These DataStax Desktop Terms are part of an agreement (“Agreement”) between the person or entity agreeing to these terms (“Customer” or “You”) and DataStax, Inc., (“DataStax”) a Delaware corporation, and includes these DataStax Desktop Terms, any terms expressly incorporated herein by reference. This Agreement applies to Your use of DataStax Desktop.
PLEASE READ THESE DATASTAX DESKTOP TERMS CAREFULLY. BY CLICKING THE BOX INDICATING ACCEPTANCE OR ACCESSING DATASTAX DESKTOP, YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND AGREE TO THEM. IF YOU ARE AGREEING TO THESE TERMS 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. 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 DATASTAX DESKTOP.
1.1. “Apache Cassandra” means the open source software called Apache Cassandra® licensed by the Apache® Software Foundation (ASF) as made available at http://cassandra.apache.org/download/. Apache and Apache Cassandra are the trademarks of The Apache Software Foundation, and are not owned by DataStax.
1.2. “DataStax Enterprise”means the DataStax Enterprise software offering provided by DataStax under this agreement.
1.3. “DataStax OpsCenter” means the DataStax OpsCenter offering provided by DataStax under this Agreement.
1.4.“DataStax Studio” means the DataStax Studio offering provided by DataStax under this Agreement.
1.5. “Software” means the Apache Cassandra, DataStax Enterprise, DataStax OpsCenter and/or DataStax Studio software made available to Customer by DataStax under this Agreement.
2. DataStax Desktop Product
2.1. Modifications; Discontinuation of Product. You agree and understand that DataStax may make modifications, including discontinuation, to DataStax Desktop or components of DataStax Desktop from time to time.
2.2. Compliance with Applicable Laws. Your use of DataStax Desktop must comply with all applicable laws, rules and regulations.
3. Use of DataStax Desktop
3.1. License. Subject to the provisions of this Agreement, DataStax grants You with a nonexclusive, nontransferable, nonsublicensable, terminable license to use DataStax Desktop, solely for internal, non-production use.
3.2. Apache Cassandra Software License. The Apache Cassandra Software made available to Customer by DataStax under this Agreement is subject to the Apache License, version 2.0.
3.3. No Support. Unless Customer has purchased a separate subscription to DataStax Enterprise and/or DataStax Luna, no right to receive live technical support for DataStax Desktop or the Software is granted. Customer may have access to DataStax Academy and/or the DataStax community forums, subject to the applicable terms and conditions for such resources. Additionally, at DataStax’s sole discretion, DataStax may make available updates, upgrades, patches, bug fixes, and/or new version releases to the Software provided in connection with DataStax Desktop.
3.4. Restrictions. All rights in DataStax Desktop and 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 DataStax Desktop; (2) assign, sublicense, transfer, lease, rent, resell, or otherwise distribute or make available the Software, or DataStax Desktop to any third party; (3) use DataStax Desktop or the Software for High Risk Activities or otherwise contrary to the Documentation, (4) use DataStax Desktop or the Software 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 DataStax Desktop or the Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service; (6) attempt to circumvent any security measures intended to restrict access to any portion of DataStax Desktop, or (7) attempt to use the DataStax Desktop 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 could lead to death, personal injury, or environmental damage.
4. Proprietary Rights
4.1. Proprietary Rights. The DataStax Desktop and the Software are licensed, not sold. As between the parties, all intellectual property rights in DataStax Desktop and the Software shall remain with DataStax or its licensors.
4.2. Federal Agency Users. DataStax Desktop 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.
If Customer provides any suggestions or feedback regarding the DataStax Desktop, 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.
6. Term & Termination
6.1. 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.
6.2. Termination for Breach. DataStax may suspend or terminate this Agreement, Your account and/or Your access to DataStax Desktop and/or the Software without prior notice if you breach any obligation under the Agreement or if DataStax reasonably determines that Customer’s use of DataStax Desktop or the Software is fraudulent, violates or is likely to violate applicable laws or the terms of this Agreement, or otherwise may expose DataStax or its partners to liability to third parties.
6.3. Termination for Convenience. DataStax may terminate this Agreement and your use of and access to DataStax Desktop for convenience by providing written notice to You.
6.4. Effect of Termination. If the Agreement expires or is terminated, then: (1) the rights granted by one party to the other will immediately cease; (2) Customer will immediately cease any and all access to the DataStax Desktop; and (3) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
7.1. 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 (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. “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 provided by Customer on a DataStax community forum or other type of feedback or support request; or (b) usage data derived by DataStax from Customer’s use of DataStax Desktop provided that such data is anonymized and aggregated.
7.2. 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.
7.3. Publicity. DataStax may identify Customer as a customer of DataStax Desktop, 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 DataStax Desktop.
8. Warranties/Disclaimer of Warranties
8.1. Authority. Customer warrants that it has full power and authority to enter into this Agreement.
8.2. Disclaimer of Warranties. NEITHER DATASTAX NOR ITS SUPPLIERS PROVIDE ANY OTHER WARRANTIES REGARDING DATASTAX DESKTOP, 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. DATASTAX DESKTOP AND THE SOFTWARE ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. DATASTAX DESKTOP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DATASTAX EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF DATASTAX DESKTOP 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 DATASTAX DESKTOP IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
9.1. Customer Indemnity. 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 DataStax Desktop; (ii) any breach by Customer of any term or condition of this Agreement, 3.4 (“Restrictions”), 7.1 (Confidential Information), and 8.1 (Warranty); (iii) and 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 Customer use of DataStax Desktop or the Software..
10. Limitation of Liability
10.1. 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.
10.2. To the fullest extent permitted by applicable law, in no event shall the total liability of DataStax to Customer under this Agreement exceed $1,000. 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.
11.1. 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. 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.
11.2. 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.
11.3. 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 DataStax Desktop 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.
11.4. 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 DataStax Desktop Services and any underlying Software or technology. In particular, but without limitation, the DataStax Desktop 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.
11.5. 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 DataStax Desktop services to comply with laws.
11.6. 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.
11.7. 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.
11.8. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
11.9. 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).
11.10. 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.
11.11. Survival. The following sections will survive any expiration or termination of this Agreement: Restrictions, Proprietary Rights, Effect of Termination, Confidentiality, Limitation of Liability, and Miscellaneous.
11.12. 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, when there are any substantive updates to the Agreement. By continuing to use the DataStax Desktop after DataStax has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms.