DataStax Beta Program Terms

These Beta Program Terms (“Beta Terms”) are part of an agreement (the “Agreement”) between  between the person or entity agreeing to these terms (“Customer” or “You”), and DataStax, Inc., a Delaware corporation. The Agreement includes all of the applicable terms stated in these Beta Terms, the DataStax Apollo Terms attached hereto as Exhibit A (the “DataStax Apollo Terms”), and any other documents or terms expressly incorporated into this Agreement by reference. In interpreting this Agreement, these Beta Terms, the DataStax Apollo Terms, and any other documents or terms shall take precedence in that order in the event of a conflict, to the extent of the conflict. These Beta Terms are effective as of the date Customer accepts this Agreement.

1. Beta Service

Subject to the terms of the Agreement, you may use the Beta Service solely for beta testing purposes, and as further set out herein. “Beta Service” means the limited-release beta DataStax Apollo offering made available to you by DataStax under the Early Adopter Program.  Unless otherwise provided by DataStax, your use of the Beta Service is limited to one Database of not more than four Capacity Units (as defined below in the DataStax Apollo Terms) DataStax reserves the right, in its sole discretion, to terminate the Beta Service under these Beta Terms at any time on written notice to you.  In connection with your use of the Beta Service, you will not store any Regulated Data in the Beta Service.  “Regulated Data” means (i) any data that constitutes personal information under any applicable law, rule or regulation, (ii) Protected Health Information as defined under the Health Insurance Portability and Accountability Act of 1996 or (iii) any other data that if inadvertently disclosed, would trigger data breach notification laws.  You acknowledge and agree that DataStax may delete any data stored by the Beta Service at any time in its sole discretion and will delete data stored by the Beta Service every 72 hours.  DataStax reserves the right at its sole discretion to limit the Capacity Units and Compute Tier used by Customer for the Beta Service.

2. Beta Testing

DataStax will at its sole discretion provide technical resources to assist with questions or issues with the Beta Service. You agree to test the Beta Service and provide DataStax with development and related data including comments, notes, bug reports and feature comments with sufficient documentation, samples, code error, screen shots, etc., to help DataStax evaluate and improve the Beta Service user interface, features, functionality, and/or product (“Development Data”). As part of the provision of Development Data, you agree to have your personal information collected by DataStax through the creation of Beta Service accounts that are used to access any DataStax demonstrated products. You also agree to have your user demonstration sessions recorded and monitored in order to collect usage data and related information. 

During your use of the Beta Service, DataStax may also use Google Analytics, a web analytics service, including Google Analytics UserID tracking.  Google Analytics uses cookies to help DataStax analyse how you use the Beta Service. The information generated by cookies about your use of the Beta Service (including your IP address) will be transmitted to and stored by a Google server in the United States.  Google uses this information for the purpose of evaluating your use of the Beta Service, compiling reports on website activity related to the Beta Service for our operators and providing them with other services relating to website activity and internet usage.  The UserID  associates your cross-session activity and related engagement data with a unique ID, which is also shared with Google in pseudonymised form.  You hereby consent to the use of Google Analytics and UserID Tracking during the testing sessions.

DataStax welcomes your suggestions and feedback. If you provide any suggestions, feedback, or improvements to the Beta Service, DataStax will own and have the right to use and have others use such suggestions, feedback, and improvements for any purpose.

Upon your written approval, you agree to provide a press release, case study, and references for the Beta Service and/or the features and functionality you have tested in the Beta Service.   All information regarding the Beta Service and your experience with it is Confidential Information of DataStax. You shall not blog or provide any external information to anyone outside DataStax regarding the Beta Service.

3. Future Generally Available Releases

Statements concerning the production release of any DataStax product are by nature forward-looking statements that involve a number of uncertainties and risks and are subject to change. Such statements are intended to reflect the current views of DataStax with respect to the production release of DataStax software or service and may ultimately be updated with different or contrary statements. Factors that could cause actual events or results to differ materially include shifts in customer demand, rapid technology changes, competitive factors, and unanticipated delays in scheduled product availability.  There is no guarantee that a feature released in the Beta Service will ever become generally available. It may remain Beta Service feature indefinitely, be shutdown, or be combined with other features. Some the Beta Service features may eventually become generally available, but there is no fixed schedule for this.

4. No Warranty

The Beta Service is not intended for production use, has not been fully certified for production workloads, and therefore may contain bugs and other functional issues. THE BETA SERVICE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OR TECHNICAL SUPPORT.

There is no charge for your participation in this Early Adopter Program.

Exhibit A

DataStax Apollo Terms

Last Updated October 9, 2019

These DataStax Apollo 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 Apollo Terms, any terms expressly incorporated herein by reference.   This Agreement applies to Your use of the Cloud Services

PLEASE READ THESE DATASTAX APOLLO TERMS CAREFULLY. BY CLICKING THE BOX INDICATING ACCEPTANCE OR ACCESSING THE CLOUD SERVICES, 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 THE CLOUD SERVICES.

