END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is between DATASTAX, Inc. (“DataStax”) and the party signing under Customer at the end of this Agreement (“Customer”).
This is a subscription license and support agreement for DataStax Enterprise.
The parties agree as follows:
- 1.1 “Affiliates” means a company or other legal entity such as a partnership or limited liability corporation Controlled by, Controlling, or under common Control with a party, where “Control” and its variants mean possessing (i) ownership or control (directly or indirectly) of more than fifty percent (50%) of the voting rights or rights to elect the board or other governing body of a person, firm, association, partnership, corporation, governmental agency, or other legal entity (a “Person”); or (ii) the power to direct the affairs of any Person. An entity is an Affiliate of a party to this Agreement solely for so long as such Control exists.
- 1.2 “Enterprise” means the software listed on Exhibit A.
- 1.3 “Effective Date” Means the date this Agreement is signed by DataStax.
- 1.4 “Node” means each Java virtual machine (a platform-independent execution environment that converts Java bytecode into machine language and executes it), which runs an instance of Enterprise.
- 1.5 “Software” means DataStax proprietary software provided with Enterprise including OpsCenter and other proprietary software that may have Open Source Software components. The Software is provided in object code only but the open source components of Enterprise are available in source code.
- 1.6 “Subscription Period” means from the Effective Date of this Agreement to the end of the license period as stated in Exhibit A.
- 1.7 “Documentation” means the published and released electronic documentation for Enterprise.
- 1.8 “Open Source Software” means software in source code which requires a party who makes derivatives of the source to grant back licenses of the derivative work to the licensee and possibly other third parties.
- 1.9 “Update” means any bug fixes or performance or error corrections for Enterprise generally denoted by a change in the number to the right of the second decimal point (such as a version change from X.Y.1 to X.Y.2) and that DataStax makes generally available at no additional license fee to its licensees during the Subscription Period. Updates do not include any release, option or program that DataStax licenses separately from Enterprise or that DataStax makes available for an additional fee.
- 1.10 “Upgrade” means any version change for Enterprise with substantial improvements, enhancements and bug fixes, generally represented by a change in the number to the left or right of the first decimal point that DataStax makes generally available at no additional license fee to its licensees during the Subscription Period.
2 License Grant.
- 2.1 DataStax grants, during the Subscription Period, Customer a non-exclusive, non-transferable, non-sublicensable right to use the Software and the related published and released documentation and manuals (the “Documentation”) for the number of Nodes stated on Exhibit A.
- 2.2 Customer agrees and acknowledges that:
- (a) Customer will not (1) copy, modify or create any derivative works of the Software (or any portion thereof); (2) disassemble, reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code, the underlying ideas, algorithms, structure or organization of the Software; (3) assign, sublicense, transfer, lease, the Software or provide services to third parties using the Software, rent or redistribute the Software; or (4) authorize or permit any other third party to do any of the foregoing;
- (b) There are no implied licenses. In particular, there is no license to source code. All rights not expressly granted to Customer are reserved solely to DataStax.
- (c) DataStax only supports the software component versions of Enterprise that are provided by DataStax. DataStax does not have a duty to support other versions of the software components of Enterprise.
- (d) Customer shall adequately back up all databases, data, reports and data structures that use or access Enterprise. DataStax has no responsibility to backup or restore any data or databases under this Agreement.
- (e) Open Source Software components of Enterprise are provided without charge and are subject to the license terms provided with Enterprise. The license agreements are included in the “read me” file available upon access to Enterprise. Please review the licenses before using Enterprise.
- 3.1 Payments and Payment Terms: Customer agrees to pay to DataStax the fees set forth in Exhibit A within 30 days of the Delivery of Enterprise. DataStax will deliver Enterprise by sending Customer a password to access an electronic delivery of Enterprise on the Effective Date. Delivery is completed when the email is sent to Customer unless Customer advises DataStax within 5 days after the email is sent that Customer could not access and download Enterprise. Any amounts not paid when due shall accrue interest at a rate of 1.5% per month, or, if less, the maximum rate allowed by law. All payments shall be made in U.S. Dollars.
- 3.2 Taxes. Customer is solely responsible for paying all taxes arising from the transactions contemplated by this Agreement, excluding taxes on DataStax’s income. In the event that DataStax becomes obligated to withhold any such taxes, Customer shall promptly reimburse DataStax for all such amounts. If applicable law requires Customer to withhold or deduct any taxes or other charges from amounts payable to DataStax under this Agreement, Customer shall pay to DataStax the full amount shown in Exhibit A without any withholding or deduction and Customer shall pay all applicable taxes and other charges to the appropriate tax authorities. Customer shall promptly submit to DataStax copies of documentation certified by the applicable tax authorities establishing that such taxes and other charges were paid.
