This Evaluation Agreement (“Agreement”) is a legal agreement between between DataStax, Inc. (“DataStax”) and the party agreeing to of this Agreement (“Licensee”). This Agreement is effective as of the date Licensee clicks the “I Accept” button (the “Effective Date”). If you are accepting on behalf of another person or entity, then you represent and warrant that you have the authority to bind that person or entity to this Agreement, you have read and understood this Agreement, and you agree on behalf of that person or entity to this Agreement. If you do not have the legal authority to bind the Licensee, please do not click the “I Accept” button. This is a license to allow Licensee to evaluate certain DataStax software products and the DataStax OBDC Driver for Hive.
The parties agree as follows:
“Confidential Information” means the proprietary portion of the Software, information and data of DataStax which is disclosed to Licensee pursuant to this Agreement (i) in written form and marked “Confidential”, “Proprietary” or with a similar designation; (ii) orally, visually or by demonstration and identified at the time of initial disclosure as confidential or proprietary; (iii) that is otherwise deemed to be Confidential Information by the terms of this Agreement. Confidential Information shall also include any information and data that a reasonable person would or should know was confidential or proprietary, regardless of whether or not marked or identified as such. Confidential Information shall include, but not be limited to, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, schematics, designs, contracts, customer lists, financial information, product plans, sales and marketing plans and business information. Confidential information does not include open source software and information that is publically available.
“Software” means the DataStax’s proprietary software and open source offerings called Enterprise, and the DataStax OBDC Driver for Hive.
2. License Grant
DataStax grants to Licensee during the Term of this Agreement a limited, worldwide, nonexclusive, nontrans-ferable right to make up to ten copies of the proprietary portion of the Software and use the proprietary portion of the Software for internal evaluation purposes only.
3. Prohibited Uses
Licensee may not use the proprietary portion of the Software for any commercial implementation or in its operations. Licensee may not, (i) sell, rent, lend, lease, assign, sublicense or transfer the proprietary portion of the Software; (ii) modify, alter, decompile, disassemble, reverse engineer or otherwise attempt to discover the source code for the proprietary portions of the Software, in whole or in part; (iii) reveal the proprietary portions of the Software or any materials associated therewith to any third party; (iv) reveal any bench marking or test results obtained with or through use of the proprietary portion of the Software.
4. Open Source
To the extent Licensee receives from DataStax any Open Source as part of the Software under this Agreement, and notwithstanding any provision to the contrary, the restrictions on use, modification or reproduction of the Software do not apply to the portion thereof that constitutes source code for any Open Source or Open Source component of the Software. The rights and obligations of Licensee with respect to such source code and source code documentation for Open Source shall be as set forth in the Open Source license under which DataStax distributes such code to Licensee. Licensee agrees to treat any DataStax modification of Open Source that Licensee receives under this Agreement as DataStax’s Confidential Information until such time as DataStax publishes its modifications to such Open Source pursuant to the terms of any applicable Open Source license.
5. Intellectual Property Rights.
The proprietary portion of the Software contains the trade secrets and other confidential and proprietary information of DataStax. Except for the limited license rights herein, Licensee hereby disclaims any right, title or interest in or to the proprietary portions of the Software or any intellectual property rights therein. All rights, not expressly granted to Licensee, belong to DataStax or its suppliers. DataStax warrants that the Software does not infringe the intellectual property rights of any third party.
6. Confidential Information.
Licensee shall agrees that during the Term and for a period of three years after termination, to keep in confidence and trust all Confidential Information received by it (except for any proprietary portions of the Software, which shall be kept in confidence and trust in perpetuity). Licensee shall not use the Confidential Information other than as expressly permitted under the terms of this Agreement. Licensee acknowledges that all proprietary portion of the Software is composed of Confidential Information, including without limitation confidential data and know-how, which is proprietary to DataStax and/or its suppliers. Licensee shall take all reasonable steps to prevent unauthorized disclosure or use of the Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons.
7. Disclaimer of Warranty
THE SOFTWARE AND ASSOCIATED DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION IS WITH LICENSEE. DATASTAX DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. LICENSEE SHALL BACKUP ALL ITS FILES, CONTENT AND DATA BEFORE USING THE SOFTWARE WITH SUCH FILES, CONTENT OR DATA.
8. Limitation of Liability.
EXCEPT FOR LICENSEE’S IMPAIRMENT OF ANY OF DATASTAX’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR ANY SUPPLIER OF DATASTAX BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR PERSONAL INFORMATION OR OTHER DATA OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, THE INABILITY TO USE, QUALITY, OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, DATASTAX’S ENTIRE LIABILITY TO LICENSEE ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), IF ANY, SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00), AND THE PARTIES ACKNOWLEDGE THAT THIS ALLOCATION OF RISK IS A MATERIAL CONDITION UPON WHICH DATASTAX ENTERS INTO THIS AGREEMENT.
Licensee acknowledges that DataStax has no contractual obligation of support under this Agreement and that any support that may be provided by DataStax to Licensee, in DataStax’ sole discretion, will not give rise to any continuing obligation of support directly or as a result of any conduct that may constitute a course of dealing.
10. Term And Termination
This Agreement shall become effective on the Effective Date and shall remain in effect for a period of 45 days. The Agreement may be terminated by either party on 15 days notice.
Upon expiration or termination of this Agreement, all of Licensee’s rights to the proprietary portion of the Software shall cease. Upon termination, Licensee shall cease using, and must either 1) return all copies of the proprietary portion of the Software and associated documentation to DataStax or 2) destroy all copies of the proprietary portion of the Software and associated documentation and provide DataStax with a signed certificate of destruction of all copies of the proprietary portion of the Software.
If Licensee continues to use the DataStax ODBC Driver for Hive after the expiration of the 45 day trial period, then Licensee must pay, and DataStax will invoice Licensee for, a license fee of $1,500. Upon payment of that fee, the term shall be converted to perpetual (subject to the other terms of this Agreement).
If any provision of this Agreement is found void or unenforceable, it will not affect the validity of the rest of the Agreement. This Agreement may be amended or supplemented only by a writing that refers specifically to this Agreement and is signed by duly authorized representatives of both parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof.