand processing such usage information and agrees not to block,electronically or otherwise, the transmission of data required forcompliance with this Agreement. Any unauthorized use of the Licensed
Software by Customer or other use by Customer in violation of therestrictions contained herein shall be deemed a material breach of thisAgreement. In addition to the foregoing, within ten (10) business days of
Customer’s receipt of Embarcadero’s written request, Customer shallprovide to Embarcadero a written report certifying to Embarcadero thenumber of licenses for Licensed Software installed, used or accessed by
Customer, the identity of the applicable servers, hardware or computers
upon which such licenses are installed and, to the extent applicable, theinstallation location and location and number of users accessing suchlicenses, together with such other information as may be requested by
Embarcadero and necessary to confirm Customer’s compliance with theterms of this Agreement. The auditing, reporting and certification rights andobligations set forth in this Section 13 shall survive termination of thisAgreement for a period of eighteen months.

(b) Disclosure – If an unauthorized use or disclosure of thedisclosing party’s Confidential Information occurs within therecipient party’s enterprise, the recipient party will immediately
notify the disclosing party or its authorized representative andtake, at recipient party’s expense, all steps which may beavailable to recover such Confidential Information and to prevent
its subsequent unauthorized use or dissemination.
10. TERMINATION – Upon prior written notice to Embarcadero,
Customer may terminate this Agreement without any right to refund, except
as otherwise expressly set forth in this Agreement. If Customer or any of
Customer’s employees, consultants, authorized representatives or
permitted third parties breach any term or condition of this Agreement,
Embarcadero may terminate this Agreement, without judicial oradministrative resolution or obligation to refund. This Agreement willterminate automatically if Customer ceases to do business, becomesinsolvent, goes or is put into receivership or liquidation, passes a resolution
for its winding up (other than for the purpose of reconstruction or
amalgamation) or for any of the foregoing, makes an arrangement for the
benefit of its creditors, enters into bankruptcy, suspension of payments,
moratorium, reorganization or any other proceeding that relates toinsolvency or protection of creditors’ rights or takes or suffers any similaraction in consequence of debt. Upon the termination of this Agreement for
any reason, all rights granted to Customer hereunder will cease, andCustomer will promptly (i) purge the Licensed Software and any related
Updates from all of Customer’s computer systems, storage media andother files, (ii) destroy the Licensed Material and all copies thereof and (iii)
deliver to Embarcadero an affidavit certifying that Customer has compliedwith these termination obligations. The provision of Sections 1, 3, 8
through 12, 14, 15 and 17 shall survive the termination of this Agreement.

14. ENFORCEABILITY – If for any reason a court of competentjurisdiction finds any provision of this Agreement, or portion thereof, to be
unenforceable, void, invalid or illegal, that provision shall be enforced tothe maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement shall continue in full force and effect.
15.

(a)

11. U.S. EXPORT RESTRICTIONS – Customer acknowledges that the
Licensed Materials and all related technical information, documents andmaterials are subject to export controls under the U.S. Export
Administration Regulations. Customer covenants and agrees to comply
with all import and export control regulations of the United States withrespect to the Licensed Material. Customer acknowledges that it may not
re-export or divert the Licensed Material or any related technicalinformation, document or material, or direct derivatives thereof, to any
country set forth on the U.S. Department of Commerce’s list of State
Sponsors of Terrorism (currently, Cuba, Iran, North Korea, and Syria),

Embarcadero UK

ENTIRE AGREEMENT-5-

Customer acknowledges that it has read this Agreement,
understands it and agrees to be bound by its terms. Customer
and Embarcadero further agree that, subject to clause (b) below,
this Agreement, together with all Purchase Orders delivered inconnection herewith and all exhibits, schedules and annexes
hereto, is the complete and exclusive statement of theagreement between Customer and Embarcadero andsupersedes all proposals, oral or written, and all othercommunications between the parties relating to the subject
matter of this Agreement, including any shrink-wrap
agreements, click-wrap agreements or demo or trial agreements
which may accompany the Licensed Material or which may havebeen previously in force between the parties. Subject to clause(b) below, this Agreement may not be amended, modified,
supplemented or altered except by a written agreement that issigned by both parties.

