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DataStax Managed Cloud Subscription Terms
Last Updated Date:
November 30, 2017
These DataStax Managed Cloud Subscription Terms (“Subscription Terms”) are part of a legal agreement (the “Agreement”) between the person or entity agreeing to these terms (“Customer”) and DataStax, Inc., a Delaware corporation, and includes these Subscription Terms, any terms expressly incorporated herein by reference, and any terms in a fully executed ordering document that incorporates these Subscription Terms (an “Order Schedule”). This Agreement is effective as of the date the Order Schedule is fully executed (the “Effective Date”).
1.1. Subscription Services. Subject to the provisions of these Subscription Terms, DataStax will provide certain managed Software services (“Managed Cloud Services”) for the number of Nodes of the Software specified on an Order Schedule for the period specified in the applicable Order Schedule (the “Subscription Period”). Managed Cloud Services are further described at www.datastax.com/dmc-service-description. The Managed Cloud Services will be provided in (i) the cloud infrastructure environment selected by Customer and specified on the Order Schedule (the “Cloud Environment”) and (ii) accordance with the Documentation. “Software” means the DataStax Enterprise database software and related tools. “Node” means a single cloud instance that runs the DataStax Enterprise software. “Documentation” means the materials available at docs.datastax.com, as amended from time to time. Managed Cloud Services include technical support which will be provided in accordance with the terms set forth in the DataStax Managed Cloud Support Policy, as amended from time to time (“Support.”)
1.2 Enroll/Register; Monitoring Console. DataStax makes available monitoring and reporting functionality for the Software as installed in the Cloud Environment in the management console (the “Console”). Use of the Console may be subject to separate license terms. Requests for Support may be logged via the Console or through an alternative methodology identified by DataStax. Customer is solely responsible for enabling and disabling its authorized Console users and for all activity occurring in its Console account.
1.3. Requirements.Customer will provide DataStax with access to the Cloud Environment in accordance with the specifications set forth in the Console or Documentation. Customer agrees that DataStax may act on Customer’s behalf to add additional Nodes when required to meet uptime and SLA requirements, and DataStax will make commercially reasonable efforts to notify Customer of such actions within thirty (30) days. Customer will provide all accurate and complete information as required in the Console. Customer will enable DataStax to provide Managed Cloud Services on the most current version of the Software within a reasonable period following the release of an updated version of such Software.
1.4. Non-Production Environment.If set forth on an Order Schedule, DataStax will provide Managed Cloud Services for non-production Nodes. The Service Level Agreement will not apply to such non-production Nodes.
1.5 Uptime Commitment. During the Subscription Period, the Software will provide the Managed Cloud Services in accordance with the “Service Level Agreement” located in the DataStax Managed Cloud Service Level Agreement, which is hereby incorporated by reference. DataStax’s system logs and other records shall be determinative for verifying service levels.
1.6. Modifications; Discontinuation of Service. DataStax may make modifications to the Managed Cloud Services or components of the Managed Cloud Services, including the Software, from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. DataStax reserves the right to discontinue offering the Managed Cloud Services at the conclusion of Customer’s then-current Subscription Period.
1.7 Cloud Environment. Customer’s use of the Cloud Environment is subject to the fees and terms presented to Customer by the third party provider of such Cloud Environment. Customer agrees to pay any such applicable fees for the Cloud Environment and comply with the applicable then-current terms for such Cloud Environment. DataStax has no liability or responsibility for the Cloud Environment, including without limitation, its availability or security, and Customer agrees to seek recourse exclusively from the provider of the Cloud Environment in connection therewith. Customer acknowledges and agrees that certain Cloud Environments may provide different capabilities applicable to the Software, and DataStax may adjust the Managed Cloud Services accordingly.
2. Professional Services Engagements
DataStax provides all professional services engagements related to the Managed Cloud Services in accordance with to the Service Terms at www.datastax.com/service-terms, as updated or amended from time to time.
