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Binary Code License Agreement

READ THIS AGREEMENT CAREFULLY.

BY INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE OR OTHERWISE INDICATING YOUR ASSENT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE THE SOFTWARE.

IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSE GRANTED UNDER THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

This Binary Code License Agreement (“Agreement”) is between Collibra NV, on behalf of itself and its affiliates (“Collibra”) and the licensee (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use (“you” or “Licensee”). “Software” means the binary code version of the software which accompanies this license and any related supporting technical documentation provided therewith.

1. License.
1.1. Grant of License. Subject to all of the terms and conditions of this Agreement, Collibra grants Licensee a non-transferable, non-sublicensable (except as expressly authorized herein), non-exclusive license to use the Software for Licensee’s internal purposes.

1.2. Restrictions. As a condition of this license, Licensee will not (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions and then only upon notice to Collibra); (b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Software; (d) modify or create a derivative work of any part of the Software or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Collibra or (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

1.3. Open Source Code. The Software may contain or be provided with components subject to the terms and conditions of third-party “open source” software licenses (“Open Source Software”). To the extent required by any license that accompanies any Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

2. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Collibra and its suppliers have and will retain all right, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes that incorporate any of Licensee’s Feedback). Licensee acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder, no ownership rights are being conveyed to Licensee under this Agreement or otherwise. If Licensee elects to provide any suggestions, comments, improvements, ideas or other feedback to Collibra related to the Software (collectively, “Feedback”), Licensee agrees that Collibra will be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as Collibra sees fit, entirely without obligation or restriction of any kind. All rights not granted by Collibra are reserved.

3. Term of Agreement.
3.1. Term. This Agreement is effective until terminated (the “Term”). Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

3.2. Termination. Upon any expiration or termination of this Agreement, Licensee shall cease all use of and destroy all copies of the Software in its possession and, if requested, so certify to Collibra in writing.

3.3. Survival. Sections 1.2 (Restrictions), 2 (Ownership), 3 (Term of Agreement), 4 (Disclaimer of Warranties), 5 (No Support or Maintenance), 6 (Limitation of Remedies and Damages), 7 (Export Compliance) and 8 (General) shall survive any termination or expiration of this Agreement.

4. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED “AS IS”. NEITHER COLLIBRA NOR ITS SUPPLIERS MAKES ANY WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

5. Support and Maintenance. Collibra may, but has no obligation to, provide support, updates, bug fixes, maintenance releases or new versions of the Software under this Agreement.

6. Limitation of Remedies and Damages.
6.1. Consequential Damages Waiver. COLLIBRA (AND ITS SUPPLIERS) SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

6.2. Liability Cap. COLLIBRA’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE ONE HUNDRED DOLLARS (US $100).

6.3. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 6 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

7. Export Compliance. Licensee acknowledges that the Software may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall not, and shall not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.

8. General.
8.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Licensee may not assign this Agreement without the prior written consent of Collibra and any attempt to do so will be void. Collibra may assign this Agreement upon written notice to Licensee. All rights, benefits and protections granted to Collibra pursuant to this Agreement extend to its affiliates.

8.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

8.3. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of New York and the United States, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for actions related to the subject matter hereof are the New York state and United States federal courts located in New York, New York, and both parties hereby submit to the personal jurisdiction of such courts.

8.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

8.5. Notices and Reports. Any notice or report hereunder shall be in writing. If to Collibra, such notice or report shall be sent to Collibra at legal@collibra.com to the attention of “General Counsel”. If to Licensee, such notice or report shall be sent to the email or address provided by Licensee or as otherwise discoverable by Collibra. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested) or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.

8.6. Amendments; Waivers. No supplement, modification or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

8.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

8.8. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

8.9. Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.