Last Updated Date: July 18, 2013
These End User General Terms (“Terms”) any other documents or terms expressly incorporated by reference into these Terms, are a legal agreement (the “Agreement”) between you and DataStax, Inc., a Delaware corporation governing your access to and use of the software made available to you by DataStax under this Agreement and related services. This Agreement may be accepted by (1) you clicking a box indicating acceptance when it is presented to you; (2) you and DataStax fully executing a separate ordering document that incorporates these Terms (an “Order Schedule”); or (3) you downloading or using software made available to you by DataStax. 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, you have read and understood this Agreement, and you agree on behalf of that person or entity to this Agreement (and, other than these representations, “you” refers to that person or entity).
The software made available to you by DataStax under this Agreement contains proprietary and non-proprietary components. In these Terms, the “Licensed Software” means the proprietary components of such software, including error corrections, modifications and updates to that software. Whether proprietary or non-proprietary, if you maintain a current subscription to Support, DataStax supports all components of the software that it delivers to you (as “Supported Software” under the DataStax Support Policies at www.datastax.com/support-policy). DataStax provides any non-proprietary components of the software subject to the applicable Apache license or other terms specified in your Order Schedule or in the “read me” file available upon access to the software.
2. Trial License
Subject to this Agreement, and as long as you have no Licensed Software deployed in production environments, DataStax grants you a royalty-free license to use the Licensed Software for an unlimited number of Nodes, only for internal, non-production, evaluation purposes (a “Trial License”). DataStax reserves the right, in its sole discretion, to terminate any Trial License. All Trial Licenses terminate without notice when you move any Licensed Software into production. Please note that under a Trial License DataStax provides the Licensed Software to you free of charge, and on that basis, to the fullest extent permitted by law, DataStax provides it “as-is,” and without any warranty or support.
3. Subscription License
Subject to this Agreement, including any payment obligations under your Order Schedule, DataStax grants you a nonexclusive, nontransferable, nonsublicensable license to use the Licensed Software, only during the Subscription Period and only for the scope of use stated in your Order Schedule. As used in these Terms, “Subscription Period” means the time period specified in your Order Schedule or applicable ordering document (and for any renewal, the time period stated in that renewal). Your licensed scope of use is based on the number of Nodes deployed and the number of Cores in each Node. As used in this Agreement, a “Node” means a Java virtual machine (a platform-independent execution environment that converts Java bytecode into machine language and executes it) that runs an instance of the Licensed Software, and a “Core” means an independent, physical processing unit on a CPU responsible for executing programs.
Except as expressly permitted under this Agreement, you may not (1) copy, modify or create any derivative works of the Licensed Software (or any portion thereof); (2) assign, sublicense, transfer, lease, rent or otherwise distribute the Licensed Software to any third party; or (3) make the functionality of the Licensed Software available to multiple users through any means, including but not limited to by uploading the Licensed Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. You acknowledge and agree that portions of the Licensed Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of DataStax and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Licensed Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
The Licensed Software is licensed, not sold. DataStax retains ownership of Licensed Software, including all intellectual property rights in the Licensed Software. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Licensed Software as delivered to you. If the Licensed Software is being used by or on behalf of the U.S. Government, then the U.S. Government’s rights in them will be only those specified in this Agreement, consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable.
Subscription licenses granted under this Agreement will automatically terminate, with or without notice from DataStax, upon expiration of the applicable Subscription Period. If DataStax terminates this Agreement due to your breach, any licenses granted under this Agreement will terminate upon the expiration of the required notice period. Upon termination, you must promptly, at DataStax’ option, either destroy or return to DataStax all copies of the Licensed Software in your control. Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure the breach within 30 days of written notice describing the breach.
7.1. Definition. Each party acknowledges that during the term of this Agreement it will receive information from the other party that the other party regards as confidential and proprietary. As used in this Agreement, “Confidential Information” means (1) the Licensed Software; (2) any information designated as confidential orally or in writing by either party; or (3) any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. In addition, Confidential Information includes any information related to any products or business of each party, including, but not limited to, product plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, research, development, and know-how.
