Denodo Platform for Azure Subscription Agreement

(Version dated 2017 May 1)

PLEASE READ THE TERMS OF THIS DENODO SUBSCRIPTION AGREEMENT GOVERNING THE USE OF THE SOFTWARE AND RELATED DOCUMENTATION CAREFULLY BEFORE ACCESSING AND USING THE SOFTWARE.

Denodo may revise these terms from time to time. The most current version of these terms will always be at http://www.denodo.com/en/denodo-platform/denodo-platform-for-azure/license-agreement and will govern Denodo relationship with you. We will try to notify you of material revisions. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised terms.

YOU ACKNOWLEDGE THAT THE SOFTWARE YOU ARE INSTALLING OR USING FROM DENODO IS SUBJECT TO THE RESTRICTIONS AND CONTROLS IMPOSED BY UNITED STATES EXPORT REGULATIONS AND ANY OTHER RELEVANT LOCAL EXPORT EXPORT LAWS AND REGULATIONS.

YOU CERTIFY THAT:

• YOU DO NOT INTEND TO USE THE SOFTWARE FOR ANY PURPOSE PROHIBITED BY UNITED STATES EXPORT REGULATIONS OR OTHER RELEVANT LOCAL REGULATIONS, INCLUDING, WITHOUT LIMITATION, TERRORISM, CYBER-ATTACKS, CYBER-CRIMES, MONEY-LAUNDERING, INDUSTRIAL ESPIONAGE, OR NUCLEAR, CHEMICAL OR BIOLOGICAL WEAPONS PROLIFERATION.
• YOU ARE NOT LISTED AS A DENIED PARTY ON ANY LIST GOVERNING UNITED STATES EXPORTS AND YOU WILL NOT MAKE AVAILABLE THE SOFTWARE DIRECTLY OR INDIRECTLY TO PERSONS OR ENTITIES ON THE MENTIONES LISTS.
• YOU ARE NOT A NATIONAL OF ANY COUNTRY THAT IS NOT APPROVED FOR EXPORT OF THE SOFTWARE AND YOU WILL NOT MAKE AVAILABLE THE SOFTWARE DIRECTLY OR INDIRECTLY TO THOSE COUNTRIES.

This Denodo Subscription Agreement ("Agreement") is between Denodo and the customer (individual or entity) that has purchased a subscription to the Software through Microsoft Azure Marketplace ("Customer" or "you" or "your"). If you are an individual using the Software on behalf of a corporation, partnership or other entity, then that entity will be the Customer, and YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. The "Effective Date" of this Agreement is the initial date Denodo makes the Software available to you.

In connection with this Agreement, a Customer must select the Software on the Ordering Page as well as the parameters and subscription level of such Software. The Ordering Page specifies the Subscription Fees payable by Customer for such selected Software.

BEFORE YOU CLICK ON "I ACCEPT" OR TAKE OTHER ACTIONS INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS THE SOFTWARE.

1. Definitions.

1.1 "Denodo" means Denodo Technologies, Inc.

1.2 "Azure" means the Microsoft Azure Services, the cloud computing platform hosting service provided by Microsoft to you pursuant to a separate agreement between Microsoft and you.

1.3 "Documentation" means any user instructions, manuals, support descriptions or other materials, and online help files made available by Denodo.

1.4 "Maintenance and Support" means the Denodo Platform for Azure support services described in Section 4.

1.5 "Ordering Page" means the online sign up or order process webpage and/or portal provided by Azure and/or Denodo through which Customer may select the Software and the applicable subscription level and usage parameters they wish to order.

1.6 "Software" means any Denodo branded product that (a) you obtain from Denodo listings in the Microsoft Azure Marketplace through the Ordering Page, (b) you upload to your Microsoft Azure account pursuant to permission granted by Denodo in a separate written agreement, and (c) you download to your physical site and use on your physical site in conjunction with Software pursuant to permission granted by Denodo in this Agreement or a separate written agreement.

1.7 "Subscription Fees" means the fees set out on the Ordering Page.

2. License to the Software

2.1 License Grant. Subject to the terms and conditions of this Agreement, Denodo hereby grants to Customer a non-exclusive, non-transferable, worldwide right during the applicable Subscription Term to access and use the Software solely for the Azure Virtual Machine for which Customer has purchased the subscription to the Software. Customer acknowledges that Denodo will retain ownership of all intellectual property rights in or to the Software and Documentation. Except for the license rights explicitly granted in this Section 2.1, all other rights to the Software and Documentation are hereby reserved by Denodo.

2.2 Permitted Parameters. The Ordering Page enables you to select certain usage categories and volume based restrictions regarding your use of the Software. Use of and access to the Software is permitted only in accordance with the usage categories and volume based restrictions set forth on the Ordering Page.

2.3 General Restrictions. Customer shall not: (a) rent, lease, copy, sell, provide access to or sublicense the Software to a third party; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to Denodo); (c) modify the Software or any Documentation, or create any derivative product from any of the foregoing; (d) remove or obscure any product identification, proprietary, copyright or other notices contained in the Software (including any reports or data printed via the use of the Software); (e) incorporate the Software into any other offering (whether software as a service or otherwise); (f) use the Software to develop a product which is competitive with any Denodo product offering; (g) publicly disseminate information or analysis regarding the performance of the Software; (h) use the Software other than for Customer's internal business purposes; or (i) use the Software in violation of any restrictions on the Ordering Page.

