This Pass-Through End User License Agreement (the “Agreement”) sets forth the terms and conditions upon which ScyllaDB Inc. or ScyllaDB, Ltd. on behalf of itself and its affiliates (collectively, “ScyllaDB” or “Company”) permits the use of (i) the Software, or (ii) the Services, which has been acquired from a ScyllaDB’s Authorized Reseller by you or the organization which you represent (“You” or “Customer”). Each of ScyllaDB or Customer shall be referred to as a “Party” and together the “Parties”.
Customer acknowledges that the agreement between ScyllaDB and the Reseller (the “Reseller Agreement”) requires the Reseller to incorporate this Agreement into all orders submitted and accepted by the Reseller and ScyllaDB (an “Order”) from all Customers, and Customer expressly agrees that ScyllaDB shall have the benefit of and right to enforce this Agreement. In the event that any provision of this Agreement is deemed to conflict with a provision of an Order or other agreement between Customer and Reseller with respect to the subject matter of this Agreement, this Agreement shall control as between Customer and ScyllaDB.
This Agreement shall be binding and effective upon the earlier of the Customer’s (as identified in the Order) access, installation, activation or use of the Software or the Services, or upon submission of an Order for the Software to the Reseller (the “Effective Date”). ScyllaDB may modify the terms set forth in this Agreement from time to time and such updated terms, once posted on ScyllaDB’s website, shall govern. We recommend that you periodically review the terms, to see if any changes were introduced as reflected in the “Last Updated” date hereinabove.
1. DEFINITIONS:
1.1. “Authorized User” means Customer’s employees, consultants or contractors who are authorized by Customer to use or access the Products on Customer’s behalf.
1.2. “Authorized Reseller” means Reseller or Distributer as approved by ScyllsDB as an Authorized Reseller and is subject to a Reseller Agreement.
1.3. “Customer Data” means the information, data or any other content shared, processed by the Software or otherwise made accessible to ScyllaDB by Customer under this Agreement for the purpose of using the Software and obtaining the Services during the Evaluation Period.
1.4. “Customer Environment” means the Customer’s hardware and software required for the operation of the Software or Services as described in the relevant Documentation or Order Form.
1.5. “Documentation” means additional materials, information and specifications, design documents and analyses, programming tools, plans, models, flow charts, reports and drawings, documentation and any other descriptions related to the Company Products, which is designed to explain the intended functionality of the Products and to assist in the onboarding, use and configuration of the Products that ScyllaDB generally makes available to its customers with the Products.
1.6. “Evaluation Period” means, unless otherwise agreed in writing by the Parties, the period commencing on the first date Customer accesses or uses the Products and ending sixty (60) days thereafter.
1.7. “Feedback” means any comments, feedback, potential errors and improvements, reports, or ideas about the Software, Services or other ScyllaDB Intellectual Property (as defined below), and certain electronic information regarding the usage and performance of the Products that the Software transmits to ScyllaDB, which Customer may provide to ScyllaDB during the Evaluation Period or Subscription Period, as applicable.
1.8. “Service” means the provision of ScyllaDB Cloud or Cloud Management, Database as a Service and such other services as set forth in the applicable Order Form.
1.9. “Software” means ScyllaDB proprietary database management software, including all Documentation.
1.10. “Subscription Term” means the period detailed in the Order until expiration or termination in accordance with this Agreement.
1.11. “Products” means Software and Services, as applicable.
2. GRANT OF LIMITED LICENSES:
2.1. Customer shall be granted a license to use the applicable Product for internal business purposes of Customer, and such license shall be subject to and conditioned upon compliance with the terms and conditions of this Agreement, including the limitations, conditions, restrictions and obligations set forth below in accordance with the relevant license and such parameters as identified in the Order:
2.1.1. Evaluation License. For Software or Services designated to be provided under an evaluation process (POC), Customer will be granted a limited, non-exclusive, non-transferable, royalties free, non-sublicensable, revocable license to install and use the applicable Product for the Evaluation Period, for the sole purpose of evaluating the applicable Product and determining whether Customer wishes to purchase a subscription to an Enterprise License or a Cloud License, as applicable (the “Evaluation License”). In case Customer wishes to access or use the Services or Software for any purpose other than as permitted under this Evaluation License, Customer must first contact ScyllaDB or the Authorized Reseller and purchase the appropriate license.
2.1.2. Development License. For the Products provided under a Development License, Customer shall be granted a limited, non-exclusive, non-transferable, royalties free, non-sublicensable, revocable license to install and use the Software in non-production environment, for the sole purpose of testing and enhancing the Software’s compatibility with Customer internal systems (the “Development License”). In case Customer wishes to access or use the Services or Software for any purpose other than as permitted under this Development License, Customer must first contact ScyllaDB or the Authorized Reseller and purchase the appropriate license.
