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Trial Evaluation and Developer License Agreement

TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION

This Trial Evaluation and Developer License Agreement ("Agreement") is a legal agreement between (1) the end user downloading or installing the software and the entity such end user represents ("Licensee") and (2) Ingres Corporation, with its principal place of business located at 500 Arguello St., Suite 200, Redwood City, CA 94063 ("Ingres"). The end user hereby represents that he or she is authorized to bind to this Agreement the entity that such end user represents. This Agreement governs the use of the Software (as defined below) and is effective upon the first date of installation or use of the Software ("Effective Date").

BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, LICENSEE IS AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN LICENSEE MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. IF LICENSEE IS ACTING ON BEHALF OF AN ENTITY, LICENSEE HEREBY REPRESENTS THAT LICENSEE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.

1. Definitions.

1.1 "Certified Ingres" means the object code of the enterprise Ingres 2006 software product including the Ingres 2006 database engine, and other Ingres software products, as may be updated by Ingres from time to time, that include certified and optimized object code provided by or created by Ingres. For avoidance of doubt, nothing in this Agreement grants Licensee’s Customers any license rights to Certified Ingres and Licensee understands that any such rights will only be provided by Ingres under a separate agreement between Ingres and Customer.

1.2 "Client Libraries" means the object code of Ingres/Net, which includes Ingres runtime libraries, connectivity drivers and Ingres Communications Server. The Client Libraries include certified and optimized object code.

1.3 "Customer" means an end user of a Developer Product.

1.4 "Developer Product" means a Licensee software application.

1.5 "EULA" means a written End User License Agreement between Licensee and Customers which governs each Customer’s right to use the Client Libraries and a Developer Product. Each EULA must contain terms and conditions that conform to the requirements and restrictions set forth in Section 4 below and must be accepted by each Customer.

1.6 "Ingres Website" means the website located at http://www.ingres.com.

1.7 "Software" means the object code for the version of the Ingres 2006 software product and other Ingres software products available for download on the Ingres Website (except software that may be downloaded from the Ingres Website pursuant to the General Public License, or GPL, which shall be governed by the GPL) downloaded by Licensee from the Ingres Website during the Trial Period (as defined in Section 12). The Software includes certified and optimized object code. For avoidance of doubt, nothing in this Agreement gives Licensee any rights to receive updates of the Software from Ingres.

2. Evaluation License Grant. Subject to the terms and conditions of this Agreement, Ingres hereby grants to Licensee an internal, royalty-free, non-exclusive, non-transferable and non-sublicensable license during the Trial Period to download (from the Ingres Website), install, execute and use the Software solely for non-production, internal testing and evaluation to determine whether Licensee wishes to use the Software on a commercial basis.

3. Developer License Grant. Subject to the terms and conditions of this Agreement, Ingres hereby grants to Licensee a royalty-free, world-wide, non-exclusive, non-sublicensable, non-transferable license to:

3.1 use the Client Libraries for testing and development purposes to connect Developer Products to Certified Ingres; and

3.2 directly or indirectly market, distribute, and sublicense (pursuant to a EULA) copies of the Client Libraries to Customers provided that such Customers are not charged for use of the Client Libraries.

4. Restrictions. Licensee shall not, and shall not allow any third party to:

4.1 cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Software;

4.2 modify or create derivative works of the Software;

4.3 remove, alter or obscure any proprietary notices which appear in the Software;

4.4 charge Customers for use of the Software;

4.5 use the Software for internal production purposes or disaster recovery;

4.6 distribute, sublicense or otherwise transfer the Software to any third party (except as expressly authorized under Section 3.2);

4.7 use the Client Libraries to connect Developer Products to any software application other than Certified Ingres; or

4.8 use any Ingres name, trademark or logo in the names of the Developer Product or in a way that suggests the Developer Product was sold by or endorsed by Ingres.

