PENTAHO END USER LICENSE AGREEMENT
This End User License Agreement (this "Agreement") is made between Pentaho Corporation ("Pentaho") and the end-user of Pentaho's software (the "Licensee").  
Licensee intends to download and use certain Pentaho products (each, a "Product") for evaluation purposes.  If Licensee chooses, Licensee may also purchase a subscription license for such Product.  A subscription license may be obtained directly from Pentaho or through a third party reseller or integrator (the "Pentaho Partner").  Subject to the terms and conditions contained herein, this Agreement will govern the evaluation, license and use of the Products by Licensee.  The effective date of this Agreement (the "Effective Date") is the date this Agreement is accepted by Licensee by clicking the "I Accept" (or similar) button presented during the installation of the Product. 
Pentaho and Licensee agree as follows:

 
1.  	EVALUATION LICENSE.  Subject to the terms and conditions of this Agreement, under its Intellectual Property Rights, Pentaho grants Licensee a non-exclusive, non-transferable, non-assignable license (without the right to sublicense or distribute) to install and use one copy of the Product for internal evaluation purposes only in a non-production environment for a period of thirty calendar days (the "Evaluation Period").  Specifically, Licensee may input and analyze its data using the Product for evaluation purposes and will not input or analyze its data for any other business purpose.  Licensee may make one copy of the Product solely for Licensee's own backup purposes, provided Licensee includes all copyright and trademark notices on the back-up copy.  Licensee acknowledges that the Product will cease operation at the end of the Evaluation Period and releases Pentaho from any claims relating to such cessation.  

2.	DIRECT PURCHASE OF A SUBSCRIPTION LICENSE FROM PENTAHO.   If Licensee chooses to purchase a subscription license for a Product directly from Pentaho, such subscription license will be governed by the terms and conditions of a Master License and Services Agreement, agreed to and executed by Licensee and Pentaho.  

3. 	PURCHASE OF A SUBSCRIPTION LICENSE THROUGH PENTAHO PARTNERS.  In certain territories, Licensee may purchase the Product through a Pentaho Partner.  If Licensee chooses to purchase a subscription license from a Pentaho Partner, the terms of this Section 3 will apply.

3.1	License and Additional Terms.  In connection with the purchase a subscription license from a Pentaho Partner, Licensee will enter into an additional agreement with the Pentaho Partner which will govern certain terms of the license including, payment terms and the Pentaho Partner's support obligations, as well as other terms (the "Partner Agreement").  Specifically, Licensee's right to use the Products is and will be limited to the subscription period ("Subscription Period") and number of Cores (defined below) specified in the Partner Agreement.  Subject to the terms and conditions of this Agreement and the Partner Agreement, Pentaho hereby grants to Licensee, during the Subscription Period, a limited, non-exclusive, non-transferable, non-sublicenseable right and license: (a) to install the object code version of the applicable Product(s) on the number of Cores specified in the Partner Agreement; (b) to use the applicable Product(s) solely for Licensee's internal business operations; and (c) to provide the output generated by the Products by Licensee, including reports, dashboards, data analysis and data mining to Licensee's business partners and clients.  Licensee has no right to grant or authorize sublicenses or to further distribute the Products.  Licensee may make up to two copies of the Products for backup and/or archival purposes. "Core" means an individual processor and associated cache memory that is capable of executing a single Product code thread at a time.  

3.2	License Key.  Licensee acknowledges that the initial license key ("Initial License Key") provided to Licensee will enable use of the applicable Product(s) for sixty days.  The Product will cease operation at the end of the sixty day period, unless Licensee has paid the Pentaho Partner as required under the Partner Agreement.  Pentaho will provide a license key for the full Subscription Period only upon full payment of all amounts due to the applicable Pentaho Partner.   Licensee further acknowledges that Pentaho may choose not to renew any license key with Licensee if Pentaho reasonably believes that Licensee is in violation of the terms of this Agreement. 

3.3	Support Services.  Licensee acknowledges that the Pentaho Partner is fully responsible for the performance of any and all support services to be provided to Licensee with respect to the Products.  Pentaho has no support or similar obligations to Licensee with respect to the Products unless and until Pentaho and Licensee enter into a separate written agreement concerning such services. 
4.	INTELLECTUAL PROPERTY. 

4.1	License Restrictions.  Licensee will not, directly or indirectly:

	(a)	modify, create derivative works based on, sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Products or related documentation; 

	(b)	decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, in whole or in part, except to the limited extent allowed by law; 

	(c)	allow access or permit use of the Products by any users other than Licensee's employees, or authorized third-party contractors who are providing services to Licensee under non-disclosure obligations, provided that Licensee will be liable for any failure by such employees and third-party contractors to comply with the terms of this Agreement; 

	(d)	create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products; or

	(e)	if Licensee is a software or hardware vendor, disclose the results of any benchmark test of the Products to any third party without Pentaho's prior written approval.

4.2	Audit Rights. Licensee will maintain accurate records as to its use of the Products as authorized by this Agreement, for at least two years from the last day of the Subscription Period. Pentaho may, upon ten days prior notice and during Licensee's normal business hours, audit such records to verify that Licensee has used the Products in accordance with the terms of this Agreement and the Order, provided that Pentaho may conduct no more than one audit in any twelve month period. Pentaho shall use commercially reasonable efforts to minimize the disruption of Licensee's normal business activities in connection with any such audit.  Pentaho shall not have physical access to Licensee's computing devices in connection with any such audit, without Licensee's prior written consent.  Licensee shall promptly pay to Pentaho or the applicable Pentaho Partner any underpayments revealed by any such audit.  

