pgEdge Cloud Services Evaluation Agreement
Last Updated: November 1, 2023
Welcome to pgEdge! Please carefully review the following pgEdge Cloud Services Evaluation Agreement (this “Agreement”), as this Agreement applies to your access to and use of pgEdge Cloud Free Developer Edition (collectively, “pgEdge”, “we”, “us”, or “our”) as part of an alpha, beta or evaluation test program or otherwise on a free basis (individually and collectively, the “PgEdge Cloud Free Developer Edition Services” or “Services”).
BY ACCESSING OR USING THE PGEDGE CLOUD FREE DEVELOPER EDITION SERVICES IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE ACCOUNT REGISTRATION PROCESS, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, (3) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF YOU ARE ACCESSING OR USING THE SERVICE ON BEHALF OF AN ENTITY, ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
1. Right of Access and Use.
Subject to the terms and conditions of this Agreement and your compliance therewith, pgEdge hereby grants to you, during the Evaluation Period (as defined below), a limited, non-exclusive, revocable, non-assignable, non-sublicensable, personal, non-transferable right to access and use the PgEdge Cloud Free Developer Edition Services made available to you by pgEdge in accordance with the Access Protocols provided to you by pgEdge solely for evaluation use in your internal development and testing environments, and not for production use. You agree to not use the Services for any production use or use outside of your organization. Except as expressly set forth herein, no other right or license of any kind is granted to you with respect to the PgEdge Cloud Free Developer Edition Services. Subject to the rights granted in this Agreement, PgEdge retains all right, title and interest in and to all PgEdge software. All rights not expressly granted in this Agreement are reserved.
2. Restrictions on Use.
You shall not at any time, directly or indirectly, and shall not permit any third party to: (a) use the PgEdge Cloud Free Developer Edition Services for any purposes beyond the scope of the access granted in this Agreement; (b) remove, obscure or alter any proprietary notices related to the PgEdge Cloud Free Developer Edition Services or circumvent any securities measures or use restrictions in therein; (c) use the PgEdge Cloud Free Developer Edition Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (d) input, upload, transmit or otherwise provide to or through the PgEdge Cloud Free Developer Edition Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (e) use the PgEdge Cloud Free Developer Edition Services for any unauthorized purpose or in any manner that damages, interferes with or disrupts the integrity or performance of the PgEdge Cloud Free Developer Edition Services or pgEdge’s customers’ access to or use of the same; (f) decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law; provided that you provide pgEdge with advance written notice thereof) the PgEdge Cloud Free Developer Edition Services or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the PgEdge Cloud Free Developer Edition Services or any portion thereof; (g) copy, modify, translate or create any derivative works based upon the PgEdge Cloud Free Developer Edition Services or any portion thereof; (h) distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer the PgEdge Cloud Free Developer Edition Services, in whole or in part, to any third party; (i) perform, or release the results of, benchmark tests or other comparisons of the PgEdge Cloud Free Developer Edition Services with other programs; (j) use the PgEdge Cloud Free Developer Edition Services in connection with any hosting services or service bureaus or otherwise to be used for processing the data of any third party; (k) use the PgEdge Cloud Free Developer Edition Services in order to build a competitive product or service or otherwise for competitive or benchmarking purposes; or (l) attempt any of the foregoing. In addition, you acknowledge and agree that the PgEdge Cloud Free Developer Edition Services are provided with limited resources, namely, no more than 3 vCPUs, 6GB RAM and 4GB disk across a 3 node cluster and that you shall not attempt to or otherwise attempt to use more than the resources provided.
3. Open-Source Software.
You acknowledge and agree that certain elements of the PgEdge Cloud Free Developer Edition Services are subject to “open source” or “free software licenses” (“Open Source Software”) owned by third parties. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of the applicable end-user license for such Open Source Software.
4. Evaluation Period.
4.1. Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above), and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement (the “Evaluation Period”).
4.2. Termination of Service. Either party may terminate this Agreement at any time for any reason by providing notice to the other party. If you have materially breached any provision of this Agreement, or if pgEdge is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), pgEdge has the right to, immediately and without notice, suspend or terminate any Service provided to you.
4.3. Effect of Termination. Upon termination of the Service or the applicable feature or functionality thereof, your right to use the Service or the applicable feature or functionality thereof will automatically terminate, and we may delete Your Data associated therewith from the database(s). pgEdge will not have any liability whatsoever to you for any suspension or termination of your access to the Service, including for deletion of Your Data. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, Sections 2, 8 and 9 of this Agreement.
5. Availability.
pgEdge does not make any representations or warranties as to the availability of the PgEdge Cloud Free Developer Edition Services, which may be subject to periods of unplanned unavailability during the Evaluation Period, and you agree that pgEdge will not be liable to you or any other third party as a result of the PgEdge Cloud Free Developer Edition Services not being available at a particular time or at all. Your access to the PgEdge Cloud Free Developer Edition Services may be suspended temporarily and without notice, such as in the case of system failure, maintenance or repair, or for reasons beyond pgEdge’s reasonable control.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND PGEDGE MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE. PGEDGE SPECIFICALLY DISCLAIMS ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE.
6. Support.
pgEdge shall have no obligation to offer support services to you, and nothing contained herein shall be interpreted so as to require pgEdge to provide any developer support, maintenance, installation services, debugging, consultation, technical support or end-user support of any kind. Any updates, enhancements, modifications, and additions to any of the PgEdge Cloud Free Developer Edition Services that may be provided by pgEdge to you in the future shall be provided at pgEdge’s sole discretion.
