DataTorrent Software License

LIMITED LICENSE AGREEMENT

(Date of Revision: May 3, 2017)

THIS LIMITED LICENSE AGREEMENT (“Agreement”) APPLIES TO EVALUATION EDITIONS AND OTHER FREE EDITIONS OF DATATORRENT’S SOFTWARE MADE AVAILABLE FOR DOWNLOAD FROM https://www.datatorrent.com and any updates thereto (“Software”). THE SOFTWARE TO WHICH THIS AGREEMENT APPLIES INCLUDES RTS – SANDBOX APPLIANCE, DATATORRENT RTS – INSTALLABLE BINARY AND DATATORRENT RTS – CLOUD INSTANCE.

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR ANY DOCUMENTATION PROVIDED BY DATATORRENT. THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERN YOUR USE OF THE SOFTWARE AND DOCUMENTATION. THIS AGREEMENT CONSITUTES THE ENTIRE AND EXCLUSIVE AGREEMENT BETWEEN YOU AND DATATORRENT PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT (WHICH INCLUDES THE LICENSE AND USE OF THE SOFTWARE AND DOCUMENTATION), AND SUPERSEDES ANY OTHER PRIOR AGREEMENTS OR UNDERSTANDINGS, WRITTEN OR ORAL BETWEEN YOU AND DATTORRENT, INCLUDING ANY OTHER PRIOR LICENSE AGREEMENTS GOVERNING YOUR USE OF THE SOFTWARE AND DOCUMENTATION FOR PRIOR RELEASES OF THE SOFTWARE.

You represent that: (a) if you are entering into this Agreement on behalf of another person or entity, you are duly authorized by such person or entity to enter into this Agreement which will be binding upon both you individually and such other person or entity (and “you” in this Agreement shall refer to such other person or entity), (b) you are of the legal age to form a binding contract with DataTorrent, and (c) you are not a person barred from downloading, installing or using Software or Documentation under the laws of the United States or other applicable jurisdiction.

DataTorrent, Inc. (“DataTorrent,” “us” or “we“), is willing to license the Software and any accompanying documentation (“Documentation”) to you on a limited basis, subject to all the terms and conditions contained in this Agreement. By downloading, installing or using the Software or Documentation, you agree to all the terms and conditions of this Agreement. If you do not agree to the terms of this Agreement, you may not download, install or use the Software or Documentation.

We reserve the right to update or make changes to this Agreement from time to time in our sole discretion, and we may notify you of changes by any reasonable means, including without limitation, by posting the revised version of this Agreement on our website at https://www.datatorrent.com/datatorrent-software-license/ (or successor website), which changes will become effective immediately upon the posting on our website. You can determine when this Agreement was last revised by referring to the “Date of Revision” at the top of this Agreement. Your continued access or use of the Software or Documentation after any changes to this Agreement have been posted shall constitute your agreement and consent to such changes. Please return to this page periodically to ensure familiarity with the most current version of this Agreement.

1.  LICENSE.

1.1  Grant of License. Subject to your compliance with the terms and conditions of this Agreement, DataTorrent grants you a limited, nonexclusive, non-transferable, non-sublicenseable license, during the term of this Agreement and subject to the Authorized Processing Capacity:
(a) to download, install and use a single copy of the Software on either a set of computers connected and working together as a single computer (a “Cluster”) or a single computer (a “Computer”), which Cluster or Computer is owned or controlled exclusively by you;

(b) to make a one (1) back-up copy of the Software which may not be used, operated or deployed unless the original copy of the Software is not in use on the applicable Cluster or Single Computer; and

(c) to use and copy the Documentation in support of your authorized use of the Software.

The licenses granted above in subsections (a) through (c) above may be exercised solely for Non-Production Purposes and solely for developing, testing and running operators, applications, and plug-ins created using the Software and/or which interoperate with the Software (“Applications”). “Non-Production Purposes” means internal evaluation, development and testing only, and “Authorized Processing Capacity” means the amount of memory reserved for Applications within the Cluster or Computer, as applicable, not to exceed 128 gigabytes of memory. DataTorrent may, in its sole discretion, provide you with an individual license key which provides and authorizes a number larger than 128 gigabytes as your Authorized Processing Capacity under this Agreement, which may be revoked at any time. For avoidance of doubt, this Agreement permits you to use the Software for only a single Cluster or single Computer, subject to the Authorized Processing Capacity. If you wish to obtain a license to use the Software for additional Clusters or additional Computers, you must enter into one (1) or more a separate written license agreements with DataTorrent authorizing your use of the Software and you must download the Software separately under each such license agreement. You do not have the right to use the Software downloaded and licensed under this Agreement for any additional Clusters or Computers, even if you have entered into a separate license agreement with DataTorrent authorizing the use of the Software for additional Clusters or Computers.

1.2  License Restrictions. You will not, and will not authorize, permit or assist any third party to: (a) use the Software for more than either a single Cluster or single Computer under this Agreement; (b) use the Software in any manner that exceeds the applicable Authorized Processing Capacity for the Software or for any commercial or production purposes; (c) decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary, and only after you have notified DataTorrent in advance of such intended activities), or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in, the Software; (d) remove or alter any trademark, copyright or other proprietary rights notices (“Notices“) on the Software or Documentation and will duplicate and display all such Notices on the back-up copy of the Software and all copies of the Documentation; (e) modify, adapt, port, translate, or create any derivative works based on the Software or Documentation or make copies of the Software other than a single back-up copy as permitted in Section 1.1(b); (f) distribute, sublicense, sell or otherwise transfer the Software or Documentation, lease, lend or rent the Software or Documentation, make the Software available on a service bureau, time sharing, rental, application services provider, hosting or other computer services basis to third parties, or otherwise make the functionality of the Software available to third parties; (g) use the Software and Documentation to create a product or service which is similar to or competitive with the products and services of DataTorrent; or (h) use the Software or Documentation in any manner except as expressly authorized under Section 1.1.

1.3  Registration. If DataTorrent has established a registration procedure for the Software, you must complete registration within the time frames established by DataTorrent for the Software. DataTorrent’s practices regarding the collection, use and disclosure of information that we receive from you are set forth on our website at https://www.datatorrent.com/privacy-policy.

1.4  Limited Rights. The Software and Documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software and Documentation will be only those specified in this Agreement. Your rights in the Software and Documentation will be limited to those expressly granted in Section 1.1. DataTorrent and its licensors reserve all rights and licenses in and to the Software and Documentation not expressly granted to you under this Agreement.

1.5  Open-Source Software. Portions of DataTorrent’s Software are licensed by DataTorrent exclusively under the terms of the Apache License, Version 2.0 (“Open Source Software“), including all warranty disclaimers and limitations on liability therein, and the usage limitations and restrictions set forth in this Agreement shall not apply to DataTorrent’s Open Source Software. Notwithstanding the foregoing, Licensee shall not use the Open Source Software, or any other portion of the Software, in such a manner that would require such other portions of the Software, in whole or part, to be licensed under Open Source Terms. “Open Source Terms” means any terms which require: (a) the Software or any portion thereof be disclosed or distributed in source code form; and/or (b) the Software or any portion thereof be licensed for the purpose of making modifications or derivative works; and/or (c) the Software or any portion thereof be redistributable at no charge; and/or (d) the Software or any portion thereof be permitted to be reverse engineered; and/or (e) the Software or any portion thereof be used only for non-commercial purposes; and/or (f) the Software or any portion thereof to include any third party attribution; and/or (g) any patent non-assert obligations or patent license by DataTorrent, its assignees or licensees.

1.6  Third-Party Software. DataTorrent’s Software may be accompanied by other software supplied by third-parties, such as Ubuntu and Hadoop. Without limiting the terms in this Agreement, DataTorrent expressly disclaims any warranty and all liability to you regarding such third-party software, which is provided to you exclusively subject to the terms provided by such parties that accompany such third-party software.

2.  USE OF SOFTWARE.

2.1  Usage Data. You acknowledge and agree that the Software reports back to DataTorrent information about your use of the Software, including the Hadoop version number, aggregate RAM usage (all streaming apps), Linux OS version if applicable, Resource Manager node URL, streaming platform version, Java Virtual Machine version and vendor, and information about the Cluster or Computer on which the Software is installed (“Usage Data”). You will ensure that the Software, as installed and used, will have external network access to enable the Software to send the Usage Data to DataTorrent. In the event such Usage Data is not reliably reaching DataTorrent, you will promptly assist DataTorrent to troubleshoot and remediate the issue so as to enable the transmission of the Usage Data or otherwise provide such information directly to DataTorrent. You agree that we may use the Usage Data to troubleshoot and monitor the Software and to enhance, improve, and develop current and future Software and services, as well as to verify your compliance with this Agreement.

2.2  Shut-Off Functionality. DataTorrent reserves the right to include shut-off and time-out functionality in the Software that will cause it to automatically send warnings, limit functionality, and/or disable the Software from functioning if you exceed the applicable Authorized Processing Capacity and/or at the end of the license term for the Software (“Shut-Off Functionality”). You expressly agree not to tamper with or disable any such Shut-Off Functionality. You agree that DataTorrent will have no liability to you, whether arising from business interruption, loss of data caused or otherwise, caused by the Shut-Off Functionality.

2.3  Scope of Free License. You agree that if you use the Software beyond the scope of the Authorized Processing Capacity or for a period exceeding the license term for the Software, in addition to its other rights under this Agreement, DataTorrent will have the right to invoice you, and you will pay DataTorrent, for your use of the Software commencing the date you accepted this Agreement, and such fees will be based on DataTorrent’s then-applicable list prices for the commercial or production version of the Software. Such invoicing or payment of fees shall not extend the original license term or limit any other rights or remedies of DataTorrent under this Agreement.

3.  SUPPORT AND FEEDBACK. If you experience issues while using the Software or Documentation, or have any feedback or comments, please visit our website or let us know at support@datatorrent.com. All feedback, comments, and suggestions for improvements that you provide to DataTorrent hereunder are referred to collectively as “Your Feedback.” You hereby grant to DataTorrent a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, fully paid up, transferable, right and license, with full rights to grant sublicenses, to use, make, have made, offer for sale, sell, license, import, copy, create derivative works of, distribute, perform, transmit, and display Your Feedback for any and all purposes whatsoever, with no rights of accounting or disclosure to you. For the avoidance of doubt, DataTorrent has no obligation to provide maintenance, support or any other services to you for the Software or the Documentation under this Agreement.

4.  OWNERSHIP. You acknowledge and agree that DataTorrent owns all right, title, and interest in and to the Software (including any updates provided by DataTorrent to you) and Documentation, including all intellectual property rights therein, even if DataTorrent incorporates any of Your Feedback into subsequent versions of the Software or Documentation.

5.  WARRANTY DISCLAIMER. You acknowledge and agree that the Software and Documentation are being provided “AS IS.” DATATORRENT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. DATATORRENT DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE, THAT ANY USE OF OR ACCESS TO THE SOFTWARE WILL BE ERROR-FREE OR SECURE, THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.

6.  LIMITATION ON LIABILITY. IN NO EVENT WILL DATATORRENT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE OR DOCUMENTATION, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DATATORRENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. You expressly acknowledge that DataTorrent has entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between DataTorrent and you, and form a basis of the bargain between DataTorrent and you.

7.  TERM AND TERMINATION.

7.1  Term. The term of this Agreement (which the same as the term of the license for the Software) will be for a period of sixty (60) days commencing on the date of your acceptance of this Agreement, unless this Agreement is sooner terminated. DataTorrent may, in its sole discretion, provide you with an individual license key which provides and authorizes a term longer than sixty (60) days for a specific instance of the Software.

7.2  Termination. You may terminate this Agreement at any time by permanently destroying all copies of the Software and Documentation in your possession or control and ceasing all use of the Software and Documentation. DataTorrent may terminate this Agreement at any time upon notice to you. This Agreement shall terminate immediately, without the requirement of written notice to you, in the event that you breach the terms of this Agreement (including if you exceed the Authorized Processing Capacity for the Software or exceed the license term) or infringe or otherwise violate DataTorrent’s intellectual property rights.

7.3  Effect of Termination. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to you under this Agreement will automatically terminate and you will immediately cease all use of the Software and Documentation; and (b) within five (5) days after any such termination or expiration, you will, at your expense, permanently destroy and delete all copies of the Software, Documentation, and any other confidential information of DataTorrent in your possession or control; and (c) the provisions of Sections 1.5, 1.6, 2, 3, 4, 5, 6, 7.3, 7.4 and 8 will survive any termination or expiration of this Agreement.

8.  GENERAL PROVISIONS.

8.1  Assignment. You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of DataTorrent. Any attempted assignment without such consent will be null and of no effect. DataTorrent may assign this Agreement without your consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

8.2  Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California, USA, and the parties hereby consent to the personal jurisdiction and exclusive venue therein.

8.3  Severability; Waiver. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

8.4  Compliance with Law. You agree to comply fully with all applicable federal, state, local and foreign laws and regulations in your use of the Software and Documentation, including all applicable U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

8.5  Amendments.  This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

8.6  Indemnification. You agree to indemnify and hold DataTorrent and its officers, directors, shareholders and employees harmless from and against any loss, costs, liabilities and expenses (including reasonable attorneys’ fees) resulting from your breach of this Agreement, your use of the Software or Documentation, and any infringement by you of any third-party intellectual property or other right.

8.7  Right to Audit. You agree to keep and maintain complete and accurate books, records and accounts relating to your use of the Software under this Agreement. DataTorrent shall have the right, from time to time, to inspect and audit your books, records, servers and other equipment on which the Software is installed to verify your compliance with the terms and conditions of this Agreement. Any such audit be at DataTorrent’s expense; provided that if such audit reveals a material breach of this Agreement, including any use of the Software in excess of the applicable Authorized Processing Capacity or in excess of the license term, you will reimburse DataTorrent for its reasonable costs of such audit.

8.8  Contact Information. If you have any questions regarding this Agreement, you may contact DataTorrent at license@datatorrent.com