1. Definitions

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 Apollo, including DataStax Apollo obtained through the DataStax Constellation site (constellation.datastax.com) or the Google Cloud Platform Marketplace, but Cloud Services do not include any technical support.
Compute Tier” or “Compute Size” means the processing tier selected by Customer for the Capacity Unit(s) within a Database. ,
Console” means the applicable DataStax deployment, configuration, monitoring and reporting platform for the Cloud Services.  
Customer Data” means any and all electronic data or information submitted, stored, processed, created, or modified within the Cloud Services and provided by Customer to DataStax or otherwise processed by DataStax in connection with Custoner’s Database.
Database” means a Customer-designated cluster comprised of one or more Capacity Unit(s) that communicate with one another via the Gossip protocol. Within a Database, all Capacity Units must be the same Compute Tier, and once selected for a Database, Customer cannot upgrade or downgrade the Database’s Compute Tier.
Documentation” means the Cloud Services documentation and other materials available at docs.datastax.com, as amended from time to time. 
Software” means the DataStax software made available to You as part of, or used to provide, the Cloud Services.

2. Cloud Services

2.1. The Cloud Services will be provided in accordance with the Documentation, and in the cloud environment as selected by Customer from available options (“the Cloud Environment”). 

2.2. 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.

2.3. Modifications; Discontinuation of Service.  You agree and understand that DataStax may make modifications, including discontinuation of such Services or components, to the Cloud Services or components of the Cloud Servicesfrom time to time and will use commercially reasonable efforts to notify Customer of any material modifications. 

2.4. 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.

2.5. Registration. In order to access the Cloud Services You must complete the registration process or login using your Google Cloud Platform credentials (for DataStax Apollo on Google Cloud Platform users). The registration data provided to DataStax is Your “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.

2.6. By providing Your Account Data, you hereby consent to receive telephone, email, SMS, 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 privacy@datastax.com.

3. Use of the Cloud Services

3.1. License. Subject to the provisions of these Terms, 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 Console solely in connection with Your use of the Cloud Services.

3.2. 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 Cloud Services to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service; (6) reconfigure the Software without prior written consent from DataStax, (7) use the included ODBC driver to connect to third party components, (8) attempt to circumvent any security measures intended to restrict access to any portion of the Services or Software, or (9) 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. The Software includes the third party software and material specified at www.datastax.com/thirdpartysoftware (“Third Party Software”).

4. Reserved

5. Proprietary Rights

5.1. Proprietary Rights.  The Software and Cloud Services are licensed, not sold.   As between the parties, all intellectual property rights in the Software, Console and Cloud Services shall remain with DataStax or its licensors. 

5.2. 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.

5.3. Feedback.  If Customer provides any suggestions or feedback regarding the Software, Console 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.

6. Customer Data

6.1. 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 and Customer’s set-up of the Cloud Services.  Customer hereby grants DataStax the necessary rights for such access and modifications to the Customer Data and Customer’s Cloud Services set-up.  Customer will not use the Cloud Services to store any Regulated Data (as further described in the Beta Terms above).

6.2. Customer hereby authorizes and consents to DataStax’s accessing, processing, and storing of Customer Data as required to provide the Cloud Services, improve the Cloud Services and create new products and functionality.  DataStax may use aggregated and de-identified version of the Customer Data for its internal business purposes.

7. Term & Termination

7.1. 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.

7.2. Termination for Breach.  DataStax may suspend or terminate this Agreement, Your account and/or Your access to the Cloud Services, Console and/or Cloud Environment without prior notice if you breach any obligation under the Agreement (including without limitation any payment obligation) or 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.

7.3. Termination for Convenience.  DataStax may terminate this Agreement and your use of and access to the Cloud Services for convenience by providing written notice to You. 

7.4. Effect of Termination.  If the Agreement expires or is terminated, then: (1) the rights granted by one party to the other will immediately cease; 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, and Console; and (4) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.

8. Confidentiality

8.1. 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.  DataStax may use Customer Data for internal business purposes only, including providing the Cloud Services, 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 feedback or 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.

8.2. 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.

8.3. 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 DataStax Cloud Services.

9. Warranties

9.1. Authority.  Customer warrants that it has full power and authority to enter into this Agreement. 

9.2. 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.

9.3. Disclaimer of Warranties. NEITHER DATASTAX NOR ITS SUPPLIERS PROVIDE ANY OTHER WARRANTIES REGARDING THE SOFTWARE, THE CLOUD ENVIRONMENT, THE CLOUD SERVICES, OR THE CONSOLE, 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 ENVIRONMENT, CLOUD SERVICES, SOFTWARE, AND CONSOLE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  DATASTAX EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE CLOUD ENVIRONMENT, CLOUD SERVICES, SOFTWARE, AND/OR CONSOLE 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 ENVIRONMENT, CLOUD SERVICES, SOFTWARE, AND CONSOLE  OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

10. Indemnity

10.1. 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 the Cloud Services, Software, Console or Cloud Environments; (ii) any breach by Customer of any term or condition of this Agreement, including without limitation, any breach of Sections 2.5 (“Registration”), 3.2 (“Restrictions”), 6 (“Customer Data”), 8.1 (Confidential Information), and 9.2 (“Customer Data 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 the Customer Data.

11. Limitation of Liability

11.1. 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.

11.2. 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 or $100.  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.

12. Insurance

12.1. 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.

13. Miscellaneous

13.1. 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.

13.2. 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.

13.3. 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 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.

13.4. 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 Cloud Services 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.

13.5. 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 Cloud Services to comply with laws.

13.6. 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.

13.7. 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.

13.8. No Third-Party Beneficiaries.  This Agreement does not confer any benefits on any third party unless it expressly states that it does.

13.9. 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).

13.10. 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.

13.11. Survival.  The following sections will survive any expiration or termination of this Agreement:  Payment, Restrictions, Proprietary Rights, Effect of Termination, Confidentiality, Limitation of Liability, and Miscellaneous.

13.12. 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, 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 or Console,after DataStax has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms.