End User License and Services Agreement

A. Agreement Definitions

“You” and “your” refers to the individual or entity that has executed this agreement (“agreement”) and ordered NapaDB programs and/or services from NapaDB (“NapaDB”) or an authorized distributor. The term “programs” refers to the software products owned or distributed by NapaDB that you have ordered, program documentation, and any program updates acquired through technical support. The term “services” refers to technical support, education, outsourcing, consulting or other services that you have ordered.

B. Applicability of Agreement

This agreement is valid for the order to which this agreement accompanies.

C. Rights Granted

Upon NapaDB’s acceptance of your order, you have the limited right to use the programs and receive any services you ordered solely for your internal business operations and subject to the terms of this agreement, including the definitions and rules set forth in the order and the program documentation. You may allow your agents and contractors to use the programs for this purpose and you are responsible for their compliance with this agreement in such use. Services are provided based on NapaDB's policies for the applicable services ordered, which are subject to change, and the specific policies applicable to you, and how to access them, will be specified on your order. Upon payment for services, you will have a non-exclusive, non-assignable license to use for your internal business operations anything developed by NapaDB and delivered to you under this agreement.

D. Ownership and Restrictions

NapaDB retains all ownership and intellectual property rights to the programs and anything developed by NapaDB and delivered to you under this agreement resulting from the services. You may not:

• remove or modify any program markings or any notice of NapaDB’s proprietary rights;

• make the programs or materials resulting from the services available in any manner

  to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the service you have acquired);

• cause or permit reverse engineering, disassembly or decompilation of the programs;

You must notify NapaDB of any program deficiency after delivery.

NapaDB DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT NapaDB WILL CORRECT ALL PROGRAM ERRORS. THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY, AND NapaDB’S ENTIRE LIABILITY, SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY, OR IF NapaDB CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END YOUR PROGRAM LICENSE AND RECOVER THE FEES PAID TO NapaDB FOR THE PROGRAM LICENSE ONLY FOR THE REMAINING LICENSE TIME DURATION AND ANY UNUSED, PREPAID TECHNICAL SUPPORT FEES YOU HAVE PAID FOR THE PROGRAM LICENSE;

F. Trial Programs

You may order trial programs, or NapaDB may include additional programs with your order which you may use for trial, non-production purposes only. You have 90 days from the delivery date to evaluate these programs. If you decide to use any of these programs after the 90 day trial period, you must obtain a license for such programs from NapaDB or an authorized distributor. If you decide not to obtain a license for any program after the 90 day trial period, you will cease using and will delete any such programs from your computer systems. Programs licensed for trial purposes are provided “as is” and NapaDB does not provide technical support or offer any warranties for these programs.

G. Indemnification

To the extent permitted by law, if you distribute NapaDB, include as a part of you products, or store third party data; you agree to indemnify and hold NapaDB and its officers, directors, employees, consultants, agents and subcontractors harmless against any and all losses, damages, liabilities, claims, demands, suits, or causes of action, including attorneys’ fees and expenses of defending against such claims demands, suits, or causes of action, resulting from third-party claims based on defects or non-performance of the Software.

To the best of our knowledge, NapaDB does not infringe on any third party patent or intellectual property. In case of any liability related to patent or intellectual property infringement by NapaDB, NapaDB indemnifies its clients.

H. Technical Support

For purposes of the ordering document, technical support consists of Software Updates, Product Support and/or other annual technical support services you may have ordered. If ordered, annual technical support (including first year and all subsequent years) is provided under NapaDB’s technical support policies in effect at the time the services are provided. If not enhanced, the basic technical support of duration not exceeding 3 weeks per year is included with all NapaDB License purchases. The technical support policies, incorporated in this agreement, are subject to change at NapaDB’s discretion; however, NapaDB will not materially reduce the level of services provided for supported programs during the period for which fees for technical support have been paid. You should review the policies prior to entering into the ordering document for the applicable services. Technical support is effective upon shipment, or if shipment is not required, upon the effective date of the ordering document.

I. End of Agreement

If either of us breaches a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, the other party may terminate this agreement. If NapaDB ends this agreement as specified in the preceding sentence or under the Indemnification section, you must pay within 30 days all amounts which have accrued prior to the end of this agreement, as well as all sums remaining unpaid for programs ordered and/or services received under this agreement plus related taxes and expenses. Except for nonpayment of fees, we each agree to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this agreement, you may not use those programs and/or services ordered.

J. Fees and Taxes

All fees payable to NapaDB are due within 30 days from the invoice date. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that NapaDB must pay based on the programs and/or services you ordered, except for taxes based on NapaDB’s income. Also, you will reimburse NapaDB for reasonable expenses related to providing the services.

K. Nondisclosure

By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). Confidential information shall be limited to the terms and pricing under this agreement, and all information clearly identified as confidential. A party’s confidential information shall not include information that:

(a) is or becomes a part of the public domain through no act or omission of the other party;

(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;

(c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or

(d) is independently developed by the other party.

We each agree to hold each other’s confidential information in confidence Also, we each agree to disclose confidential information only to those employees or agents who are required to access it in furtherance of this agreement and who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this agreement or orders submitted under this agreement in any legal proceeding arising from or in connection with this agreement.

L. Entire Agreement

You agree that this agreement and the information which is incorporated into this

agreement by written reference (including reference to information contained in a URL or

referenced policy), together with the applicable order, are the complete agreement for

the programs and/or services ordered by you, and that this agreement supersedes all

prior or contemporaneous agreements or representations, written or oral, regarding

such programs and/or services. If any term of this agreement is found to be invalid or

unenforceable, the remaining provisions will remain effective. This agreement and ordering documents may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of you and of NapaDB. Any notice required under this agreement shall be provided to the other party in writing.

M. Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. NapaDB’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR OTHERWISE, SHALL BE LIMITED TO THE FEES YOU PAID NapaDB FOR THE DEFICIENT PROGRAM OR SERVICES UNDER THIS AGREEMENT AS SPECIFIED IN YOUR ORDER. IN NO EVENT SHALL NapaDB’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID UNDER YOUR ORDER.

N. Other

This agreement is governed by the substantive and procedural laws of California, Santa Clara County without reference to its conflictof laws principles and you and NapaDB agree to submit to the exclusive jurisdiction of, and venue in, the courts in California in any dispute arising out of or relating to this agreement. If you have a dispute with NapaDB or if you wish to provide a notice under the Indemnification section of this agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: NapaDB, 7579 Barnhart Place, Cupertino, CA 95014, USA, Attention: Director of Legal Affairs, Legal Department. You may not assign this agreement or give or transfer the programs and/or any services or an interest in them to another individual or entity. Except for actions for nonpayment or breach of NapaDB’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued. Upon 45 days written notice, NapaDB may audit your use of the programs. You agree to cooperate with NapaDB’s audit and provide reasonable assistance and access to information. You agree to pay within 30 days of written notification any fees applicable to your use of the programs in excess of your license rights. If you do not pay, NapaDB can end your technical support, licenses and/or this agreement. You agree that NapaDB shall not be responsible for any of your costs incurred in cooperating with the audit.

P. Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for services provided.