THIS SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“CUSTOMER”) AND DATASTAX, INC. (“DATASTAX”). USE OF DATASTAX SOFTWARE AND PRODUCTS, INCLUDING WITHOUT LIMITATION ALL ASSOCIATED DOCUMENTATION, IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING “I ACCEPT,” DOWNLOADING OR INSTALLING THE SOFTWARE, OR OTHERWISE SIGNIFYING ACCEPTANCE OF THIS AGREEMENT IN AN ORDER SCHEDULE OR OTHERWISE, CUSTOMER AGREES TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT.

1.     Definitions

1.1. “Documentation” means the electronic work provided in connection with the Software that describes the functions and features of the Software, as updated from time to time.

1.2. “Cluster” means a number of interconnected Nodes.

1.3. “Customer Application(s)” means Customer’s proprietary application(s) (i) as to which Customer deploys the Software under this Agreement and (ii) that are deployed by or on behalf of Customer in a production environment.

1.4. “Customer Network” means the hardware and software components within Customer’s internal computer network at Customer’s designated location or that of Customer’s designated hosting provider.

1.5. “Node” means each single Java Virtual Machine running the Elassandra code. 

1.6. “Production Node” means each Node that is deployed for production use with respect to a Customer Application.

1.7 “Products”  means the Software, Support and/or other Services from DataStax subject to the terms of this Agreement.

1.8. “Software” means the proprietary Elassandra software provided by DataStax to Customer as set forth on the applicable Order Schedule.  

2.     License.

2.1   Grant of License. Subject to the terms and conditions of this Agreement, during the subscription term specified in the applicable Order Schedule (the “Subscription Period”).  . DataStax grants to Customer a personal, non-sublicensable, nonexclusive, non-transferable and terminable license to: (a) install, or have installed, the Software on a single Cluster within the Customer Network and on no more than the number of Elassandra Production Nodes specified in the applicable Order Schedule , and (b) use the Software, in accordance with the Documentation, and on no more than the number of Elassandra Production Nodes as specified in the applicable Order Schedule. The foregoing license does not apply to any Third Party Software, which is licensed under separate licenses described in Section 2.3.

2.2  License Restrictions. All rights in the Software not expressly granted under this Agreement are reserved to DataStax or its licensors. Without limiting the foregoing (except to the extent such restriction is expressly prohibited by applicable law), Customer shall not, and shall not permit others under its control to: (1) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Software or any component thereof; (2) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Software to any third party; (3) use the Software for High Risk Activities or otherwise contrary to the Documentation; (4) use the Software for any unlawful purpose; or (5) use the Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service. “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Software could lead to death, personal injury, or environmental damage.  

2.3   Third Party Elements. Customer acknowledges that (i) the Software may contain other software or components that are either owned by a third party or in the public domain, and (ii) DataStax has no proprietary interest in such software or components (collectively and each, the “Third Party Software”), and as such, cannot grant Customer a license to use such Third Party Software. A listing of such Third Party Software will be made available from DataStax upon written request submitted to legal@datastax.com . Customer’s rights in the Third Party Software are governed by and subject to the terms and conditions set forth in the applicable third party license(s) also set forth therein. Customer acknowledges and agrees to fully comply with such terms and conditions. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THE AGREEMENT SHALL APPLY TO DATASTAX  AND ITS LICENSORS WITH RESPECT TO SUCH THIRD PARTY SOFTWARE. DATASTAX  IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR ANY SUCH THIRD PARTY SOFTWARE UNLESS EXPRESSLY AGREED TO IN WRITING  BY DATASTAX  UNDER A SEPARATE AGREEMENT. CUSTOMER FURTHER AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND DATASTAX  AND ITS LICENSORS FROM AND AGAINST ANY CLAIMS OR LAWSUITS, INCLUDING ATTORNEYS’ FEES, THAT ARISE OR RESULT FROM THE USE OR DISTRIBUTION OF SUCH THIRD PARTY SOFTWARE. 

2.4  Limited Rights. Customer's rights in the Software will be limited to those expressly granted in this Section 2. DataStax reserves all rights and licenses in and to the Software not expressly granted to Customer.

