These Beta Program Terms (“Beta Terms”) are part of an agreement (the “Agreement”) 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 AppStax Terms attached hereto as Exhibit A (the “DataStax AppStax Terms”), and any other documents or terms expressly incorporated into this Agreement by reference. In interpreting this Agreement, these Beta Terms, the DataStax AppStax 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 AppStax offering made available to you by DataStax under the Early Adopter Program.  No license to DataStax Enterprise or Apache Cassandra is granted hereunder. If you wish to use the Artifacts (as defined in the DataStax AppStax Terms) in conjunction with DataStax Enterprise or Apache Cassandra you must obtain a separate license for such products. 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 upload, store or utilize 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 sample data uploaded by you and stored by the Beta Service at any time after 24 hours. Any Artifacts will be stored in Your account until deleted by You or until the termination of the Beta Program or the DataStax AppStax Terms.
  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 AppStax Terms 

Last Updated February 12, 2020

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

In order to provide You with DataStax  AppStax we may collect, process, retain, or share Your information. For information on how we collect, process, retain and share Your personal information, please see the DataStax AppStax Privacy and Data Processing Policy, available at: https://www.datastax.com/legal/datastax-appstax-privacy-policy the “Privacy and Data Processing Policy”), which may be updated from time to time. THE PRIVACY AND DATA PROCESSING POLICY IS HEREBY INCORPORATED BY REFERENCE IN THE AGREEMENT. YOU MAY NOT USE DATASTAX APPSTAX IF YOU DO NOT AGREE TO ALL OF THE PROVISIONS OF SUCH POLICY. 

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

  1. Definitions
    1. Artifacts” means the data models, queries, APIs, definitions, deployments and/or configurations generated using the DataStax AppStax services.
    2. Customer Data” means any and all electronic data or information submitted, stored, processed, created, or modified by DataStac AppStax and provided by Customer to DataStax or otherwise processed by DataStax in connection with Customer’s sample data.
    3. Documentation” means the DataStax AppStax documentation and other materials available at appstax.com, as may be amended from time to time.  
  2. DataStax AppStax Product
    1. Modifications; Discontinuation of Service.  You agree and understand that DataStax may make modifications, including discontinuation, to DataStax AppStax or components of DataStax AppStax from time to time.  
    2. Compliance with Applicable Laws. Your use of DataStaxAppStax must comply with all applicable laws, rules and regulations. 
    3. Registration. In order to access DataStax AppStax You must complete the registration process. 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.
    4. By providing Your Account Data, you hereby consent to receive telephone, email, or SMS communications from DataStax.  Such communications may include communications regarding Your DataStax 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 DataStax AppStax and Artifacts
    1. License. Subject to the provisions of these Terms, DataStax grants You with a nonexclusive, nontransferable, nonsublicensable, terminable license to use DataStax AppStax, including the right to access and use the Artifacts solely for internal use. Any use of the Artifacts in conjunction with DataStax Enterprise or Apache Cassandra requires a separate license to such software.
    2. Restrictions.  All rights in DataStax AppStax and the Artifacts, 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 AppStax; (2) assign, sublicense, transfer, lease, rent, resell, or otherwise distribute or make available the Artifacts, or DataStax AppStax to any third party; (3) use DataStax AppStax or the Artifacts for High Risk Activities or otherwise contrary to the Documentation, (4) use DataStax AppStax or the Artifacts 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 AppStax or the Artifacts 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 AppStax, or (7) attempt to use the DataStax AppStax 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. Reserved
  5. Proprietary Rights
    1. Proprietary Rights.  The DataStax AppStax and the Artifacts are licensed, not sold.   As between the parties, all intellectual property rights in DataStax AppStax and the Artifacts shall remain with DataStax or its licensors.  
    2. Federal Agency Users. DataStax AppStax 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.
    3. Feedback.  If Customer provides any suggestions or feedback regarding the DataStax AppStax, 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
    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.  DataStax may access, process, copy, archive, store, or otherwise modify the Customer Data in connection with the provision of the DataStax AppStax services.  Customer hereby grants DataStax the necessary rights for such access and modifications to the Customer Data. In connection with the DataStax AppStax services Customer will not upload, store or utilize any Regulated Data (as further described in the Beta Terms above).
    2. Customer hereby authorizes and consents to DataStax’s accessing, processing, and storing of Customer Data as required to provide the DataStax AppStax services, improve DataStax AppStax 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
    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. 
    2. Termination for Breach.  DataStax may suspend or terminate this Agreement, Your account and/or Your access to DataStax AppStaxt and/or Artifacts 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 DataStax AppStax 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.
    3. Termination for Convenience.  DataStax may terminate this Agreement and your use of and access to the DataStax AppStax services for convenience by providing written notice to You.  
    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) 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 DataStax AppStax services; and (4) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
  8. Confidentiality
    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 DataStax AppStax 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 DataStax AppStax services provided that such data is anonymized and aggregated.
    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.
    3. Publicity.  DataStax may identify Customer as a customer of DataStax AppStax, 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 AppStax.
  9. Warranties
    1. Authority.  Customer warrants that it has full power and authority to enter into this Agreement.  
    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.
    3. Disclaimer of Warranties. NEITHER DATASTAX NOR ITS SUPPLIERS PROVIDE ANY OTHER WARRANTIES REGARDING DATASTAX APPSTAX OR THE ARTIFACTS, 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 APPSTAX AND THE ARTIFACTS ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. TDATASTAX APPSTAX AND THE ARTIFACTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DATASTAX EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF DATASTAX APPSTAX AND THE ARTIFACTS 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 APPSTAX AND THE ARTIFACTS OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
  10. Indemnity
    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 AppStax service or the Artifacts; (ii) any breach by Customer of any term or condition of this Agreement, including without limitation, any breach of Sections 2.3 (“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
    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. 
    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 $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.
  12. [reserved]
  13. Miscellaneous
    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.
    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.
    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 AppStax 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.
    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 AppStax Services and any underlying Software or technology.  In particular, but without limitation, the DataStax AppStax 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.
    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 DatStax AppStax services to comply with laws.
    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.
    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.
    8. No Third-Party Beneficiaries.  This Agreement does not confer any benefits on any third party unless it expressly states that it does.
    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).
    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. 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.
    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 on www.appstax.com when there are any substantive updates to the Agreement. By continuing to use the DataStax AppStax after DataStax has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms.