Terms of Use Agreement

This Agreement was last revised on April 2008.

Welcome to vertica.com, the website and online service of Vertica Systems, Inc. ("Vertica" "we," or "us"). This page explains the terms by which you may use our service. By accessing or using the Vertica services, website and software provided through or in connection with the service ("Service"), you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement ("Agreement") and our current Privacy Policy, which is incorporated here by reference, whether or not you are a registered user of our Service.

We reserve the right to amend this Agreement at any time and without notice. If we do this, we will post the amended Agreement on this page and indicate at the top of the page the date the Agreement was last revised. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.

Use of Our Service

Vertica grants you (the "User") permission to use the Service as set forth in this Agreement, provided that: (i) you will not copy, distribute, or disclose any part of the Service in any medium; (ii) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose; and (iii) you will otherwise comply with the terms and conditions of this Agreement and Vertica's Privacy Policy.

You do not have to register in order to visit our website. To access certain features of the Service, though, including our user support area, in-depth library, and software downloads, you will need to register with Vertica and create an account. You may never use another User's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Vertica immediately of any breach of security or unauthorized use of your account. Although Vertica will not be liable for your losses caused by any unauthorized use of your account, you shall be liable for the losses of Vertica or others due to such unauthorized use.

By providing Vertica your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, including changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out by sending an email message to info@vertica.com with the words "No email" in the subject field or by sending mail to the following postal address:

Vertica Systems, Inc.
Three Dundee Park, Suite 102
Andover, MA 01810
Attention: Customer Support Department

Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. You may not opt out of Service-related e-mails.

You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Service in a manner that sends more request messages to the Vertica servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Service nor to use the communication systems provided by the Service for any commercial solicitation purposes.

Vertica may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in Vertica's sole determination, you violate any of the Agreement, including the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Service; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Service; or, (vi) bypassing the measures we may use to prevent or restrict access to the Service. Upon termination for any reason, you continue to be bound by this Agreement.

Products

All Vertica products ordered or obtained through the Service are subject to the prices, terms, and conditions set forth in the Order Form and end user license agreement provided to you at the time of the transaction.

User Postings and Software Downloads

Some areas of the Service may allow you to post questions, feedback,software, scripts, interfaces and other information ("User Content"). You agree not to upload, publish, display, or otherwise make available (hereinafter, "post") User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. Vertica reserves the right, but is not obligated, to reject and/or remove any User Content that Vertica believes, in its sole discretion, violates these provisions.

For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

Vertica takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. Vertica is not responsible for any public display or misuse of your User Content.All User Content you submit will be subject to the license contained in the “License Grant” section below.

If you download, access or otherwise use any User Content, you understand and agree that Vertica does not monitor, review, test or evaluate any User Content and that your use of any User Content is entirely at your own risk. You understand and acknowledge that you may be exposed to User Content that contains errors and inaccuracies and is offensive, indecent, or objectionable, and you agree that Vertica shall not be liable for any damages you allege to incur as a result of such User Content.

You are solely responsible for your interactions with other Vertica Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users.

License Grant

By posting any User Content, you expressly grant, and you represent and warrant that you have a right to grant, to Vertica and any user of the Service a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed for use in connection with the Service.

Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, personal license to use the Service. Vertica reserves all rights not expressly granted herein in the Service and the Vertica Content (as defined below). Vertica may terminate this license at any time for any reason or no reason.

Our Proprietary Rights

The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (the "Vertica Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Vertica and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Vertica Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.

Eligibility

This Service is intended solely for Users who are eighteen (18) years of age or older, and any registration, use or access to the Service by anyone under 18 is unauthorized, unlicensed, and in violation of this Agreement. Vertica may terminate your account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service) for any reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 18.

Privacy

We care about the privacy of our Users. Click here to view our Privacy Policy. By using the Service, you are consenting to have your personal data transferred to and processed in the United States.

DMCA Notice

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Vertica's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 ("DMCA"). For your complaint to be valid under the DMCA, you must provide the following information in writing:

1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Vertica to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following:
Attn: Legal Depatment
Regarding: DMCA Notice
Company: Vertica Systems, Inc.
Address: Three Dundee Park Drive, Suite 102
Andover, MA 01810
Telephone: 1(978) 533.3500
Fax: 1(978) 533.3600
Email: copyright@vertica.com

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.

Please note that this procedure is exclusively for notifying Vertica and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Vertica's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Vertica has adopted a policy of terminating, in appropriate circumstances and at Vertica's sole discretion, members who are deemed to be repeat infringers. Vertica may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Additional Representations and Warranties

You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:

a. You are at least 18 years of age.

b. You have the written consent of each and every identifiable natural person in the User Content to use such person's name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.

c. Your User Content and Vertica's and any user’s use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.

Third-Party Websites or Services

Vertica may contain links to third-party websites or services that are not owned or controlled by Vertica. Vertica has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. If you access a third party website from Vertica, you do so at your own risk, and you understand that this Agreement and Vertica's Privacy Policy do not apply to your use of such sites. You expressly relieve Vertica from any and all liability arising from your use of any third-party website or services or third party owned content.

We encourage you to be aware of when you leave the Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.

Indemnity

You agree to defend, indemnify and hold harmless Vertica and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any data or work transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that are submitted via your account; or (vi) any other party's access and use of the Service with your unique username, password or other appropriate security code.