3.     Ownership. 

This license confers no ownership rights to Customer and is not a sale of any rights in the Software, the Documentation, or the media on which either is recorded or printed. DataStax shall own and retain ownership of all right, title, and interest in and to (i) the Software and any copies thereof; (ii) the Documentation and any copies thereof; (iii) any ideas, suggestions, or feedback relating to the Software and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing (i)-(iii). Customer hereby irrevocably assigns and agrees to assign all of its right, title, and interest in and to any Feedback to DataStax. 

4.  Fees. 

4.1.  Customer agrees to pay DataStax the applicable monthly or annual fees based on Customer’s subscription level set forth in the applicable Order Schedule (the “Fees”).  If Customer contracts  for a free trial or beta version of the Software, the Software will be offered to Customer free of charge during the trial or beta period indicated on the applicable Order Schedule or other agreement as between Customer and DataStax.  Customer shall pay all such taxes directly or to DataStax, as  required by applicable law. Should Customer not pay any amount when due, DataStax may (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Products.  All Fees are non-refundable.  

4.2.  Taxes. Customer is responsible for any duties, customs fees, or taxes (other than DataStax’s income tax) associated with the purchase of the Products provided by DataStax, (including any related penalties or interest) (“Taxes”), and shall pay the listed fees without deduction for Taxes. If Customer is required by applicable law to withhold any amount from any payments specified in the Order Schedule, then Customer will pay DataStax the listed fees as if no withholding were required, and shall remit the withholding to the appropriate governmental authorities on behalf of DataStax, with a copy of the tax receipt or certificate forwarded to DataStax.

4.3.  Delinquencies. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

5.  Support.

During the term of this Agreement, DataStax will provide Customer with Support of the Software during the Subscription Period, according to the DataStax Support Policy terms listed in Exhibit A. DataStax reserves the right to discontinue Support if Customer does not pay all Fees owed to DataStax as set forth in the applicable Order Schedule.  If Customer requires a purchase order to complete its purchase, then Support will not be provided until Customer delivers a conforming purchase order.

6.  Warranties.

6.1. Services Warranty. DataStax warrants that it will perform any Services with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. If the Services fail to conform to the foregoing warranty, as Customer’s sole and exclusive remedy for such failure, DataStax will promptly attempt to re-perform the applicable Service within 30 days or such longer period as agreed to by the parties in writing, or at DataStax’s option refund any Fees Customer has previously paid for the applicable Service(s).

6.2. Software Warranty. DataStax warrants that, during the Subscription Period, the Software will perform in material conformance with its published Documentation. If the Software fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy for such failure, DataStax will remedy such issues as provided in the DataStax Support Policy, or at DataStax’s option and upon Customer’s return of the Software to DataStax, refund the unused portion of any Fees paid for the Subscription. Under an unpaid license, the Software is provided free of charge, and on that basis, to the fullest extent permitted by law, DataStax provides the Software “as-is” and without any warranties.

6.3. Authority. Each party warrants that it has full power and authority to enter into this Agreement.

EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 6, DATASTAX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, ANY SERVICES, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR SERVICES SUPPLIED BY DATASTAX, ITS LICENSORS, OR ITS AGENTS, AND DATASTAX HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, ACCURACY OF DATA, AND NONINFRINGEMENT.

7.  Limitation of Liabilities. 

EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2 (LICENSE), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA,

BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LICENSEE’S BREACH OF SECTION 2 (LICENSE), EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE TO LICENSOR BY LICENSEE DURING THE ONE (1) YEAR PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

8.  Term and Termination. 

8.1. Term. This Agreement will begin on the Effective Date set forth in the applicable Order Schedule and will remain in effect for the Subscription Term  indicated in the applicable Order Schedule, unless terminated earlier in accordance with the terms of this Agreement.

8.2. Termination for Breach. Each party will have the right to terminate this Agreement or any Software license granted hereunder if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.

8.3. Effect of Termination. Upon any termination of this Agreement, all Software licenses granted pursuant to this Agreement shall immediately terminate. At such time, Customer will promptly return the Software to DataStax or destroy the Software and all copies and portions thereof, in all forms and types of media, and, at DataStax’s request, provide DataStax with an officer's written certification, certifying to Customer's compliance with the foregoing.

8.4. Survival. The rights and obligations of the Parties contained in Sections 2.2, 2.4, 4 (as to amounts owed as of termination), 6, 7, 8.4, 9, 10 and 11 of these terms survive the termination or expiration of this Agreement.