3.1. Fees.Customer will pay all fees specified in the Order Schedule for Managed Cloud Services (“Subscription Fees”) and professional services (together with the Subscription Fees, “Fees”). If the due date is not otherwise specified in the Order Schedule, all Fees are due 30 days from the invoice date. All Fees are non-refundable and non-cancelable. Unless otherwise specified in the Order Schedule, all Fees are in U.S. dollars and shall be paid without setoff or deduction. Unless otherwise specified in the applicable Order Schedule, upon renewal of the Subscription Period, the Subscription Fees will be the then-current list price for Managed Cloud Services.
3.2. Taxes.Customer is responsible for any duties, customs fees, or taxes (other than DataStax’s income tax) associated with the Managed Cloud Services and professional services, 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.
3.3. 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. In the event that Customer revokes DataStax’s access to the Cloud Environment or does not maintain availability of the Cloud Environment, Customer’s payment obligation will not be suspended and DataStax will be entitled to all Fees set forth on an Order Form in accordance with the payment terms set forth herein.
3.4Bursting. Customer agrees that DataStax may enable Customer to exceed the number of Nodes for which Customer has paid Subscription Fees without charge, provided that if such use is repeated or excessive, as determined by DataStax, DataStax may invoice Customer, and Customer will pay for, the number of required additional Nodes, prorated over the remaining Subscription Period. In no event shall Customer’s no-charge bursting use exceed 50 percent of the contracted Node amount for the Subscription Period, and any no-charge bursting shall be limited to thirty (30) total days within the Subscription Period. If Customer declines to purchase additional Nodes as recommended by DataStax or otherwise refuses to cooperate with DataStax to increase its Node count, the Service Level Agreement shall not apply to the Customer environment in which the additional Nodes were recommended.
All rights in the Software, Console, and Managed Cloud Services 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, Console, or any component thereof; (2) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Software or Console, or Managed Cloud Services to any third party; (3) use the Software for High Risk Activities or otherwise contrary to the Documentation; (4) use the Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service; (5) reconfigure the Software without prior written consent from DataStax, or (6) use the included ODBC driver to connect to other distributions of the components of the Software. “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. The Software includes the third party software and material specified at www.datastax.com/thirdpartysoftware (“Third Party Software”).
5. Proprietary Rights; Data
5.1. Managed Cloud Services.The Software is licensed, not sold. Subject to the provisions of these Subscription Terms, DataStax grants Customer a worldwide, nonexclusive, nontransferable, nonsublicensable, terminable license to access the Software provided with the Managed Cloud Services during the Subscription Period, subject to any license parameters specified in the applicable Order Schedule. As between the parties, all intellectual property rights in the Software, Console, and Managed Cloud Services shall remain with DataStax or its licensors. Software and Managed Cloud Services may be updated at any time. If DataStax materially reduces the Managed Cloud Services, if practicable, DataStax will provide reasonable notice of no less than six months prior notice to Customer.
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, or Managed 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.
5.4. Customer Data. As between DataStax and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer will not expose sensitive or regulated Customer Data in unencrypted format to DataStax. Customer agrees that: (i) DataStax is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Software may not be used to store, maintain, process or transmit protected health information (“PHI”); (iii) the Managed Cloud Services will not be used in any manner that would require DataStax, the Software, or the Managed Cloud Services to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”); (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 to provide the Managed Cloud Services. In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA. Customer hereby authorizes and consents to DataStax access, process, and store Customer Data solely as required to provide the Managed Cloud Services. “Customer Data” means all electronic data or information submitted to and stored in the Software within the Cloud Environment.
6. Term & Termination
6.1. Agreement Term.This Agreement will begin on the Effective Date and continue until the later of the following: (1) the expiration or completion of all Subscription Periods under any open Order Schedules; or (2) the date on which the Agreement is terminated as specified herein. Each Subscription Period will automatically renew for successive one-year periods (or such longer time as may be specified on an Order Schedule) unless either party gives at least ninety (90) days written notice to the other party prior to the end of the then-current Subscription Period.
6.2. Termination for Breach.Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure that breach within 30 days after receipt of written notice.
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; provided, however, that DataStax may continue to access the Customer Cloud Environment if deemed necessary by the parties; (2) all Fees owed by Customer are immediately due upon receipt of the final invoice; (3) Customer will delete the Software; and (4) 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. DataStax may use Customer Data for internal business purposes only, including providing Support, and improving, testing and providing the Managed Cloud 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 Software and Managed Cloud Services 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 the Managed 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 Managed Cloud Services.