7. Use of Your Data.
You hereby grant to pgEdge, during the Evaluation Period, a limited, non-exclusive, revocable, non-assignable, non-transferable right and license to access and use data uploaded by you into the PgEdge Cloud Free Developer Edition Services or otherwise provided by you to pgEdge (“Your Data”) solely if and to the extent required to provide the PgEdge Cloud Free Developer Edition Services to you and for no other purposes. Please review our Privacy Policy to learn more about how we collect, use, and disclose personal information you upload into the PgEdge Cloud Free Developer Edition Services or otherwise provide to us. You are responsible for all changes to and/or deletions of Your Data and the security of all passwords and other Access Protocols required in order to access the Services. You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the all Your Data.
8. Confidentiality.
8.1. From time to time during the Evaluation Period, either you or pgEdge (each, a “disclosing party”) may disclose or make available to the other (each, a “receiving party”) nonpublic or proprietary data and other information of the disclosing party (or its affiliates), whether orally or in written, electronic, or other form or media, and which is either (a) marked, designated or otherwise identified as “confidential”, or (b) is of a type which a reasonable person would understand is confidential or proprietary in nature even if not so marked, designated or identified, including trade secrets, customer lists, pricing, technical data, product ideas, methods, processes, code, data, inventions, statistics, programs, research, technology, network designs, passwords and sign-on codes, personnel and staffing, and contract and financial information (the “Confidential Information”). Without limiting the foregoing, the PgEdge Cloud Free Developer Edition Services are the Confidential Information of pgEdge. Confidential Information does not include information that, at the time of disclosure is: (i) publicly available when disclosed or becomes publicly available without fault of the receiving party; (ii) known to the receiving party at the time of disclosure, as evidenced by its written records; (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (iv) independently developed by the receiving party, as evidenced by its written records.
8.2. The receiving party shall not use the disclosing party’s Confidential Information except to the extent necessary to fulfill its obligations under this Agreement. In addition, the receiving party shall not disclose the disclosing party’s Confidential Information to any third party and shall maintain such Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information (a) on an “as-needed” basis to its directors, officers, employees, advisors, agents, subcontractors and/or consultants who are bound by obligations materially similar to this Section 8, provided that the receiving party will remain liable for any breach by any such parties of these provisions and for any damages caused thereby, and (b) to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order, or (ii) to establish a party’s rights under this Agreement, including to make required court filings.
8.3. Each of your and pgEdge’s obligations of non-disclosure with regard to Confidential Information will expire five (5) years from expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8.4. You and pgEdge acknowledge and agree that a breach or threatened breach by the other of any of the other’s obligations under this Section 8 would cause the other irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be 1.1. available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.
8.5. During the term of this Agreement, you may provide ideas and feedback to PgEdge about the Services. You grant PgEdge a perpetual, irrevocable right to use and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you related to the Services, including for the purpose of improving and enhancing PgEdge’s products and PgEdge Services; provided that you are not referenced in such use.
9. PGEDGE SHALL NOT BE LIABLE TO YOU NOR TO ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, NOR FOR ANY LOSS OF PROFITS, DATA, REVENUE, NOR DAMAGE TO REPUTATION OR GOODWILL. FURTHERMORE, IN NO CASE SHALL PGEDGE BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY CLAIM EXCEEDING U.S. $100 UNDER THIS AGREEMENT. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
10. Indemnification. You shall indemnify and hold pgEdge, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “ pgEdge Party” and collectively, the “ pgEdge Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Data; (b) your violation of this Agreement; or (c) your violation of any applicable laws, rules or regulations. pgEdge reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with pgEdge in asserting any available defenses. This provision does not require you to indemnify any of the pgEdge Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of this Agreement and/or your access to the Service.
11. Agreement Updates. When changes are made, pgEdge will make a new copy of this Agreement available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an account and thirty (30) days after posting for users with an account. pgEdge may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU MUST STOP USING THE SERVICE.
12. General Provisions.
12.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any and all prior proposals (oral and written), understandings and other agreements between the parties, which relate to the subject matter of this Agreement. This Agreement may only be amended by a written instrument signed by both parties. A party’s waiver of any breach of this Agreement by the other party will not constitute a waiver of any rights or any subsequent breach of the same or different provision thereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party.
12.2. Assignment. You may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement shall be binding upon the parties and their respective successors and permitted assigns.
12.3. Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by e-mail, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the cover page, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
12.4. Governing Law. The Agreement is governed by the laws of the Commonwealth of Virginia, without regard to its conflicts of laws provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.5. Waivers; Severability. Any waivers shall be effective only if made by writing signed by representatives authorized to bind the parties. 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. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.6. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
12.7. International Users. The Service may be accessed from countries around the world and may contain references to services that are not available in your country. These references 1.1. do not imply that pgEdge intends to announce such service in your country. The Service is controlled and offered by pgEdge from its facilities in the United States of America. pgEdge makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
12.8. Electronic Communications. The communications between you and pgEdge may take place via electronic means, whether you visit the Service or send pgEdge emails, or whether pgEdge posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from pgEdge in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that pgEdge electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
12.9. Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. You also will not use the Service for any purpose prohibited by U.S. law. You acknowledge and agree that products, services or technology provided by pgEdge are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer pgEdge services or technology to any country in violation of such laws and regulations.
12.10. Definitions. Certain capitalized terms, not defined above, have the meanings set forth below.
“Access Protocols” will mean the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow you or any Authorized Users to access and use the Services.
“Authorized User” will mean any individual who is your employee, authorized, by virtue of such individual’s relationship to, or permissions from, you, to access and use the Services pursuant to your rights under this Agreement.
“vCPU” means the processor of a virtual machine (“VM”) with the ability to run one processing thread at a time on a system’s physical CPU. For example, if a VM is assigned two vCPUs, the operating system (OS) would expect that it can run two threads at a time.