3. Subscription Fees

3.1 Subscription Term. The "Subscription Term" shall be specified on the Ordering Page. If Customer's subscription is not renewed, Customer's access to the Software will terminate at the end of the then-current Subscription Term. Renewals will be addressed in the same manner as renewals for the applicable Azure Virtual Machine.

3.2 Payment. All Subscription Fees are as set forth on the Ordering Page and shall be paid in the manner specified on such Ordering Page.

4. Maintenance and Support

4.2 Denodo Platform for Azure Maintenance and Support Services. Maintenance and Support means that Denodo will provide assistance in accordance with Denodo's then-current support policies and solely with respect to the Software (and not to any other software, application, or service provided by or obtained via Azure), including (i) clarification of functions and features of the Software; (ii) clarification of Documentation pertaining to the Software; (iii) error verification, analysis and correction; and (iv) updates, if any are applicable, to the Software and Documentation. Customer will use commercially reasonable efforts to resolve issues before escalating them to Denodo. Denodo will make a commercially reasonable effort to provide Maintenance and Support Services.

4.3 Primary Technical Contact. Customer will designate a named primary technical contact with the appropriate functional knowledge and skills during the Subscription Term to access the Maintenance and Support Services (a "Primary Technical Contact").

4.4 Sign Up for Maintenance and Support Services. Customer must register the Primary Technical Contact and its Azure subscription ID to confirm eligibility for Maintenance and Support Services. Once such eligibility has been confirmed, the Primary Technical Contact will get access to the Support Site where the Primary Technical Contact may access web-based support, Documentation, articles, applicable updates and a moderated forum, among other information and services.

5. Limited Warranty and Limitation of Liability

5.1 Limited Warranty. Denodo warrants, for Customer's benefit only, that the Software will operate in substantial conformity with the applicable Documentation. Denodo does not warrant that Customer's use of or the performance of the Software will be accurate, uninterrupted or error-free. Denodo's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty shall be, in Denodo's sole discretion and at no charge to Customer, to use commercially reasonable efforts to correct the reported nonconformity.

5.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.1, THE SOFTWARE IS PROVIDED "AS IS". NEITHER DENODO NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, ANY STATUTORILY REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN. DENODO SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DENODO INCLUDING WITHOUT LIMITATION ANY FAILURE IN AZURE OR OF THE CUSTOMER'S MICROSOFT MACHINE IMAGE.

5.3 Limitation of Liability. IN NO EVENT WILL DENODO BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, DOCUMENTATION AND OTHER MATERIALS PROVIDED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF DENODO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DENODO'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO DENODO UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. The provisions of this Section 5 allocate risks under this Agreement between Customer and Denodo. Denodo's pricing of the Software and Documentation reflects this allocation of risks and limitation of liability.

6. Handling of Claims

7. Confidential Information

7.1 Confidential Information. Customer agrees that the Software, performance information relating to the Software, all code, inventions, know-how, business, technical product, and financial information it obtains from Denodo constitutes the confidential property of Denodo ("Confidential Information").

7.2 Non-Use and Non-Disclosure. Customer agrees not to use any Confidential Information for any purpose except to exercise its rights and perform its obligations under this Agreement. Customer agrees not to disclose any Confidential Information to third parties or to Receiving Party's employees, except to those third parties or employees of Customer with a need to know. Customer agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Customer's nondisclosure obligation shall not apply to information which the Customer can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of Customer; (iii) is rightfully obtained by the Customer from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Customer who had no access to such information. Customer may also disclose Confidential Information if so required pursuant to a regulation, law or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to Denodo.

7.3 Injunctive Relief. Customer acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Customer, Denodo shall be entitled to seek appropriate equitable relief, without bond and without the necessity of showing actual money damages, in addition to whatever other remedies it might have at law.

8. Term and Termination

8.1 Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of the last Subscription Term.

8.2 Termination for Cause. Denodo may terminate this Agreement if Customer (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (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 Customer (and not dismissed within sixty (60) days thereafter).

8.3 Cancellation. Customer may cancel a Subscription Term at any time through the Ordering Page. Except as explicitly as set forth in Section 6 (Handling of Claims), all Subscription Fees are non-refundable.

8.4 Termination Events. Upon any termination or expiration of this Agreement, Customer's right to access the service shall terminate and Customer shall immediately cease any and all use of and access to the Software and destroy any Denodo Confidential Information in its possession.

8.5 Survival. Sections 1, 5, 6, 7, 8.4, 8.5, and 9 shall survive any expiration or termination of this Agreement.

9. Miscellaneous

9.1 Independent Contractor. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to act as an agent or direct or control the day-to-day activities of the other.

9.2 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Denodo. Denodo may assign this Agreement at any time without notice to Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

9.3 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. Any dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in Santa Clara, California, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, by a single arbitrator to be appointed pursuant to such rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

9.4 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to Denodo Technologies Inc., 530 Lytton Avenue, Suite 301, Palo Alto, California, 94301, United States. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

9.5 Publicity. Customer acknowledges that Denodo may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Denodo, and Customer agrees that Denodo may use its name in such a manner, subject to Customer's prior consent.

9.6 Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought Customer more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.

9.7 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.

9.8 Waiver. The waiver by either party of any breach of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

9.9 Severability. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.

9.10 Integration and Entire Agreement. This Agreement is the entire agreement of the parties and supersedes any prior agreements between the parties with respect to the subject matter hereof.

9.11 Questions. Should you have any questions concerning this Agreement, or if you desire to contact Licensor for any reason, please contact legal@denodo.com.