PLEASE READ THESE DATASTAX ASTRA TERMS (“AGREEMENT”) CAREFULLY. BY CLICKING THE BOX INDICATING ACCEPTANCE OR ACCESSING THE CLOUD SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND AGREE TO THEM, AND THAT YOU HAVE READ AND AGREE TO THE DATASTAX ASTRA PRIVACY AND DATA PROCESSING POLICY AND THE DATASTAX CONSOLE PRIVACY AND DATA PROCESSING POLICY. IF YOU ARE AGREEING TO THESE TERMS AND POLICIES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THESE TERMS AND POLICIES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT WISH TO BE BOUND BY THE TERMS, THEN YOU MUST NOT USE OR ACCESS THE CLOUD SERVICES
This Agreement is between the person or entity agreeing to these terms (“Customer” or “You”) and DataStax, Inc., (“DataStax”) a Delaware corporation, and includes these Terms, any terms expressly incorporated herein by reference. This Agreement is effective as of the earliest date on which the Customer accepts this Agreement.
In order to provide You with the Cloud Services (defined below) we may collect, process, retain, or share Your information. For information on how we collect, process, retain and share Your personal information, please see the DataStax Astra Privacy and Data Processing Policy, available at: https://www.datastax.com/legal/datastax-astra-privacy-policy, and the DataStax Console Privacy and Data Processing Policy, available at: https://www.datastax.com/legal/datastax-console-privacy-policy (collectively the “Privacy and Data Processing Policies”), each as may be updated from time to time. THE PRIVACY AND DATA PROCESSING POLICIES ARE HEREBY INCORPORATED BY REFERENCE IN THE AGREEMENT. YOU MAY NOT USE THE CLOUD SERVICES IF YOU DO NOT AGREE TO ALL OF THE PROVISIONS OF SUCH POLICIES.
- “Capacity Unit” means the DataStax unit of measure for the purpose of Customer’s use of the Cloud Services. Each Capacity Unit is equivalent to three (3) virtual nodes within a Database. DataStax offers Capacity Units at different Compute Tiers.
- “Cloud Services” means DataStax Astra, including DataStax Astra obtained through the DataStax Astra site (astra.datastax.com) or the Google Compute Cloud Marketplace.
- “Compute Tier” or “Compute Size” means the processing tier selected by Customer for the Capacity Units within a Database. Currently, DataStax offers two different compute factor tiers: (i) C10 and (ii) Free, each of which provides different CPU and RAM processing capabilities.
- “Console” means the applicable DataStax registration, billing, deployment, configuration, monitoring and reporting platform for the Cloud Services available at astra.datastax.com. Customers of DataStax Astra for Google Cloud may also have access to the DataStax Astra for Google Cloud user portal (the “GCP Console”), which may be subject to additional Google terms and conditions.
- “Customer Data” means any and all electronic data or information, including Personal Information which is transferred by Customer or persons acting on its behalf to the Cloud Services, or otherwise stored, created, processed or modified in connection with Customer’s Database.
- “Database” means a Customer-designated Cloud Services cluster comprised of one or more Capacity Unit(s) which communicate with one another. Within a Database, all Capacity Units must be the same Compute Tier.
- “Documentation” means the Cloud Services documentation and other materials available at docs.datastax.com, as amended from time to time.
- “Parked” with respect to a Database means a Database that has been put in inactive status by Customer or DataStax. While Parked, the Customer Data in a Database will be retained but cannot be accessed by Customer’s application and Customer will not be able to read to or write from the Database.
- “Personal Data” means any Customer Data that is defined as “Personal Data” under applicable EU Data Protection Laws and to which EU Data Protection Laws apply and which is provided by the Customer to DataStax or accessed, stored or otherwise processed by DataStax in connection with the Cloud Services.
- “Software” means the DataStax software and all related tools made available as part of, or used to provide the Cloud Services. The Software includes the third party software and material specified at www.datastax.com/thirdpartysoftware.
- “Support” means any Cloud Services support provided by DataStax to Customer, including any questions or issues submitted via the Console, phone or email, or DataStax responses to such submissions.
- Cloud Services
- Metered Services. Charges for the Cloud Services will be billed according to the then-current applicable list price based on the number of hours consumed as well as the number of Capacity Units and Compute Tier selected. The Cloud Services will be provided in accordance with the Documentation in the cloud environment (“the Cloud Environment”), as selected by Customer from available options.
- Requirements. DataStax will provide Cloud Services in accordance with the specifications set forth in the Console or Documentation. Customer will provide all accurate and complete information as required in the Console.
