Pass-Through Sublicensing EULA
Partner Terms · Last Updated Date:
May 17, 2018
This Sublicensing EULA (“EULA”) states the terms under which an end user (“Customer”) may obtain and use Software and Support, (collectively “Products”) from a reseller that has been authorized by DataStax, Inc., a Delaware corporation (“DataStax”), to grant sublicenses under this EULA. By agreeing to the terms of this EULA, Customer agrees that this EULA is hereby incorporated into the agreement between Customer the authorized reseller (“Partner”) under which Partner makes the Products available to Customer (the “Agreement”).
“Software” means DataStax software, data and other and materials made available to Customer by Partner, including error corrections, modifications and updates to such items, and including the Documentation. “Software” does not include, and DataStax does not warrant or support, software obtained from any source other than DataStax. “Documentation” means the materials available at www.datastax.com/docs, as amended from time to time. “Support” means the services described in the DataStax Support Policy available at www.datastax.com/support-policy, as amended from time to time.
1.1. Subscription. DataStax provides Support and licensing of its Software as a combined subscription (a “Subscription”) for a defined time period (the “Subscription Period”). The Subscription Period, and any other Subscription parameters, are specified in a fully-executed ordering document between Customer and Partner (an “Order”).
1.2. Subscription License. If Customer has purchased a Subscription, then subject to this EULA, DataStax grants Customer a worldwide, nonexclusive, nontransferable, nonsublicensable, terminable license to use the Software during the Subscription Period subject to any license parameters specified in the Order (a “Subscription License”).
1.3. Support. If Customer has purchased a Subscription, DataStax will provide Customer with Support of the Software during the Subscription Period. DataStax may require that Customer obtain all or part of Support from or through Partner.
1.4. No-Fee License. If Customer has not purchased a Subscription, then subject to this EULA, DataStax grants Customer a royalty-free, worldwide, nonexclusive, nontransferable, nonsublicensable, terminable license to use the Software, solely for non-production purposes (a “No-Fee License”). Customer has no right to Support under a No-Fee License.
2. Scope of Use
2.1 Restrictions. All rights in the Software not expressly granted under this EULA are reserved to DataStax or its licensors. Without limiting the foregoing (and subject to the terms applicable to Third Party Software and except to the extent such restriction is expressly prohibited by applicable law), Customer shall not, and shall not permit others under its control to (1) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Software or any component thereof; (2) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Software to any third party; (3) use the Software for High Risk Activities or otherwise contrary to the Documentation; (4) use the Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service; or (5) 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”). Customer’s license to use the Software is subject to the applicable product-specific license terms available at: https://www.datastax.com/terms/product-specific-license-terms
2.2. Increased Volume of Use. For increased use of the Software, Customer may increase its use during the Subscription Period beyond the scope specified in the Order, provided that Customer promptly notifies DataStax or Partner of the additional use and pays the applicable fees. The Order will specify the scope of the Subscription purchased by Customer, including as follows: (1) production or non-production use; (2) number of Nodes and Cores; and/or (3) other license parameters set forth in the applicable Order. “Node” means a Java Virtual Machine (a platform-independent execution environment that converts Java bytecode into machine language and executes it) that runs an instance of the Software. A “Core” means an independent, physical processing unit on a CPU responsible for executing programs. Unless otherwise specified in a new Order, the initial term of additional use will run for the remainder of the then-current Subscription Period, and Customer will be invoiced for the prorated fee.
2.3. Inspection. During the term of this EULA and for one year thereafter, but no more than once in a 12 month period and on no less than 30 days notice, Customer shall permit DataStax or its designated agent to inspect Customer’s facilities and records to verify Customer’s compliance with the EULA. DataStax at its option may request that an executive officer of Customer certify in writing to Customer’s compliance with this EULA.
3. Proprietary Rights
The Software is licensed, not sold. As between the parties, all intellectual property rights in the Software shall remain with DataStax or its licensors. 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. If Customer provides any suggestions or feedback regarding the Products, then DataStax may use that information without obligation to Customer, and Customer hereby irrevocably assigns to DataStax all right, title, and interest in that feedback or those suggestions.