9.  Confidentiality

9.1. Confidentiality Obligation. During the term of this Agreement, both parties agree that: (1) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (2) each will use the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; and (3) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. DataStax may use Customer’s data for internal business purposes only, including providing Support, and improving, testing and providing the Products. “Confidential Information” means any information designated as confidential orally or in writing by either party, or any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party.

9.2. Exclusions. This Agreement imposes no obligation with respect to information that: (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.

9.3. Publicity. Customer may state publicly that it uses the Products. Any identification or use of a party’s brand, logo or trademark shall conform with the trademark use guidelines provided by one party to the other. During the term of this Agreement, DataStax may use Customer’s logo on the DataStax website and otherwise publicly state that Customer uses DataStax Products.  

10. Miscellaneous.

10.1. Governing Law and Jurisdiction. The validity and construction of this Agreement and all matters pertaining thereto are to be determined in accordance with the laws of California.   The Licensee agrees that any proceedings related to this Agreement, including any suit filed against DataStax, shall be brought in the courts situated in Santa Clara County, California.  

10.2. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer ("use") of the Software and the Documentation, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained in this Agreement. All other use is prohibited. Further, the Software and the Documentation was developed at DataStax's private expense and is commercial in nature. By using, receiving, or downloading the Software and the Documentation, the Government user agrees to the terms and conditions contained in this license agreement including the terms and conditions contained in this paragraph.

10.3. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.

10.4. Equitable Relief. The parties agree that a material breach of the license or confidentiality provisions of this Agreement would cause irreparable injury to DataStax for which monetary damages would not be an adequate remedy, and therefore DataStax shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law.

10.5. Force Majeure. Neither party shall be deemed to have breached any provision of this Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s control. DataStax reserves the right to suspend Subscriptions or Services to comply with applicable laws. 

10.6. Assignment. Customer may not assign this Agreement, in whole or in part, without DataStax’s prior written consent. DataStax may assign this Agreement in its discretion. Any purported assignment in violation of this section shall be null and void. This Agreement shall be binding on all permitted assignees. 

10.7. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

10.8. Waiver. The failure of either party to enforce at any time the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. 

10.9. Entire Agreement. This Agreement, including any and all exhibits attached hereto, is the entire agreement of the Parties and supersedes any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the Parties hereto. This Agreement supersedes any conflicting terms and conditions on any work orders, invoices, checks, order acknowledgements, forms, purchase orders, or similar commercial documents relating hereto and which may be issued by a party after the Effective Date. 

10.10. Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this section.

10.11   Export Controls. Customer agrees 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 Customer’s use of the Products. In particular, but without limitation, the 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. Customer represents and warrants that Customer and its Affiliates are not located in, under the control of, or a national or resident of any such country or on any such list.

10.12. Affiliates. DataStax and Customer agree that Affiliates of Customer may acquire Software from DataStax or its Affiliates by entering an Order Schedule with DataStax (or a DataStax Affiliate) that incorporates the terms and conditions of this Agreement and sets forth the then-applicable pricing. The parties acknowledge that adjustments to the terms of this Agreement may be made in a particular Order Schedule (for example, to address disparate tax and/or legal regimes in other geographic regions). “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

10.13 Consulting Services.   DataStax provides all Services according to the Service Terms at www.datastax.com/service-terms, as updated or amended from time to time.

10.14  Purchases Through a Reseller. If Customer purchases a Subscription from a reseller that has been authorized by DataStax then Customer will comply with the applicable product specific licensing terms at www.datastax.com/terms/product-specific-license-terms .

10.15 Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order: the Order Schedule, this End User License Agreement, and the terms located at any URL referenced in this End User License Agreement.

 

11. Compliance.   

During the term of this Agreement and for one year thereafter, but no more than once in a 12 month period and on no less than 30 days’ notice, Customer shall permit DataStax or its designated agent to inspect Customer’s facilities and records to verify Customer’s compliance with the Agreement. DataStax at its option may require that an executive officer of Customer certify in writing to Customer’s compliance with this Agreement and disclose the scope of use of the Software by Customer including the project in which the Software is being used and any projected date for any applicable non-production projects to go into production.