- Modifications; Discontinuation of Service. You agree and understand that DataStax may make modifications, including discontinuation of the Cloud Services or components of the Cloud Services, from time to time and will use commercially reasonable efforts to notify Customer of any material modifications.
- Cloud Environment. Customer’s use of the Cloud Environment in connection with the Cloud Services is included in the fees charged for the Cloud Services. However, the Cloud Environment is provided by a third party, and is subject to applicable third party terms and conditions.
- Console. Customer’s use of the Console in connection with Customer’s use of the Cloud Services is included in the fees charged for the Cloud Services.
- Compliance with Applicable Laws. Your use of the Cloud Services, including the Console and the Cloud Environment must comply with all applicable laws, rules and regulations.
- Registration. In order to use the Cloud Services, You must complete the registration process and provide your email address and other account billing information on https://astra.datastax.com (for DataStax Console registered users) or login using your Google Cloud Platform credentials (for Google Cloud Platform registered users) (“Account Data”). You must provide complete and accurate Account Data during the registration process and must keep your Account Data up-to-date. You are prohibited from misrepresenting Your identity or Your affiliation with any company or other entity. You are responsible for all activity that occurs on your account. You should promptly contact DataStax if you believe that Your account credentials have been compromised. Without derogation of the foregoing, DataStax reserves the right to reset or terminate any account login credentials if there has been any unauthorized access or activity on Your account.
By providing Your Account Data, you hereby consent to receive email or in-Console communications from DataStax. Such communications may include communications regarding Your Cloud Services Account and/or commercial content relating to other DataStax products and services. If you do not wish to receive such communications, you may opt-out by notifying DataStax at email@example.com.
- Use of the Cloud Services
- License. Subject to the provisions of these Terms (including payment of the applicable fees), DataStax grants You with a nonexclusive, nontransferable, nonsublicensable, terminable license to use the Cloud Services, including the right to access and use the hosted and managed Software, and the Console solely in connection with Your use of the Cloud Services.
- Restrictions. All rights in the Cloud Services, Software, and Console 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 Console; (2) assign, sublicense, transfer, lease, rent, resell, or otherwise distribute or make available the Software, Console, or Cloud Services to any third party; (3) use the Cloud Services for High Risk Activities or otherwise contrary to the Documentation, (4) use the Cloud Services in any manner contrary to applicable laws or for any unauthorized purpose, including in any manner which would infringe on the intellectual property or privacy rights of a third party, (5) use the Console or Cloud Services to create, transmit, process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State, (6) Use the Cloud Services on behalf of or for the benefit of any entity or person who is legally prohibited from using the Cloud Services, (7) use the Cloud Services or Console to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service; (8) reconfigure the Software without prior written consent from DataStax, (9) attempt to circumvent any security measures intended to restrict access to any portion of the Cloud Services or Cloud Environment, or (10) attempt to use the Cloud Services in a manner intended to improperly avoid fees. “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 or Cloud Services could lead to death, personal injury, or environmental damage.
- Suspension of Services. DataStax reserves the right to temporarily suspend Customer’s access to the Console and/or Cloud Services for scheduled maintenance periods, for which DataStax will endeavor to provide Customer with advanced notice in the Console, where it is reasonably possible for DataStax to do so.
- Fees. You will be billed and charged based on Your metered consumption of the Cloud Services (the “Metered Fee”), and the fees for any additional products or services selected or charges incurred (together with the Metered Fees, the “Fees”). Unless otherwise agreed to the parties in writing, all Fees are non-refundable, assessed in U.S. dollars and shall be paid without setoff or deduction.
- Consent to Payment Processing. For DataStax Astra Customers who register through the DataStax Console, any Fees will be processed by a third-party payment processing service (at this time Stripe). You consent to the use of such third party service, subject to the applicable third party terms (Stripe terms are available at https://stripe.com/checkout/legal), and to the transfer of Your bank or credit card information (including bank account or credit card holder’s name, bank account or credit card number, card expiration date, CVV number, and billing address) to such third party. Any terms governing the processing of Your payment data are between You and such third party, and you should consult the applicable third party terms.
For DataStax Astra Customers who register through the Google Cloud Platform Marketplace, Fees will be processed by Google, subject to your Google Cloud Platform or other agreement with Google.
- Recurring Charges. Fees for the Cloud Services are invoiced and charged based on your actual usage.