8.1. Services Warranty.DataStax warrants that it will perform the Managed Cloud Services with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. If the Managed Cloud Services fail to conform to the foregoing warranty, as Customer’s sole and exclusive remedy for such failure, and provided that Customer provides DataStax with written notice of such breach within thirty (30) days of occurrence, DataStax will promptly attempt to re-perform the applicable Managed Cloud Services or at DataStax’s option refund any Subscription Fees paid attributable to the non-conforming Managed Cloud Services. The foregoing warranty does not apply to Managed Cloud Services provided pursuant to Section 1.4 (Non-Production Environment).
8.2. Authority. Each party warrants that it has full power and authority to enter into this Agreement.
8.3.EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NEITHER DATASTAX NOR ITS SUPPLIERS PROVIDE ANY OTHER WARRANTIES REGARDING THE SOFTWARE, THE MANAGED CLOUD SERVICES OR THE PROFESSIONAL SERVICES, 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 IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. THE MANAGED CLOUD SERVICES, PROFESSIONAL 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 MANAGED CLOUD SERVICES OR SOFTWARE 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 MANAGED CLOUD SERVICES, SOFTWARE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
9.1. Indemnity by DataStax.DataStax shall defend or settle at its sole expense any claim brought against Customer, its directors, officers, or employees by a third party alleging that the Software as installed by DataStax in the Cloud Environment infringes or misappropriates any patent, copyright, or trade secret of a third party, and DataStax shall pay all damages finally awarded or costs of settlement of the claim provided that Customer: (1) provides DataStax prompt written notice of any claim; (2) gives DataStax sole control of the defense and settlement of the claim but may not settle any claim unless such settlement fully releases Customer from any liability; and (3) provides all reasonable assistance in connection with the claim.
9.2. Injunctions.If Customer’s rights to use the Software are, or in DataStax’ opinion could be, enjoined due to an indemnified claim, then DataStax may, at its sole option and expense: (1) procure for Customer the right to continue using the Software according to the terms of this Agreement, (2) modify the Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (3) if neither of the foregoing options is commercially reasonable, terminate the Agreement and refund any prepaid but unused portion of the Subscription Fees.
9.3. Exclusions.The indemnity provided by DataStax under this Agreement does not extend to claims arising from or relating to: (1) use of the Software pursuant to Section 1.4 (Non-Production Environment); (2) modifications to the Software not provided by or approved in writing by DataStax; (3) use of the Software in combination with any data, software, or hardware not provided by DataStax to the extent the alleged infringement would not have occurred without the combination; (4) Third Party Software; (5) use of the Software in violation of this Agreement, or (5) allegedly infringing activities that continue after DataStax has informed Customer in writing of and made available to Customer at no additional charge a substantially similar version of the Software that would have avoided the alleged infringement.
9.4. Remedy.This Section 6 states Customer’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind and is subject to the terms of the section titled “Limitation of Liability.”
9.5. 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 Customer’s misuse of the Software or the Managed Cloud Services, including in breach of Section 5.4 (“Customer Data”).
10. 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 during the 12 months prior to the date the claim arises, or ten thousand US dollars. 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.
12.1. Affiliates.DataStax and Customer agree that Affiliates of Customer may acquire Managed Cloud Services 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.
12.2. 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.
12.3. 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, these Subscription Terms, and the terms located at any URL referenced in these Subscription Terms.
12.4. 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 a Subscription 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.
12.5. 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 Managed Cloud Services and Software. 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.
12.6. 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 Managed Cloud Services to comply with laws.
12.7. 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.
12.8. 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.
12.9. No Third-Party Beneficiaries.This Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.10. 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).
12.11. 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.
12.13. 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.
12.14. 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 terms located at a URL referenced in this Agreement, including these Subscription Terms (collectively, the “URL Terms”) from time to time. DataStax will post the amended terms and will update the “Last Updated Date” at the top. By continuing to use the Managed Cloud Services, Console, or Software after DataStax has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify DataStax within 30 days of the applicable Last Updated Date. If Customer notifies DataStax as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription Period. If the Subscription Period is renewed, it will do so under the updated URL Terms.