- 3.3 Except as provided in this Agreement, all fees paid under this Agreement are nonrefundable. This Agreement is non-cancelable by Customer. Customer’s payment obligations under this Agreement are not conditioned or dependent upon, and payments under this Agreement shall not be subject to refund in whole or in part by reason of, any other agreement between the parties.
- 3.4 Audit. Customer shall maintain complete, current and accurate records of the number of Nodes used with Enterprise. During the term of this Agreement and 1 year thereafter, DataStax shall have the right, upon reasonable prior notice to Customer, during Customer’s normal business hours, to audit or have audited Customer’s hardware and records to verifying compliance with the terms of this Agreement. DataStax shall bear the costs of such audit, unless such audit reveals an underpayment in excess of five percent (5%) of the amounts payable to DataStax or a material breach of this Agreement by Customer (“Discrepancy”), in which case Customer shall bear the reasonable out-of-pocket expenses and costs of such audit. Such audits shall be conducted no more than once each year.
- 4 Confidential Information. Except as provided in this Agreement, Customer agrees that neither it nor any of its employees or Affiliates will use or disclose to any third party (a) Enterprise (b) the Documentation, (c) any information regarding or derived from the content, purpose, design or function of the Enterprise or Documentation, or (d) any know-how, ideas, technical data, designs, concepts, techniques, inventions, discoveries, improvements or other information that relates to or is derived from research, product plans, products, services, customers, markets, developments, inventions, processes, fees, prices, marketing, future roadmap, or finances related to the Enterprise, Documentation or other information disclosed by DataStax (collectively, “Confidential Information”). Customer shall ensure that every Customer employee, Subcontractor and Subcontractor employee who will have access to any Confidential Information has executed a confidentiality agreement having terms at least as protective of the Confidential Information as those contained in this Agreement prior to being granted such access. Customer shall not disclose or disseminate any Confidential Information, in whole or in part, to any employee, or to any Subcontractor or Subcontractor employee, except on a need to know basis for the purposes of this Agreement. Customer agrees to protect the Confidential Information from unauthorized disclosure or use, using at least the same degree of care that Customer utilizes to protect its own confidential information of a similar nature, but in any event no less than Customer’s best efforts. Customer agrees to promptly notify DataStax in writing of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. DataStax may use Customer’s name and logo for marketing purposes showing Customer as a licensee of DataStax.
- 5 Indemnity by DataStax. DataStax shall defend or settle at its sole expense any claim brought against Customer, its directors, officers, employees by a third party alleging that the Software as delivered by DataStax infringes any copyright or misappropriates a trade secret of such third party under U.S. law, and DataStax shall pay all damages finally awarded or costs of settlement of such claim. If use of the Software is enjoined or in DataStax’s reasonable judgment is likely to be enjoined by reason of such infringement or misappropriation, or the Software may infringe or misappropriate such rights (“Infringing Code”), DataStax may, at its sole option and expense: (a) procure for Customer the right to continue using the Software according to the terms of this Agreement, (b) modify the Development Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the license granted by this Agreement with respect to the Infringing Code.
- 5.1 Exclusions. DataStax’s indemnity obligations shall not apply to any claim resulting from or based on (a) modification of the Software other than by DataStax, (b) use of the Software, or any part thereof, in combination with hardware or software not supplied by DataStax, or (c) failure to use the most recent version or release of the Software that has been made available to Customer by DataStax; provided that, in each case above, no such claim would arise but for such modification, use, or failure to use.
- 5.2 Sole Remedy. The foregoing states DataStax’s sole and exclusive obligation with regard to any claim of infringement or misuse or misappropriation of trade secrets and Customer’s sole remedy.
- 5.3 Indemnification Requirements. If any claim is brought against a person entitled to indemnity (“Indemnified Party”), the Party obligated to indemnify the Indemnified Party (“Indemnifying Party”) shall be obligated to provide such indemnification only if: (a) the Indemnified Party gives prompt written notice of such claim to the Indemnifying Party; (b) the Indemnified Party cooperates with the Indemnifying Party in all reasonable respects in connection with the defense of such claim at the expense of the Indemnifying Party; and (c) the Indemnified Party gives the Indemnifying Party sole control of the defense and settlement of such claim, provided that no settlement is entered without the prior written consent of the Indemnified Party if such settlement requires any admission of fault or wrong doing or any public statement by the Indemnified Party, or is not a full and complete settlement of all claims against the Indemnified Party. The Indemnified Party shall have the right to retain separate counsel and participate in the defense of the claim at its own expense.