- DataStax Registered Users. For DataStax Astra Customers who register through DataStax’s Astra Console (astra.datastax.com), DataStax will automatically charge the bank account or credit card on-file in your account for the Metered Fees associated with Your usage during the prior calendar month (or other applicable period). These recurring charges are based on the pricing table available in the Console. Your account details within the Console will provide Your current balance. Recurring charges will be made at least monthly in any month where Fees are incurred, but may be made more often in your usage or Fees exceed certain thresholds.
- Google Cloud Platform Marketplace Registered Users. For DataStax Astra Customers who register through the Google Cloud Platform Marketplace, Your Google Cloud Platform account will be charged the Metered Fees associated with Your usage during the prior calendar month (or other applicable period as determined by Google). These recurring charges are based on the pricing table available on the Google Cloud Platform Marketplace. Your account details within the Console or GCP Console (if available) will provide Your current balance. Recurring charges will be made at least monthly in any month where Fees are incurred.
- Consent for Recurring Charges. By using the Cloud Services, you acknowledge that your Account will be subject to the above-described recurring charges. If you wish to withdraw your consent for future recurring charges, please update your account settings in the Console and cease your use of the Cloud Services.
- Taxes. You are responsible for any duties, customs fees, or taxes (other than DataStax’s income tax) associated with Your use of the Cloud Services, including any related penalties or interest (“Taxes”). You must pay the listed Fees without deduction for Taxes. If You are required by applicable law to withhold any amount from any payments then You must notify DataStax and pay DataStax the stated 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.
You are responsible for reviewing Your usage and Fee data within the Console. If you dispute or have any questions about Your usage or Fees, you should contact Support via the Console. To the fullest extent permitted by applicable law, You waive any and all claims relating to the Fees unless You submit a Fee dispute via the Console within 60 days after your account is charged. The foregoing does not waive any of Your rights with Your credit card issuer or bank, which are subject to Your agreement with such entity. Any Fee adjustments, credits or refunds are at the discretion of DataStax.
- Delinquencies. For DataStax Console registered Customers, if Your credit card expires or is cancelled or the charge is otherwise denied, DataStax will attempt to reprocess the charges. You are responsible for updating Your credit card or bank information to ensure payment can be made. 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.
- GCP Marketplace Billing Changes. If a Google Cloud Platform Marketplace registered Customer makes certain changes to Customer’s billing account details, Google may require DataStax to suspend or terminate Customer’s access to the Cloud Services. In such situations, DataStax will contact Customer at Customer’s GCP-registered email address and request that Customer confirm that Customer’s account and Database(s) should remain active. In order to avoid termination of Customer’s Database and loss of Customer Data, Customer must make a timely response to DataStax confirming that Customer’s Database(s) should remain active. If Customer does not respond to the DataStax email with a confirmation within 72-hours, Customer’s Database(s) will be temporarily moved to Parked status. If Customer still does not respond with a confirmation within 48 hours after the Database is Parked, Customer’s account will be suspended, and Customer’s Database(s) and all Customer Data contained therein will be deleted, subject to the existing DataStax Data Retention Policy.
- Proprietary Rights
- Proprietary Rights. The Cloud Services, Software, Documentation and Console are licensed, not sold. As between the parties, all intellectual property rights in the Cloud Services, Software, Documentation and Console shall remain with DataStax or its licensors.
- Federal Agency Users. The Software was developed solely at private expense and is commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto.
- Feedback. If Customer provides any suggestions or feedback regarding the Software, Console, Support, and/or Cloud Services, DataStax may use such information without obligation to Customer, and Customer hereby irrevocably assigns to DataStax all right, title, and interest in that feedback or those suggestions.
- Account Data and Customer Data
- Account Data. In connection with its provision of the Cloud Services, including for billing, usage reporting, and account provisioning purposes, DataStax may access, process, copy, archive, store, or otherwise modify Customer’s Account Data. Customer hereby grants DataStax the necessary rights for such access and modifications to the Account Data. DataStax may use aggregated and de-identified version of the Account Data for its internal business purposes.
- Customer Data. As between DataStax and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. In connection with its provision of the Cloud Services, DataStax may access, process, copy, archive, store, or otherwise modify the Customer Data. Customer hereby grants DataStax the necessary rights for such access and modifications to the Customer Data. DataStax may use aggregated and de-identified version of the Customer Data for its internal business purposes.
- DataStax Security Program. DataStax is subject to its own set of regulatory, contractual, and legal obligations. As a consequence of those obligations DataStax operates a security assurance program, the details of which are available at www.datastax.com/products/datastax-security-assurance. Upon request customers and prospective customers may inquire on the details of that program. The Customer should evaluate the DataStax security program and determine if their data can be stored in the Cloud Services.