4.3	Open Source Software.  Any open source software included in the Products, along with the applicable license, is listed in the Product license file or documentation.  Such open source software is licensed to Licensee under the terms of the corresponding license.  

4.4	Ownership.  The Products and related documentation are and will remain the sole property of Pentaho and its licensors, and, except as expressly provided herein, Pentaho and its licensors retain all right, title and interest in and to the Products, including all underlying intellectual property rights.
5.	LIMITED WARRANTY AND LIMITATION OF LIABILITY.

5.1	Product Warranty.  Pentaho warrants to Licensee that, for a period of thirty days following the date that the Initial License Key is provided to Licensee, the Products will substantially conform to the description contained in the applicable documentation ("Warranty Period").  

5.2	Remedies.  If, during the Warranty Period, the Products do not substantially conform to the description contained in the applicable documentation, Licensee will so notify the applicable Pentaho Partner.  Pentaho will work with the Pentaho Partner to correct the defects and deliver such correction to the Licensee.  The remedy set forth in this Section is Licensee's sole and exclusive remedy, and Pentaho's sole and exclusive obligation, for breach of warranty.  

5.3	Limitations.  The warranty in Section 3.1 is made to and for the benefit of Licensee only.  The warranty will apply only if:

	(a)	the Products have been properly installed and used at all times and in accordance with the instructions in the applicable documentation;

	(b)	no modification, alteration or addition has been made to the Products; and

	(c)	the Pentaho Partner receives written notification of the breach within thirty days of the delivery of the Initial License Key.

5.4	Disclaimer.  EXCEPT AS SET FORTH IN SECTION 5.1 ABOVE, THE PRODUCT IS PROVIDED "AS IS" AND PENTAHO AND ITS LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE PRODUCT, ITS DOCUMENTATION OR ANY MATERIALS PROVIDED BY PENTAHO TO LICENSEE.  PENTAHO AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCTS WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THE PRODUCTS ARE DESIGNED TO MEET LICENSEE'S BUSINESS REQUIREMENTS.  PENTAHO AND ITS LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGMENT.  

5.5	Limitation of Liability.  PENTAHO AND ITS LICENSORS WILL NOT HAVE LIABILITY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, PENTAHO'S TOTAL AGGREGATE LIABILITY, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY, WILL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY PENTAHO IN AN AMOUNT NOT TO EXCEED THE PRICE PAID BY LICENSEE FOR THE PRODUCTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. 

6.	CONFIDENTIAL INFORMATION. 

6.1	Pentaho Confidential Information.  Licensee will not disclose any Pentaho Confidential Information (defined at the end of this Section) to any third party, other than employees and consultants acting on Licensee's behalf who are subject to confidentiality obligations at least as strict as those contained in this Section.  Licensee will not use any Pentaho Confidential Information except to exercise its rights under this Agreement.  Licensee will be held to the same standard of care as it applies to its own information and materials of a similar nature, but in no event no less than reasonable care.  Licensee may disclose Pentaho Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body; provided that Licensee gives prompt written notice thereof to Pentaho and cooperates with Pentaho in obtaining an appropriate protective order or otherwise preventing or restricting such disclosure. "Pentaho Confidential Information" means all non-public information or materials provided to Licensee in connection with the Products, including any non-public software contained in each Product.

6.2	Licensee Information.  If, in the course of any evaluation or communication hereunder, Licensee provides any data to Pentaho, then Pentaho will protect the confidentiality of such information in compliance with the standards and obligations set forth in Section 6.1.  In connection with any such disclosure, Licensee will comply with any contractual or other legal obligations it has with respect to such data.  Licensee will not, in any event, disclose to Pentaho any data that includes personally identifiable information.  

7.	MISCELLANEOUS.

7.1	No Assignment. This Agreement and any rights or obligations of Licensee under it may not be assigned, subcontracted or otherwise transferred by Licensee, in whole or in part, other than to a successor-in-interest in the event of a sale or merger of Licensee, upon written notice to Pentaho. Any attempt to assign this Agreement by Licensee without such consent shall be null and void and of no force and effect.  

7.2	No Warranties.  No Pentaho Partner or other third representative of Pentaho has authority to make representations on behalf of, or bind, Pentaho.  Other than the obligations set forth in this Agreement, Pentaho may only be bound to Licensee by written agreements signed by an officer of Pentaho.  

7.3	Waiver.  Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective.  Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the term of this Agreement or prejudice such party's right to take subsequent action. 

7.4	Severability.  If any provision in this Agreement (including, without limitation, the prohibition on de-compiling or reverse engineering) is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

7.5	Government Regulations.  Licensee may not export or re-export the Products except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable.  The Products and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable.  Any use, modification, reproduction, release, performing, displaying or disclosing of the Products and related documentation by the U.S. Government shall be governed solely by the terms of this Agreement.

7.6	Language.  This Agreement is in the English language only, which shall be controlling in all respects.  Any versions of this Agreement in any other language shall be for accommodation only and shall not be binding upon either party.  

7.7	Governing Law.  This Agreement will governed by the laws of the State of New York and the United States of America, without regard to conflict of law principles.  The parties hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in New York, New York for resolution of any disputes arising out of this Agreement and waive all objections thereto.  The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement. 

7.8	Complete Agreement.  This Agreement contains the entire agreement of Pentaho and Licensee with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties on the subject matter hereof. This Agreement shall not be amended, except by a writing signed by authorized representatives of both parties.