- 6 Ownership. Customer’s rights in and to the Software are solely as set forth herein and do not include any rights of ownership. As between Customer and DataStax, DataStax owns all rights, title and interest rights in and to trade secrets, patents, copyrights, trademarks, trade names, know-how or other intellectual property or proprietary rights, current or future, under the laws of any jurisdiction, together with all applications therefore and registration thereto in and to the Software, excluding open source components, and all modifications or improvements thereto, whether or not created by DataStax. DataStax owns all rights to error reports, corrections, and information learned through any testing or support. Customer owns all data derived from reports issued by the Software. DataStax makes no claims to ownership third party open source software components provided with the Enterprise, which are governed by separate license agreements issued by the licensors.
- 7 Disclaimer of Implied Warranties. DATASTAX MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE OR THAT USE OF THE SOFTWARE WILL BE ERROR FREE, THAT ANY ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE’ FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS.
- 8 Limited Warranty. DataStax warrants that the Software will perform substantially in accordance with the specifications set forth in the Documentation for a period of 60 days after delivery. In the event of any breach of the foregoing Software warranty, DataStax’s sole liability and Customer’s sole remedy is for DataStax, at its option, to (1) use commercially reasonable efforts to correct any material Software defects discovered within the warranty period, or (2) replace the defective Software. The foregoing remedies are available only if DataStax is promptly notified in writing and the defect is specified and DataStax’s examination of the Software discloses that such defects exist. The foregoing warranty shall not apply to nonconformance or errors caused by (1) the improper use, alteration, or damage of the Software by Customer or persons not authorized by DataStax; (2) modifications to the Software not provided or approved in writing by DataStax; or (3) hardware, applications or other software not provided or approved in writing by DataStax. No warranty is provided for open source software components included with the Software, which is only provided “AS IS”.
- 9 Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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 THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OR FOR BREACH THEREOF, WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO DATASTAX DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE SUCH CLAIM ARISES.
- 10 Maintenance and Support Terms and Conditions. During the Subscription Period, DataStax shall make available to Customer maintenance and support services for Enterprise subject to the terms of the then current version of the DataStax Support Policy located at www.datastax.com/support-policy and the DataStax End of Life Policy located at www.datastax.com/EOLP which is incorporated by this reference. DataStax may modify the End of Life Policy.
- 10.1 Updates and Upgrades. During the Subscription Period DataStax will provide Updates and Upgrades to Customer. Customer will be solely responsible for installing Updates and Upgrades. Customer must backup all data and databases before installing any Updates or Upgrades.
- 10.2 Technical Support.
DataStax will provide support for Enterprise as stated in the Exhibit A.
- 11 Term and Termination. The term of this Agreement shall begin on the Effective Date and shall continue until this Subscription Period ends. The Subscription Period shall automatically renew unless either party provides notice that they intend to terminate the Agreement. The notice of termination must be sent at least 30 days before the end of the Subscription Period. DataStax may change pricing for a renewal but Customer shall have 60 days to after notice of price increase to elect to renew or terminate this Agreement.
- 11.1 This Agreement may also be terminated as follows:
- Either party may terminate this Agreement upon written notice that the other party is in material breach of this Agreement. A party has 30 days to cure the breach. If the breach is not cured, the Agreement is terminated at the end of the 30-day period.
- If this Agreement terminates because of DataStax’ breach or the Subscription period ends without renewal, Customer shall have the right to use Enterprise perpetually but all support and maintenance rights shall cease. Customer shall not contact DataStax to seek support or obtain any future Upgrades or Updates for Enterprise.
- If this Agreement is terminated because of a breach by Customer, all rights to Enterprise terminate and Customer shall have a period of 60 days to remove all copies of Enterprise from its Nodes.
- The following sections of this Agreement survive any termination: 2, 3, 4, 11, and 13.
- 12 Entire Agreement. This is the entire agreement between Customer and DataStax on this subject matter. This Agreement may be executed in two counterparts, both of which taken together will constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile or scanned transmission.
- 13 Choice of Law; Arbitration. . This Agreement shall be governed by the law of the State of California without regard to conflict of laws. In any action between the parties shall be resolved through binding AAA arbitration in San Francisco, California. The prevailing party shall recover its attorneys’ fees.
- 14 Notices. All notices required or permitted to be given by this Agreement shall be delivered to the address of the respective party marked to the attention of the CEO, with a copy to such party’s General Counsel, or at such other addresses as such party may designate by written notice in the manner set forth in this section. A notice shall be deemed given on the date delivered in person, or if delivered by reputable overnight or express carrier, on the date delivered by such carrier.