- Data Restrictions. Customer agrees that: (i) DataStax is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Cloud Services should not be used to store, maintain, process or transmit protected health information (“PHI”) or payment cardholder information; (iii) the Cloud Services should not be used in any manner that would require DataStax, the Software, or the Cloud Services to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”) or Payment Card Industry Data Security Standard requirements; (iv) to the extent required under applicable law, Customer will obtain any consents from Customer’s end users that are required for Customer to pass the Customer Data to DataStax in order for DataStax to provide the Cloud Services. In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA.
- Privacy and Data Processing Policies. With respect to any Personal Data, and insofar as DataStax has access to Personal Data, DataStax shall comply with the DataStax Console Privacy and Data Processing Policy (with respect to any Account Data or other, billing or usage data) or the DataStax Astra Privacy and Data Processing Policy (with respect to Customer Data).
- Auto-Deletion for Free Tier. For any Free Compute Tier Database, DataStax reserves the right to delete any Database and all Customer Data contained therein if Customer has not accessed the Database or Console for a period of 30 days. Such Customer Data will be subject to the existing DataStax Data Retention Policy.
- Term & Termination
- Agreement Term. This Agreement will begin on the date you accept the Agreement and continue until the date on which the Agreement is terminated as specified herein.
- Termination for Breach. DataStax may suspend or terminate this Agreement, Your account and/or Your access to the Cloud Services, Console, Support and/or Cloud Environment without prior notice if: (i) You breach any obligation under the Agreement (including without limitation any payment obligation); (ii) if DataStax reasonably determines that the Customer Data or Customer’s use of the Cloud Services are fraudulent, violate or are likely to violate applicable laws or the terms of this Agreement, or otherwise may expose DataStax or its partners to liability to third parties; or (iii) You have ceased to operate in the ordinary course, make an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution proceeding.
- Termination for Convenience. DataStax may terminate this Agreement and Your use of and access to the Cloud Services for convenience by providing fifteen (15) days prior written notice to You. You may terminate this Agreement for convenience by discontinuing all use of the Cloud Services and providing DataStax with at least thirty (30) days prior notice via email at firstname.lastname@example.org.
- Effect of Termination. If the Agreement expires or is terminated, then: (1) the rights granted by one party to the other will immediately cease; provided, however, that DataStax may continue to access Your Cloud Environment and the Customer Data stored therein if deemed necessary by the parties; (2) all Fees owed by Customer are immediately due upon receipt of the final invoice; (3) Customer will immediately cease any and all access to the Cloud Services, Cloud Environment, Console, and Support; and (4) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
- 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 (a) 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; and (b) comply with a legal requirement or process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures inside or outside of the United States. DataStax may use Customer Data for internal business purposes only, including providing the Cloud Services and Support, and improving, testing and providing the DataStax products and services. “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. Confidential Information does not include (a) information submitted by Customer via a support ticket or other type of support request; or (b) usage data derived by DataStax from Customer’s use of the Cloud Services provided that such data is anonymized and aggregated.
- 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.
- Publicity. DataStax may identify Customer as a customer of the DataStax Cloud Services, provided that any such statements shall conform with any trademark use guidelines provided by Customer. Each party must obtain the other party’s advance consent to any press release relating to the Customer’s use of the Cloud Services.
- Authority. Each party warrants that it has full power and authority to enter into this Agreement.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, NEITHER DATASTAX NOR ITS SUPPLIERS PROVIDE ANY OTHER WARRANTIES REGARDING THE CLOUD SERVICES, CONSOLE, SOFTWARE, CLOUD ENVIRONMENT, DOCUMENTATION, OR SUPPORT, AND TO THE FULLEST EXTENT PERMITTED BY LAW DATASTAX 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, TITLE, 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. THE SOFTWARE AND CLOUD SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. THE CLOUD SERVICES, CONSOLE, SOFTWARE, CLOUD ENVIRONMENT, AND SUPPORT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DATASTAX EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE CLOUD SERVICES, CONSOLE, SOFTWARE, CLOUD ENVIRONMENT, AND/OR SUPPORT WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE CLOUD SERVICES, CONSOLE, SOFTWARE, CLOUD ENVIRONMENT, SUPPORT OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
- Customer Data Warranty. Customer warrants that it has obtained any necessary consents from its end users that are required for Customer to provide the Customer Data to DataStax and grant the rights to DataStax specified herein. Customer further warrants that the Customer Data and Customer’s transfer of the Customer Data to DataStax complies with all applicable laws and do not violate the intellectual property or privacy rights of any third party.