4. Term & Termination
Subject to Customer’s payment of applicable fees, the Subscription License will continue for the Subscription Period, unless terminated earlier as set forth in the Agreement or this EULA. A No-Fee License shall continue until terminated, in DataStax’ sole discretion, on notice to Customer. DataStax may terminate this EULA if Customer breaches any material term and fails to cure that breach within 30 days after receipt of written notice. If the Agreement or this EULA expires or is terminated, then: (1) the rights granted by DataStax will immediately cease; (2) Customer will delete the Software; 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. DataStax and Customer each agree that (1) Confidential Information of the other party will be used only in accordance with the terms and conditions of this paragraph; (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 (2) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this paragraph. DataStax may use Customer’s data for internal business purposes only, including providing Support, and improving, testing and providing the Products. “Confidential Information” means any information designated as confidential orally or in writing by either party, or any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. This paragraph imposes no obligation with respect to information which: (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 an obligation of confidentiality; (3) is rightfully received from a third party without any duty of confidentiality; (4) is independently developed without reference to the Confidential Information of the disclosing party.
7.2. Publicity. Customer may state publicly that it is a user of the Products, and DataStax may identify Customer as a user of the Products, provided that any such statements shall conform with the trademark usage guidelines provided by one party to the other. Each party must obtain the other party’s advance consent to any press release relating to use of the Products.
8.1. Software Warranty. DataStax warrants that, during the Subscription Period, the Software will perform in material conformance with its published Documentation. If the Software fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy for such failure, DataStax will remedy such issues as provided in the DataStax Support Policy, or at DataStax’ option and upon Customer’s return of the Software to DataStax, refund the unused portion of any Fees paid for the Subscription. Under a No-Fee License, the Software is provided free of charge, and on that basis, to the fullest extent permitted by law, DataStax provides the Software “as-is” and without any warranties.
8.2. Authority. Each party warrants that it has full power and authority to agree to this EULA.
8.3. Harmful Code. DataStax will use commercially reasonable efforts and commercially available technology to scan the Software made available to Customer for, and to remove from the then-current-version of the Software, any computer “viruses,” “worms” and other malicious code.
8.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA, NEITHER DATASTAX NOR ITS SUPPLIERS PROVIDES ANY OTHER WARRANTIES REGARDING THE PRODUCTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW 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 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 EULA. THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
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 delivered by DataStax 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; 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 EULA, (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 Subscription and refund the unused portion of any Fees paid for the Subscription.
9.3. Exclusions. The indemnity provided by DataStax under this EULA does not extend to claims arising from or relating to (1) use of the Software under a No-Fee License; (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; or (4) Third Party Software; 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 version of the Software that would have avoided the alleged infringement.
9.4. Remedy. This section 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.”
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 EULA 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 EULA) 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 EULA 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 EULA in its entirety (including all Orders), without consent of the other party, 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 EULA 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 EULA, the documents will control in the following order: this EULA, the Order, and the terms located at any URL referenced in this EULA.
11.3. Entire Agreement. This EULA 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 EULA, 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 herein. The terms located at a URL referenced in this EULA are hereby incorporated by this reference. After the Effective Date, DataStax may provide Customer with an updated URL in place of any such URL. 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.
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 Products. In particular, but without limitation, the Software may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Customer represents and warrants that Customer and its Affiliates are not located in, under the control of, or a national or resident of any such country or on any such list.
11.5. Force Majeure. Neither party will be liable for failure or delay in its performance under this EULA to the extent caused by circumstances beyond its reasonable control. DataStax reserves the right to suspend Subscriptions or Services to comply with laws.
11.6. Governing Law. This EULA 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 any disputes arising herender will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA; the parties consent to personal jurisdiction in those courts. Each party hereby waives any right to jury trial in any litigation in any way arising out of or related to this EULA.
11.7. Independent Contractors. This EULA 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 EULA 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 EULA (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 EULA, while the remainder of this EULA will continue in full force. The waiver by either party of any default or breach of this EULA 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 EULA: Scope of Use, Proprietary Rights, Effect of Termination (Section 6.4), Confidentiality, Limitation of Liability, and Miscellaneous.
11.12. Updates. Except as expressly provided herein, no modification of this EULA 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 EULA, including this EULA (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 access or use the 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 (or, in the case of Services, the completion of the applicable Services). If the Subscription Period is renewed, it will do so under the updated URL Terms.