5. End User License Agreements. Each EULA must be consistent with the terms and conditions of this Agreement and include terms substantially similar to the following:

5.1 prohibit the Customer from performing any of the restricted actions set forth in Sections 4.1 through 4.3;

5.2 permit the Customer to only use the Client Libraries for connecting Developer Products to Certified Ingres;

5.3 indicate that all third party licensors and suppliers retain all right, title and interest in third party software and all copies thereof, including all copyright and other intellectual property rights;

5.4 permit the Customer to transfer the license granted by the EULA only if (a) Customer complies with any transfer terms imposed by Licensee and delivers all copies of the Client Libraries to the transferee along with the EULA, (b) transferee accepts the terms and conditions of the EULA as a condition to any transfer, and (c) Customer’s license to use the Client Libraries terminates upon transfer;

5.5 require the Customer to comply with all applicable export and import laws and regulations;

5.6 permit Licensee to audit the Customer’s use of the Client Libraries or to assign the rights to audit the Customer’s use of the Client Libraries to Ingres;

5.7 require the Customer to disclaim, to the extent permitted by applicable law, Ingres’s liability for any damages, whether direct, indirect, incidental, or consequential, arising from the use of the Client Libraries;

5.8 require Customer to immediately destroy all copies of the Client Libraries upon termination of the EULA;

5.9 include terms consistent with those contained in the following sections of this Agreement: Section 9 (No Support or Warranty), Section 10 (Limitation of Liability), Section 13.1 (Open Source) and Section 13.6 (Relationship of Parties); and

5.10 Ingres is expressly named as an intended third party beneficiary of the EULA, with the right to enforce the terms relating to the Client Libraries directly against the Customer.

6. Feedback. Licensee will provide Ingres with detailed feedback of Licensee’s use and evaluation of the Software during the term of this Agreement as reasonably requested by Ingres. Additionally, Licensee shall ensure that its employees working with the Software provide responses and information relating to the Software and its performance in connection with reasonable surveys or inquiries by Ingres from time to time. All such information or feedback provided by Licensee and its employees and agents (collectively, "Feedback") shall be Ingres’s property and deemed Ingres’s confidential and proprietary information.

7. Proprietary Rights. The intellectual property and proprietary rights of whatever nature in the Software and Feedback (including all copyright, trade secret, trademark, patent rights), including derivative works, are and shall remain the exclusive property of Ingres and its suppliers, if any. Except for the rights expressly granted by Ingres to Licensee under this Agreement, (i) Ingres and its suppliers, if any, reserve all right, title and interest in and to the Software and all intellectual property rights therein and (ii) no right, title, ownership interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Licensee under or in connection with this Agreement. Licensee acknowledges Ingres’s need to be able to freely use any Feedback, and accordingly, Licensee hereby assigns to Ingres Licensee’s entire right, title and interest (including, without limitation, all patent rights, copyrights and trade secrets) in the Feedback that Licensee produces under this Agreement. Without additional consideration, Licensee agrees to perform all acts reasonably necessary to perfect and enforce such rights.

8. Confidentiality. The Software is the confidential and proprietary information of Ingres. Licensee agrees to take adequate steps, with no less than a reasonable degree of care, to protect the Software from unauthorized disclosure or use. Licensee acknowledges that the Software contains valuable trade secrets and proprietary information of Ingres and that any actual or threatened disclosure or misapplication of such Software will constitute immediate and irreparable harm to Ingres for which monetary damages would be an inadequate remedy and for which Ingres will be entitled to seek injunctive relief. Licensee shall not, and shall not allow any third party to, use the Software except as expressly authorized under this Agreement.

9. No Support or Warranty. Licensee understands that the Software is provided solely for Licensee’s internal use and independent development purposes and Ingres will not provide support for the Software. INGRES IS PROVIDING THE SOFTWARE "AS IS" AND INGRES MAKES NO OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE OR ANY OTHER MATERIAL OR INFORMATION PROVIDED HEREUNDER. INGRES HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. INGRES DOES NOT WARRANT THAT ANY SOFTWARE WILL BE PROVIDED ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL LICENSEE’S REQUIREMENTS. TO THE EXTENT THAT INGRES CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.

10. Limitation of Liability. IN NO EVENT WILL INGRES BE LIABLE FOR: (I) ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA, LOST USE, OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY, EVEN IF INGRES HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SOFTWARE. INGRES’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED FIVE HUNDRED DOLLARS (US$500.00). THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN.

11. Indemnification. Licensee hereby agrees to indemnify Ingres against any and all damages, judgments, and costs (including reasonable attorneys’ fees) related to any claim based on: (a) Licensee’s distribution of the Client Libraries in breach of this Agreement and/or failure to include the required contractual provisions in a EULA as stated above; (b) an allegation that one or more of the Developer Products infringes the intellectual property rights of a third party; (c) the use of the Client Libraries in a manner prohibited under this Agreement, or in a manner for which the Client Libraries were not designed; or (d) bodily injury, property damage or any other damage or injury due to the use or inability to use a Developer Product.

12. Term and Termination. The term of this Agreement will begin on the Effective Date and will continue until terminated by either party under this Section; except that the rights granted under Section 2 (Evaluation License Grant) will terminate after sixty (60) days after the Effective Date (the "Trial Period"). Licensee hereby agrees that it may only license Software under Section 2 of this Agreement (Evaluation License Grant) for one (1) Trial Period (for instance, Licensee cannot license the Software under Section 2 for consecutive Trial Periods). Ingres may terminate this Agreement at any time if Licensee fails to comply with the terms and conditions of this Agreement. Licensee may terminate this Agreement by ending all use of the Software and destroying all copies of the Software in Licensee’s possession or control. Upon termination of this Agreement for any reason, all license rights granted in this Agreement will immediately terminate, and Licensee must promptly stop all use of the Software and must delete all copies of the Software. Termination of this Agreement for any reason will not terminate the rights of existing Customers who are subject to a EULA as of this Agreement’s termination date.

13. General.

13.1 Open Source. Licensee shall not utilize the Client Libraries in conjunction with any Public Software in a manner which would require the Client Libraries to be disclosed or distributed in source code form or made available at no charge. "Public Software" means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models.

13.2 Audit Rights. Licensee shall retain complete and accurate records regarding its use of the Software and distribution of the Client Libraries during the term of this Agreement, and for three (3) years following termination of this Agreement, including executed EULAs and records of Customer information such as name, address, date of distribution and identity of Client Libraries distributed. Ingres (or a third party auditor designated by Ingres and reasonably acceptable to Licensee) may audit Licensee’s facilities and records to ensure that Licensee’s use of the Software and distribution of the Client Libraries is in compliance with this Agreement.

13.3 Assignment. Licensee shall not assign or delegate its rights under this Agreement without the prior written consent of Ingres. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

13.4 Third Party Beneficiary. Licensee acknowledges and agrees that Ingres is a third party beneficiary of any EULA, but Ingres does not assume any of Licensee’s obligations thereunder. Licensee shall not enter into any EULA that excludes Ingres as a third party beneficiary and Licensee shall inform Customers of Ingres’s rights under this Section.

13.5 Export Control. Licensee will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Software is used and, in particular, Licensee shall not export or re-export the Software or Ingres confidential information without all required United States and foreign government licenses. Licensee acknowledges and understands that the Software may contain certain technology that may require an export license from the U.S. State Department and that export or re-export of Software to certain entities and certain countries may be prohibited. Licensee will defend, indemnify and hold harmless Ingres from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors or employees.

13.6 Relationship of Parties. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third party beneficiaries to this Agreement.

13.7 U.S. Government End Users. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein. Any technical data provided that is not covered by the above provisions shall be deemed "technical data-commercial items" pursuant to 48 C.F.R. 227.7015(a). Any use modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of 48 C.F.R. 227.7015(b).

13.8 Choice of Law and Venue. This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. Notwithstanding the foregoing, Ingres may enforce any judgment rendered by such court in any court of competent jurisdiction, and Ingres may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. In the event of any dispute in connection with this Agreement, the English language version of the Agreement will control for all purposes. Any action brought under this Agreement shall be conducted in the English language. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

13.9 Survival. Sections 7 (Proprietary Rights), 8 (Confidentiality), 9 (No Support or Warranty), 10 (Limitation of Liability), 11 (Indemnification), 12 (Term and Termination) and 13 (General) will survive the termination of this Agreement.

13.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties.

13.11 Severability; Waiver. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ AND UNDERSTOOD THIS AGREEMENT AND HEREBY AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON THE ACCEPT BUTTON WHEN INSTALLING THE SOFTWARE.

Export Control Laws

You acknowledge and agree that it is your responsible to comply with all applicable export and import control laws and regulations of the United States and foreign jurisdictions in which any elements of the Software is used or delivered, and, in particular, you will not import, export or re-export any elements of the Software without all required United States and foreign government licenses and will not import or export any elements of the Software if prohibited or against regulations or other laws.

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