(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THISAGREEMENT OR ANY EMBARCADERO PURCHASEORDER BE AMENDED, MODIFIED, SUPPLEMENTED,
Master SLA Ver. 112023ns

ALTERED, SUPERSEDED OR REPLACED BY ANY NONEMBARCADERO INVOICE OR NON-EMBARCADERO
PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT
DELIVERED BY CUSTOMER TO EMBARCADERO. EACH
PARTY ACKNOWLEDGES AND AGREES THAT, AS A
CONVENIENCE TO CUSTOMER AND ONLY FORCUSTOMER’S INTERNAL ACCOUNTING PROCEDURES,CUSTOMER MAY DELIVER TO EMBARCADERO A
CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDEROR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTIONCONTEMPLATED HEREUNDER AND THAT NO ACTION BY
EMBARCADERO,
INCLUDINGEMBARCADERO’SDELIVERY OF ANY LICENSED MATERIALS OR
ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE
ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONSCONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMERPURCHASE ORDER OR OTHER SIMILAR INSTRUMENT
AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND
OF NO FORCE OR EFFECT, UNLESS ACCEPTED BYEMBARCADERO PURSUANT TO A WRITTEN INSTRUMENTSIGNED BY BOTH PARTIES.
16.

EMBARCADERO SPECIFICALLY DISCLAIMS ANY AND ALL
WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE. EMBARCADERO DOES NOT WARRANT THATTHE EVALUATION SOFTWARE WILL OPERATE WITHOUTINTERRUPTION OR BE ERROR FREE.
UNDER NOCIRCUMSTANCES WILL EMBARCADERO OR ITSAUTHORIZED REPRESENTATIVES BE LIABLE FOR ANYCONSEQUENTIAL,
INDIRECT,SPECIAL,
PUNITIVE,
EXEMPLARY OR INCIDENTAL DAMAGES, WHETHERFORESEEABLE OR UNFORESEEABLE OR WHETHERBASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY,ARISING OUT OF OR RELATED TO CUSTOMER’S USE OFEVALUATION SOFTWARE.
IN NO EVENT WILL THE
AGGREGATE LIABILITY OF EMBARCADERO OR ITSAUTHORIZED REPRESENTATIVES INCURRED IN ANYACTION OR PROCEEDING RELATING TO CUSTOMER’SUSE OF EVALUATION SOFTWARE EXCEED ONE
HUNDRED DOLLARS.
(f)

The Evaluation and the evaluation license granted under thisSection 16 shall automatically terminate immediately upon theearliest of (i) the expiration of the Evaluation Period, (ii) the dateupon which Customer purchases a commercial license for such
Evaluation Software and (iii) the date upon which either party
notifies the other party of its termination of the Evaluation. Upon
expiration of the Evaluation Period or the Evaluation, Customer
shall cease using and shall uninstall and destroy the Evaluation
Software unless Customer has purchased a commercial license
for such Evaluation Software on or prior to such expiration.

(g)

Sections 1, 5, 8, 11, 14, 15 and 17(a) through 17(g) of thisAgreement shall be deemed incorporated by this reference inthis Section 16 and the Evaluation license granted under thisSection 16.

TRIAL LICENSE
(a)

(b)

(c)

(d)

(e)

If Customer is evaluating Evaluation Software (as defined
below), then only the terms and conditions of this Section 16(including those Sections of this Agreement incorporated in thisSection 16 by reference) will govern Customer’s temporary useof such Evaluation Software (and no other terms of thisAgreement shall apply to Customer or govern Customer’s use of
Evaluation Software) and upon purchase of a commercial
license for such Evaluation Software, this entire Agreement,
exclusive of this Section 16, shall apply to Customer and govern
all use of the Licensed Material.
Embarcadero is the owner and provider of certain proprietary
software and documentation that Customer may request to use,from time to time, on a temporary basis for the sole purpose of
testing and evaluating such software prior to purchasing acommercial license for such software (“Evaluation Software”). All
installation and usage of Evaluation Software by Customer
requires a temporary License Key or trial License Key to beissued by Embarcadero and Customer is only permitted to use
Evaluation Software during the term of the temporary License
Key or trial License Key issued by Embarcadero.

17.