Customer shall defend or settle at its sole expense any claim brought against DataStax, its directors, officers, or employees by a third party arising out of: (i) Customer’s use of or access to the Cloud Services, Software, Support, Console or Cloud Environments; (ii) any breach by Customer of any term or condition of this Agreement, including without limitation, any breach of Sections 2.7 (Registration), 3.2 (Restrictions), 6 (Account Data and Customer Data), 8 (Confidential Information), and 9.3 (Customer Data Warranty); (iii) any negligent, willful or unlawful conduct by Customer or its agents; and/or (iv) any violation of third party rights (including without limitation any intellectual property rights or privacy rights) arising out of or relating to the Customer Data.
- Limitation of Liability
To the fullest extent permitted by applicable law, in no event shall DataStax or its suppliers be liable for damages other than direct damages, including 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 statute, contract, tort, strict liability, indemnity 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 Customer under this Agreement exceed the greater of the total amounts paid by Customer to DataStax under this Agreement during the 12 months prior to the date the claim arises. The liability limitations in this paragraph (and otherwise in the Agreement) do not limit or exclude damages for bodily injury or death or other damages that under applicable law cannot lawfully be limited or excluded.
During the term of this Agreement, DataStax will maintain at least the following levels of insurance coverage: (1) general commercial liability of $1 million per occurrence, $2 million aggregate for bodily injury and property damage; (2) automotive, hired and non-owned liability of $1 million for bodily injury and property damage; (3) errors and omissions of $2 million per claim and aggregate limit; and (4) workers’ compensation meeting statutory limits.
- 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. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Schedules), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates. Any such assignment shall be effective upon payment of all amounts then due.
- Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order: any applicable ordering document, these Terms, and the terms located at any exhibit or URL referenced in these Terms.
- Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement are hereby incorporated by this reference. After the Effective Date, DataStax may provide Customer with an updated URL in place of any URL in this Agreement. Customer agrees that its purchase of the Cloud Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by DataStax, including any roadmaps or target release dates, with respect to future functionality or features.
- 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 Cloud Services and Support, and any underlying Software or technology. In particular, but without limitation, the Cloud Services and the Software may not, in violation of any laws, be accessed, exported or re-exported: (1) in/into any U.S. embargoed country; or (2) by/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.
- Force Majeure. Neither party will be liable for failure or delay in its performance under this Agreement to the extent caused by circumstances beyond its reasonable control. DataStax reserves the right to suspend the Cloud Services and/or the provision of Support to comply with applicable laws.
- Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without regard to its conflict of laws principles, and each party hereby consents to the jurisdiction of the federal or state courts of Santa Clara County, California, USA. Each party hereby waives any right to jury trial in any litigation in any way arising out of or related to this Agreement.
- 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.
- No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
- Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
- 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.
- Survival. The following sections will survive any expiration or termination of this Agreement: Sections 4 (Payment), 3.2 (Restrictions), 6.4 (Data Restrictions), 5 (Proprietary Rights), 7.4 (Effect of Termination), 8 (Confidentiality), 11 (Limitation of Liability), and 13 (Miscellaneous).
- Updates. Except as expressly provided herein, no modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. DataStax may make changes to the Agreement from time to time. DataStax will post the updated Agreement and will update the “Last Updated Date” at the top, as well as provide Customer with a notification within the Console when there are any substantive updates to the Agreement. By continuing to use the Cloud Services, Console, or Support after DataStax has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms.
The following terms shall apply if Customer is an EU individual consumer.
Limitation of Liability. Notwithstanding the terms in Section 11, where Customer is a consumer, in no event shall DataStax be liable for any loss which is not foreseeable or for any business losses such as loss of profit, loss of business or loss or contracts on any theory of liability, whether in statute, contract, tort (including negligence), strict liability, indemnity or otherwise, even if advised of the possibility of such damages. The liability limitations and exclusions in this Section 11 (and otherwise in the Agreement) do not limit or exclude damages for personal injury or death caused by negligence, fraud or other damages that under applicable law cannot lawfully be limited or excluded.
Governing Law. This Agreement is to be construed in accordance with and governed by the laws of England without regard to its conflict of laws principles, and each party hereby consents to the jurisdiction of the courts of England and Wales. Each party hereby waives any right to jury trial in any litigation in any way arising out of or related to this Agreement.
Where Customer is a consumer, Customer shall also be entitled to commence proceedings in their local courts.