No Warranty

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, VERTICA, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

VERTICA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE VERTICA SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND VERTICA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VERTICA, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL VERTICA BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VERTICA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL VERTICA, ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO VERTICA HEREUNDER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF VERTICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Service is controlled from its facilities in the United States. Vertica makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Vertica without restriction.

General

A. Governing Law. You agree that: (i) the Service shall be deemed solely based in Massachusetts; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Vertica, either specific or general, in jurisdictions other than Massachusetts. This Agreement shall be governed by the internal substantive laws of the Commonwealth of Massachusetts, without respect to its conflict of laws principles. Any claim or dispute between you and Vertica that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Essex County, Massachusetts.

B. Entire Agreement/Severability. This Agreement, together with Vertica's Privacy Policy and any other legal notices and agreements published by Vertica via the Service, shall constitute the entire agreement between you and Vertica concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

C. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Vertica's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

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Vertica Script

End User License Agreement

BY USING THE VERTICA SCRIPT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”), AND THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF YOURSELF AND YOUR EMPLOYER, IF YOUR USE OF THE VERTICA SCRIPT AND RELATED DOCUMENTATION ACCOMPANYING THIS AGREEMENT IS WITHIN THE SCOPE OF YOUR EMPLOYMENT, IN WHICH CASE “YOU” OR “YOUR” REFER TO BOTH YOU AND THAT EMPLOYER. YOUR USE OF THE VERTICA SCRIPT IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE VERTICA SCRIPT.

1. About This Agreement.. This Agreement applies to all Software and Documentation made available by Vertica, Inc. (“Vertica”) to you.  “Software” means the VERTICA Script in object code format.  The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available to you.  "Documentation" means any documentation, on-line read me, help files, or other related explanatory materials that accompany the Software.

2. License.. The Software and Documentation are licensed, not sold, to you by Vertica.  Subject to the terms and conditions of this Agreement, you are hereby granted a limited, non-exclusive, non-sublicensable and nontransferable right to run the Software in conjunction with the Vertica Enterprise Database Software. You agree to use your best efforts to prevent and protect the contents of the Software and Documentation from unauthorized disclosure or use.  Vertica and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to you.  There are no implied licenses granted by Vertica under this Agreement. Except as specified above, you shall have no rights to the Software.

3. Use.

3.1 Limitation on Use. You may not use the Software or Documentation except as permitted in this Agreement.  Except with Vertica’s prior written consent, you may not: (i) alter, modify or create any derivative works of the Software, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; (ii) port, decompile, reverse assemble, reverse engineer, or otherwise attempt to separate any of the components of the Software or derive the source code for the Software or the underlying ideas, algorithms, structure, or organization (except to the extent applicable laws specifically prohibit such restriction); (iii) copy, redistribute, encumber, sell, rent, lease, sublicense, act as a service bureau by providing services to third parties based upon use of the Software, offer for timesharing any Software, or otherwise transfer rights to the Software or Documentation; or (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Documentation.  You may not release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of Vertica for each such release.  You may not cause or permit any third party to do any of the foregoing.

4. Proprietary Rights. You acknowledge and agree that the Software belongs to Vertica or its licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property.  Vertica and its licensors retain all right, title and interest in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist.  This license is not a sale of the original or any subsequent copy.  The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties.  All trademarks used in connection with the Software and Documentation are owned by Vertica, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder.  All suggestions or feedback provided by you to Vertica with respect to the Software shall be Vertica’s property and deemed Confidential Information of Vertica.

5. No Support. This Agreement does not entitle you to receive from Vertica or its licensors hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software or Documentation.

6. Term and Termination. This Agreement and your right to use the Software and Documentation may be terminated by you or by Vertica at any time upon written notice.  This Agreement automatically terminates if you fail to comply with its terms and conditions.  Immediately upon termination, you shall return or destroy all copies of the Software and Documentation in your possession, custody or control and if requested you shall certify to Vertica in writing that such return or destruction has occurred.  The following sections of this Agreement survive any expiration or termination hereof: 1 and 4 - 11.

7. NO WARRANTY. YOU AGREE THAT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND THAT VERTICA AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS.  VERTICA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF VERTICA KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE) RELATED TO THE SOFTWARE OR DOCUMENTATION, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT.  VERTICA AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT, OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.

8. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, VERTICA AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL DAMAGES, EVEN IF VERTICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  YOU AGREE THAT YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SOFTWARE.  IN ANY CASE, VERTICA’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE SOFTWARE FOUND TO BE DEFECTIVE, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF VERTICA TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.

9. Export Controls. The Software and Documentation and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  By downloading or using the Software and/or Documentation, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you agree to comply with all export laws and other applicable laws.

10. U.S. Government End Users. The Software and Documentation each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101.  The Software consists 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 only those rights in the Software and the Documentation that are specifically provided by this Agreement.  Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.

11. Miscellaneous. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of Vertica. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law provisions. (c) You expressly agree that jurisdiction for any claim or dispute arising from the use of the Software and Documentation resides in the federal and state courts situated in Suffolk County, Massachusetts, U.S.A., and you consent to the personal jurisdiction thereof. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or Vertica may at its option terminate this Agreement. (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (g) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Vertica may assign this Agreement to any entity at its sole discretion. (h) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.