7.2. Confidentiality Obligation. Each party shall use Confidential Information only for the purposes of this Agreement and shall not disclose it to any third party. As to the other party’s Confidential Information, each party shall take reasonable steps (1) to prevent the unauthorized use, dissemination or publication of the Confidential Information; (2) not to divulge Confidential Information to any third party; (3) not to make any use of Confidential Information except for the purposes contemplated under this Agreement; (4) to bind its employees and independent contractors (by agreement or otherwise) to obligations prohibiting them from revealing Confidential Information (except to the extent required to carry out its obligations under this Agreement); and (5) to require that Confidential Information be kept in a secure location or manner. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement: (A) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest the order or requirement; (B) on a confidential basis to its legal or professional financial advisors; (C) as required under applicable securities regulations; or (D) on a confidential basis to its present or future providers of venture capital and/or potential private investors in or acquirers.
7.3. Exclusions. This Agreement imposes no obligation with respect to Confidential Information which: (1) is a part of or enters into the public domain; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; or (4) is independently developed without reference to the Confidential Information of the disclosing party. Either party may disclose the terms of this Agreement to potential parties to financing, acquisition, divestiture or similar transactions to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospective or closed transaction, each party to that transaction using commercially reasonable efforts to limit the extent of the disclosure. By default, the Licensed Software periodically sends to DataStax the usage metrics specified at http://www.datastax.com/docs/opscenter/configure/configure_opscenter_adv#stat-reporter-interval. You can turn this functionality completely off by following the instructions at the above link. If you leave it on, then DataStax may to use and disclose the reported data as long as the source is kept confidential and anonymous.
7.4. Feedback. DataStax welcomes your suggestions and feedback. If you provide any suggestions, feedback, or improvements to the Licensed Software, DataStax will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.
8. Support and Warranty
8.1. Limited Warranty. DataStax warrants that it will perform any professional services with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. DataStax warrants that, during your active Subscription Period, the Licensed Software will perform in material conformance with its published documentation. If the Licensed Software fails to conform to the foregoing warranty, as your sole and exclusive remedy for such failure, DataStax will remedy such issues as provided in the DataStax Support Policies, or at DataStax’ option and upon your return of the software to DataStax, refund the unused portion of any fees paid for the non-conforming Licensed Software.
8.2. Harmful Code. DataStax will use commercially reasonable efforts and commercially available technology to scan any software made available by DataStax (including the Licensed Software and any non-proprietary software provided with the Licensed Software) for and to remove any computer “viruses,” “worms” and other illicit code, and will promptly notify you of any such items discovered. The Licensed Software shall not contain any “back door,” “time bomb,” or comparable device (i.e., code that is intentionally included to give Supplier the ability intentionally to interrupt or disable software).
8.3. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DATASTAX PROVIDES NO OTHER WARRANTIES REGARDING THE LICENSED SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DATASTAX OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
9. Professional Services
9.1. Customer Responsibilities. In connection with any professional services provided by DataStax, you shall (1) provide DataStax with reasonable access to your sites and facilities during your normal business hours and as otherwise reasonably required to perform the services; and (2) perform your agreed duties and tasks, and such other duties and tasks as may be reasonably required to permit DataStax to perform the services. You will also make available to DataStax any data, information and any other materials reasonably required by DataStax to perform the services, including, but not limited to, any data, information or materials specifically identified in the applicable ordering document (collectively, “Customer Materials”). You will be responsible for ensuring that all such Customer Materials are accurate and complete.
9.2. Customer Materials. As between you and DataStax, you will exclusively own all rights, title and interest in and to the Customer Materials, including all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights therein. DataStax acknowledges and agrees that Customer Materials constitutes Your Confidential Information.
9.3. DataStax Materials. Subject to your rights in the Customer Materials, DataStax will exclusively own all rights, title and interest in and to any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by DataStax or its personnel in connection with performing services (collectively “DataStax Materials”), including all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights therein. You will have no rights in any DataStax Materials except as expressly set forth in this Agreement.
9.4. Freedom of Action. Nothing in this Agreement will be deemed to restrict or limit DataStax’ right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that DataStax complies with its obligations with respect to your Confidential Information.
