EVALUATION AGREEMENT TERMS & CONDITIONS (Available online at blazingdb.com/alpha.pdf) IMPORTANT: PLEASE READ THIS EVALUATION AGREEMENT ("AGREEMENT?") BEFORE CLICKING THE "ACCEPT" BUTTON, INSTALLING, CONFIGURING AND/OR USING THE BLAZING SOFTWARE PRODUCT THAT ACCOMPANIES OR IS PROVIDED IN CONNECTION WITH THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON, INSTALLING, CONFIGURING AND/OR USING THE PRODUCT IN ANY WAY, YOU AND THE ENTITY THAT YOU REPRESENT ("EVALUATOR?") IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT WITH BLAZING AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF EVALUATOR DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USE OF THE PRODUCT IS STRICTLY PROHIBITED. IF EVALUATOR HAS EXECUTED, OR SUBSEQUENTLY EXECUTES, AN EVALUATION AGREEMENT OR AN END USER AGREEMENT WITH BLAZING, THEN THE TERMS AND CONDITIONS OF SUCH EXECUTED EVALUATION AGREEMENT OR END USER AGREEMENT, AS APPLICABLE, SHALL GOVERN AND CONTROL YOUR USE OF THE PRODUCT. 1. EVALUATION LICENSE; TERM. This "Agreement" governs Evaluators use of the Blazing's product and its associated software and documentation (the "Product?"). Subject to the terms of this Agreement, Blazing hereby provides Evaluator, during the Term, a nonexclusive, nontransferable, nonassignable, nonsublicensable right and license to install and run a single copy of the Product on one (1) computer owned or controlled by Evaluator solely for the purpose of internally evaluating the performance and functionality of the Product. Evaluator agrees to use and evaluate the Product and report on its operations to Blazing, for the period of time specified by Blazing in writing, or if no such period is specified then for sixty (60) days after the date Evaluator accepts this Agreement (as described in the premable above) (the "Term?"). 2. FEEDBACK?. During the Term, Evaluator agrees to provide to Blazing feedback regarding the use, operation, performance, and functionality of the Product ("Feedback?"). Such Feedback will include information about operating results, performance, known or suspected bugs, errors or compatibility problems and userdesired features. Evaluator hereby grants to Blazing a perpetual, irrevocable, worldwide, sublicenseable, and royaltyfree right to use and otherwise exploit the Feedback in any manner. Blazing shall not disclose Evaluator's name or the name of any Evaluator employee to a third party in connection with any Feedback. 3. PRODUCT USE?. Evaluator agrees that it will not (i) reproduce, modify, distribute, transfer, rent, lease, disclose, or make available to any third party any portion of the Product (or any related software or documentation) in any form; (ii) publish, translate, sublicense or assign, in whole or in part, any software embedded therein; (iii) reverse engineer, decompile, or disassemble any portion of the Product, or otherwise attempt to decrypt, extract or derive the source code for the software (or any parts thereof) embedded therein; (iv) access the Product in order to build a similar or competitive product or service; or (v) publish or disclose to any third party any performance or benchmark tests or analyses or other nonpublic information relating to the Product or the use thereof. The software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Evaluator shall not remove any copyright or other proprietary notices from the Product or its software. 4. THIRD PARTY CODE. Certain items of software code provided with the Product are subject to "open source" or "free software" licenses ("Third Party Code?"). Such Third Party Code is opaquely embedded within the Product hardware and is not directly accessible by, nor does it interface directly with, Evaluator's software or products, thereby avoiding any open source licensing contamination of Evaluator's intellectual property. The Third Party Code is not subject to the terms and conditions of this Agreement, except for Sections 5, 9, 10 and 11 of this Agreement. Instead, each item of Third Party Code is licensed under the terms of the license that accompanies such Third Party Code. Nothing in this document limits Evaluator's rights under, or grants Evaluator rights that supersede, the terms and conditions of any applicable license for the Third Party Code, including any rights to copy, modify, or distribute Third Party Code under the applicable license. If required by an applicable license, source code for such software will be made available by Blazing or its supplier upon written request. 5. TITLE. Blazing and its suppliers shall retain all right, title and interest in the Product and in all intellectual property rights therein, including without limitation all patent, trademark, trade name and copyright, whether registered or not registered. No license or other express or implied rights of any kind are granted or conveyed except for the limited internal license expressly provided above. The Product shall remain Blazing's sole and exclusive personal property. Evaluator shall not offer, loan, transfer, encumber, sell or otherwise dispose of the Product to any third party without having received prior written authorization from Blazing. 6. TERMINATION. ?(a) This Agreement will expire at the end of the Term, unless terminated earlier. Either party may terminate this Agreement upon notice to the other party. In addition, this Agreement will terminate immediately upon any breach by Evaluator 1 957594 v9/HN in which event Evaluator shall return the Product in accordance with Section 8. (b) Upon any such expiration or termination, Sections 3, 4, 5, 6, 7(b), and 8 through 14 will survive. 7. RETURN OF PRODUCT. At the end of the Term or upon earlier termination, if Evaluator elects not to purchase the Product, then Evaluator shall (a) ensure that all of Evaluator's confidential or proprietary information is deleted from the Product; (b) promptly contact Blazing regarding the return of the Product to include obtaining an RMA number, packaging instructions and shipping address; and (c) promptly return the Product to Blazing in accordance with Blazing instructions. Products returned to Blazing shall be in good condition, normal wear and tear excepted. Evaluator shall pay any amounts charged by Blazing for any damage to the Product (other than normal wear and tear) while in Evaluator's possession or resulting from improper handling or the use of unapproved packaging. 8. EXCLUDED USES. Evaluator acknowledges that the Product is not designed or intended for use in life support, life sustaining, nuclear or other applications in which failure of such Products or Services could reasonably be expected to result in personal injury, loss of life or catastrophic property damage (the "Excluded Uses"?) and Evaluator agrees to indemnify and hold Blazing and its suppliers harmless from and against any claims, losses and damages to the extent arising from such Excluded Uses. 9. DISCLAIMER OF WARRANTIES?. Blazing is providing the Product on an "AS IS" basis for use by Evaluator at its own risk. BLAZING AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 10. LIMITATION OF LIABILITY?. EVALUATOR AGREES THAT BLAZING AND ITS SUPPLIERS SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO EVALUATOR, ITS CUSTOMERS, OR THIRD PARTIES CAUSED BY FAILURE OF BLAZING TO DELIVER THE PRODUCT OR FAILURE OF THE PRODUCT TO FUNCTION. EVALUATOR SHALL NOT PLACE PRODUCTION DATA ON THE PRODUCT AND BLAZING WILL HAVE NO LIABILITY FOR ANY LOSS OF PRODUCTION DATA. IN NO EVENT WILL BLAZING BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PRODUCT OR OTHER MATERIALS PROVIDED ALONG WITH THE PRODUCT OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF BLAZING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLAZING AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT OF $100.00 US DOLLARS. EVALUATOR AGREES THAT BLAZING SUPPLIERS WILL HAVE NO LIABILITY TO EVALUATOR OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. 11. CONFIDENTIALITY?. ?"Confidential Information?" means any Blazing information, whether disclosed orally or in written or magnetic media, that is identified as "confidential" or with a similar legend at the time of such disclosure, or that Evaluator knows or should have known is the confidential or proprietary information of Blazing. Evaluator shall not use or disclose any Confidential Information except as expressly authorized by this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business world exercise under similar circumstances. All Product related technical information, evaluation or reports supplied to or prepared by Evaluator are Confidential Information. Except as provided herein, Evaluator agrees not to permit any third party access to any materials generated by Blazing or Evaluator regarding the Product without Blazing advance written approval. 12. PRODUCT DIAGNOSTIC REPORTING?. Evaluator acknowledges that the Product will store certain diagnostic information about the routine operations of the Product (including, without limitation, its performance, data reduction ratios, configuration data, and any hardware faults) and will periodically transmit this diagnostic information to Blazing. Evaluator agrees that Blazing has a perpetual, irrevocable, worldwide, sublicenseable, and royaltyfree right to use this diagnostic information in any manner and that Evaluator will not interfere with the collection or transmission of such information to Blazing. For clarification, there is no actual user data of Evaluator that is transmitted or provided to Blazing. 13. GENERAL PROVISIONS. Governing Law and Venue. This Agreement will be governed and interpreted by and under the laws of the State of Texas, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts in Austin, Texas for any lawsuit filed there arising from or related to this Agreement. 2 957594 v9/HN Severability?. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. No Assignment?. This Agreement, and Evaluator's rights and obligations herein, may not be assigned, delegated, or transferred by Evaluator without Blazing prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Notices?. All notices or other communications required under Sections 5, 7, 11 and 14 of this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight deliver such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. All other notices and communications may be made by email or other applicable method. Waiver?. 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. Export. The Product, its Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Evaluator agrees not to export, reexport, or transfer, directly or indirectly, the Product or any U.S. technical data acquired from Blazing in violation of the United States export laws or regulations. U.S. Government End Users?. The Product, its software and related documentation, are "commercial items" as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable. Entire Agreement; Modification?. This Agreement constitutes the entire agreement between the Evaluator and Blazing and supersedes in their entirety any and all oral or written agreements previously existing between Evaluator and Blazing with respect to the subject matter hereof. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.