Evaluation Software is provided to Customer solely forevaluation purposes for Customer’s own testing and evaluation
purposes (an “Evaluation”) and upon delivering a temporary
License Key or trial License Key to Customer, Embarcadero
hereby grants Customer a non-transferable, nonexclusive,
limited license to operate and use the Evaluation Software forsuch Evaluation during the period commencing on the date
Customer downloads the Evaluation Software and ending on the
expiration of the temporary License Key or trial License Key(including any extensions thereof authorized by Embarcadero,
the “Evaluation Period”). Customer agrees not to cause or permit
the reverse engineering, disassembly, modification, translation
or decompilation of any Evaluation Software. Customer shall notcopy the Evaluation Software, or create or develop any
derivative software based upon the Evaluation Software.
Customer acknowledges that all Evaluation Software incorporates confidential and proprietary information developed or
acquired by or licensed to Embarcadero and that all results oftesting of the Evaluation Software, whether performed by
Customer or another third party, are confidential. In no event will
Customer publish or disclose the results of any testing or
performance specifications of the Evaluation Software without
Embarcadero’s express prior written consent. Customer shallnot remove or deface of any confidentiality or proprietary noticeplaced on the Evaluation Software. The placement of copyrightnotices on Evaluation Software shall not constitute publication orotherwise impair their confidential nature of such information.

(b)

All notices or approvals required or permitted under thisAgreement must be given in writing and delivered to theappropriate party at the address set forth in this Agreement or in
any Purchase Order delivered in connection with thisAgreement.

(c)

The waiver of compliance with or breach of any term or conditionof this Agreement or the failure of a party to exercise any rightunder this Agreement shall in no event constitute a waiver as toany other failure to comply or breach, whether similar or
dissimilar in nature, or prevent the exercise of any right under
this Agreement.

(d) THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF ENGLAND
AND WALES WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW RULES.
EMBARCADERO AND CUSTOMERHEREBY IRREVOCABLY AGREE ON BEHALF OF
THEMSELVES THAT THE SOLE AND EXCLUSIVEJURISDICTION AND VENUE FOR ANY LITIGATION ARISINGFROM OR RELATING TO THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF SHALL BE IN THE HIGHEST
COURT OF ENGLAND.

ALL
EVALUATIONSOFTWARE
PROVIDEDBY
EMBARCADERO IS DELIVERED "AS IS, WHERE IS" AND

Embarcadero UK

MISCELLANEOUS(a) Customer shall not assign, delegate or otherwise transfer thisAgreement or any of its rights or obligations hereunder to any
other person or entity, whether by contract, merger or operationof the law, without Embarcadero’s prior written consent. In theevent of any merger of Customer or a sale of substantially all of
the assets of Customer in which Customer is not the surviving
entity, Customer may assign or transfer any licenses granted
under this Agreement; provided, that Customer provides
Embarcadero with written notice of such transfer within thirtydays of such merger or sale. Any assignment or delegation inbreach of this Section 17(a) shall be void. This Agreement shallbe binding upon the parties hereto and shall inure to the benefitof the parties hereto and their respective permitted successors
and assigns.

-6-

Master SLA Ver. 112023ns

(e)Unless otherwise specified herein, the rights and remedies of
Embarcadero set forth in this Agreement are not exclusive andare in addition to any other rights and remedies available to it atlaw or in equity. In the event of Customer’s failure to pay any
fees set forth in this Agreement or any applicable Purchase
Order, Embarcadero shall be entitled to recover its costs andexpenses, including but not limited to reasonable attorneys’
fees, incurred in any collection efforts or legal action.

(f)This Agreement is not intended to be nor shall it be construed asa joint venture, association, partnership or other form of businessorganization or agency relationship.

(g)

Headings used in this Agreement are for reference purposes
only and shall not be used to modify the meaning of the terms
and conditions of this Agreement. This Agreement may be
executed in counterparts, all of which shall constitute one single
agreement between the parties hereto.

Embarcadero UK(h)In consideration of the mutual covenants contained herein,
including the rights and licenses granted to Customer herein, theparties hereto do hereby agree that for a period of two years
following Customer’s most recent purchase of any licenses orservices, including Maintenance Service, from Embarcadero or
its authorized representative, Customer shall not solicit, induce,
hire, engage, or attempt to hire or engage any employee of
Embarcadero, or in any other way interfere with Embarcadero’s
contractual or employment relations with any of its employees,
nor will Customer hire or engage or attempt to hire or engage
any individual who was an employee of Embarcadero at any time
during such two-year period.
[END OF AGREEMENT]-7-

Master SLA Ver. 112023ns