10.1. Indemnity by DataStax. DataStax shall defend or settle at its sole expense any claim brought against you, your directors, officers, or employees by a third party alleging that the Licensed Software as delivered by DataStax infringes any U.S. patent, copyright, or trade secret of a third party, and DataStax shall pay all damages finally awarded or costs of settlement of the claim provided that you: (1) provide DataStax prompt written notice of any claim (provided that failure or delay in giving notice shall not reduce or otherwise relieve DataStax of any liability it may have under this section, except to the extent that DataStax is prejudiced thereby); (2) give DataStax sole control of the defense and settlement thereof (except that (A) you shall at all times have the right at your sole option to participate in the defense and settlement at your own expense; and (B) without your prior written consent, DataStax shall not enter into any settlement that would require you to make any payment or to accept any non-monetary obligations defined as contractual prohibitions against use and other mandatory conducts, which approval shall not be unreasonably withheld); and (3) provide all reasonable assistance in connection with a claim.
10.2. Injunctions. If your rights to use the Licensed Software are, or in DataStax’ opinion are likely to be, enjoined due to an indemnified claim, then DataStax may, at its sole option and expense: (1) procure for you the right to continue using the Licensed Software according to the terms of this Agreement, (2) modify the Licensed Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (3) if neither of the foregoing options is commercially reasonable, terminate the license granted by this Agreement and provide a prorated refund of amounts paid for the applicable Licensed Software.
10.3. Exclusions. The foregoing indemnity does not extend to claims arising from or relating to (1) modifications to the Licensed Software not provided by or approved in writing by DataStax; (2) use of the Licensed Software in combination with any third party software or hardware to the extent the alleged infringement would not have occurred without the combination; or (3) the allegedly infringing activity continues after DataStax has informed you in writing of and made available to you at no additional charge a newer version of the Licensed Software that would have avoided the alleged infringement.
10.4. This section states your sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind.
11. Limitation of Liability
To the fullest extent permitted by applicable law, in no event shall DataStax be liable for the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort, strict liability or otherwise, even if advised of the possibility of such damages. To the fullest extent permitted by applicable law, in no event shall the total liability of DataStax to you under this Agreement exceed the greater of the total amounts paid by you to DataStax during the 12 months prior to the date the claim arises, or ten thousand US dollars. The liability limitations in this paragraph (and otherwise in this Agreement) do not limit or exclude damages for bodily injury or death, damage to real or tangible personal property, or other damages that under applicable law cannot be limited or excluded.
12.1. Assignment. The Agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.
12.2. Entire Agreement. Except as expressly agreed to otherwise in a writing by the parties that references this Agreement, this Agreement constitutes the complete Agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.
12.3. Export Controls. By using the Licensed Software, you agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of the Licensed Software. In particular, but without limitation, the Licensed Software may not, in violation of any Laws, be exported or re-exported (1) into any U.S. embargoed country or (2) 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. 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.
12.4. Force Majeure. Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting the failure or delay and beyond the party’s reasonable control.
12.5. Governing Law. This Agreement is to be construed in accordance with and governed by the laws of the jurisdiction stated in your Order Schedule (or other ordering document), and if no governing law is stated in that ordering document, by the internal laws of the State of California without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in the forum stated in your Order Schedule (or other ordering document), and if no dispute forum is stated in that ordering document, in a federal court in the Northern District of California or in state court in San Mateo County, California.
12.6. Independent Contractors. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.
12.7. Press Releases. DataStax may use your name and logo in its marketing program, including use on DataStax’ company website, marketing literature, and in press releases.
12.8. Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.9. Updates. Except as expressly provided herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. From time to time, in its sole discretion, DataStax may change these Terms. DataStax will notify you of any such changes by posting the amended Terms at www.datastax.com/terms, updating the “Last Updated Date” at the top of these Terms and notifying you by email to any contact email you provided. By continuing to access or use the Licensed Software after we have provided you with notice of a change to the Terms, you are indicating that you accept the changes and agree to be bound by the modified Terms. If the changes have a material adverse impact on and are not acceptable to you, then you must notify DataStax within 30 days of notice to you of the change. If DataStax cannot accommodate your objection to a change, then the prior Terms shall govern until the expiration of any then-current Subscription Period, and any renewal will be governed by the then-current Terms.
13. Questions and Comments
If you have questions or comments about the Agreement, these Terms or any other matter addressed in these Terms, please contact us using the information at www.datastax.com/contact-us.