2.1.3. Enterprise License. For the Software designated to be provided under an Enterprise License, subject to and conditioned upon compliance with the terms and conditions hereunder and the Order, the Customer shall be granted a limited, non-exclusive, non-transferable, royalties free, non-sublicensable, revocable license to install and use the Software in Customer Environment for the Subscription Term (the “Enterprise License”).
2.1.4. Cloud License. For the Services designated to be provided under a Cloud License, subject to and conditioned upon compliance with the terms and conditions hereunder and the Order, ScyllaDB grants Customer a non-exclusive, non-transferable, royalties free, non-sublicensable, revocable, limited right to use the Services for the Subscription Term (the “Cloud License”).
2.1.5. Each of the licenses set forth in this Section 2.1 above, as applicable, shall also be referred to herein as a “License”. This Agreement shall apply, mutandis mutatis, to the Each License set forth above.
3. MAINTENANCE AND SUPPORT:
3.1. Customer Agrees and acknowledges that Reseller shall be responsible for providing First Level Support to Customers. For the purpose of this Agreement, “First Level Support” shall consist of receiving and logging calls by a non-technical person via email, phone, web or as otherwise be determined by Reseller, and promptly relaying those to ScyllaDB without delay.
3.2. Notwithstanding, in between the Parties, ScyllaDB shall provide additional layers of support for the Customer. Unless explicitly agreed in writing by ScyllaDB, the terms of support and maintenance services shall be governed by the terms of the Company’s Service Level Agreement and Support Policy, as applicable, available at
https://www.scylladb.com/policies-agreements (together, the “SLA”). All ScyllaDB’s obligations under the SLA shall be from the actual receipt by the Company of a written request for support by either Reseller or Customer.
4. CUSTOMER ACCOUNT; CUSTOMER DATA:
4.1. With respect to Services provided on Customer’s own hosted cloud account (the “Customer Account”), ScyllaDB acknowledges and agrees that the Services shall be provided based on Customer Account, which is hosted or maintained by third parties hosting services supported by ScyllaDB (e.g., AWS) (“Third-Party Vendors”). Therefore, Customer hereby grants ScyllaDB, during the Subscription Term and solely to enable ScyllaDB to render the Services, the right and authorization to interface, use, replicate and any other right and authorization as may be required. ScyllaDB shall not use the Customer Account for any purposes other than for the purposes of providing the Services. Customer shall not change, add, copy, modify, access or interfere with any Scylla Cloud resources as may be applied by or on behalf of ScyllaDB in the Customer Account.
4.2. The Customer shall ensure, at Customer’s cost and expense, that all settings and technical requirements in the Customer Account are properly defined with all details, access, policies and permissions required by ScyllaDB to facilitate the rendering of the Services, and that ScyllaDB is authorized to access, use and/or interface with such Customer Account, solely for the purpose of providing the Services. ScyllaDB shall not be responsible for any interruptions, unauthorized access, outages, errors or other damages and losses arising out of, or related to, Third-Party Vendor’s platform or systems and/or are due to any failure of the Customer to meet the then-applicable technical requirements as set forth in the Documentation, or any other act or omission of Customer or Third-Party Vendors, which hinder ScyllaDB’s ability to meet its obligations hereunder.
4.3. With respect to the Services (whether provided on Customer Account or on ScyllaDB’s cloud account), Customer agrees that it will only share or otherwise make available on or through the Services, information, data or any other content (“Customer Data”) that Customer has the right and authority to share and for which Customer has the right and authority to grant to ScyllaDB all of the licenses and rights set forth hereunder. By sharing or using the Customer Data, Customer grants ScyllaDB a worldwide, limited, royalty-free, non-exclusive, sub-licensable license to replicate, transmit, backup and otherwise use the Customer Data solely for the purpose of carrying out the Services in accordance with this Agreement (“Customer Data License”).
4.4. Customer hereby warrants and represents that it shall not share, use or provide ScyllaDB any Customer Data which is: (a) infringing on a third party’s privacy or includes, copies or transmits another’s confidential, sensitive or personal information not in accordance with applicable law or the DPA (as defined below); (b) illegal, harmful, fraudulent, infringing third party rights, including intellectual property rights; (c) constitutes patient, medical or other information related to an individual’s physical or mental health, or the provision of or payment for health care, whether that information is regulated by the Health Insurance Portability and Accountability Act, as amended and supplemented, and the regulations thereunder (collectively, “HIPAA”), or any similar federal, state, or local laws, rules, or regulations, unless Customer has signed a Business Associate Agreement (as defined by HIPAA) with ScyllaDB; (d) is unauthorized, or for which Customer does not have the right and authority to share and/or grant the necessary rights and licenses for; (e) contains harmful code or any other malicious program; (f) violating or promotes the violation of any applicable laws or regulations; or (g) infringing on the applicable Third Party Vendor’s use policy.
4.5. Customer acknowledges and agrees that ScyllaDB shall have the right to retain certain information relating to the Customer, Customer Account or Customer Data, and its use of the Services, for archival purposes, including, among others, for billing purposes, legal requirements or disaster recovery purposes or as set forth in the DPA (as defined below) or as required under applicable laws and regulations.
4.6. The responsibility for the integrity and quality of the Customer Data or Customer Account shall be solely with Customer and the Third-Party Providers which are providing it the hosting services for the Customer Account, and ScyllaDB shall not be held responsible for any technical failure or data corruption in the Customer Account or Customer Data, except as otherwise caused directly due to ScyllaDB’s gross negligence or willful misconduct.
5. INTELLECTUAL PROPERTY OWNERSHIP:
5.1. The intellectual property and all other rights, title and interest of any nature in and to the Products including, among other things, Software, Services, tools, specifications, ideas, concepts, inventions, processes, techniques, know-how and any related documentation made available by or on behalf of ScyllaDB hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof, whether or not permitted under this Agreement) (“ScyllaDB Intellectual Property”), are and shall remain the sole and exclusive property of ScyllaDB and its licensors. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring ScyllaDB Intellectual Property and/or any other rights, title or interests to Customer or any third party. ScyllaDB and its licensors reserve any and all rights not expressly granted in this Agreement.
5.2. With the exclusion of Customer confidential information, Customer hereby agrees that ScyllaDB shall be free to use for any purpose whatsoever any suggestions, ideas, concepts, know-how, techniques, certain electronic information regarding the usage and performance of the Products that the Software transmits to ScyllaDB or contained in any communications between ScyllaDB and Customer, including, but not limited to, feedback, comments, suggestions, and the like for the development, production and marketing of products and services that incorporate such information (the “Feedback”), without compensation to Customer. Without derogating from the above, it is hereby clarified that all rights, title and interests in and to any Feedback shall vest solely with ScyllaDB, will be owned exclusively by ScyllaDB (and the Feedback is hereby irrevocably assigned to ScyllaDB, to the extent necessary to reflect the above) and will be deemed as ScyllaDB Confidential Information.
5.3. Except as expressly granted in this Agreement, no license or right is granted to Customer by implication, estoppel or otherwise with respect to the Products or any other ScyllaDB Intellectual Property.
6. PAYMENTS AND INVOICING:
6.1. Pricing, invoicing and payment terms shall be those agreed upon between the Customer and the Reseller under the applicable Order.
7. CONFIDENTIALITY:
7.1. During the term of this Agreement and thereafter, the Parties (i) shall treat as confidential and proprietary all information which is identified as confidential or proprietary, or which can be reasonably deemed to be such, and which is disclosed by one Party to the other (“Confidential Information”); (ii) shall not disclose such Confidential Information to any third party, except for such Party’s employees and consultants which have a specific need to know such information for the purpose of carrying out this Agreement and only if such employees or consultants executed a confidentiality agreement protecting such Confidential Information by terms no less stringent than those contained in this Section 6 and provided that a Party shall be liable for any breach of the terms of this Agreement by any of its employees and consultants, as if such breach was a breach of the such Party.
7.2. The foregoing shall not apply to any information that the Party receiving such information can prove by reasonable written and dated records: (i) is already in the Party’s possession, prior to the disclosure thereof, other than as a result of the breach of a legal or contractual obligation on the part of the receiving Party; (ii) was lawfully received by such Party from a third party having rights to disclose, and under no confidentiality obligations known to such Party with respect to such information; (iii) is or becomes a part of the public knowledge through no wrongful act of either Party; (iv) is approved for release in writing by the Party to whom the confidential or proprietary information belongs; or (v) is or was developed independently by the receiving Party without reliance on, reference to or use of any information of the other Party, and without any breach of this Agreement, as evidenced by contemporaneous written documents.
7.3. The confidentiality and non-use obligations under this Section shall be in effect for the term of this Agreement and shall survive any expiration or termination of this Agreement for a period of 3 years.
8. DATA PROTECTION:
8.1. The Data Processing Agreement, available at
https://www.scylladb.com/policies-agreements/, includes all data processing obligations of ScyllaDB and the Customer and is incorporated as an integral part of this Agreement, to the extent applicable.
9. WARRANTIES; DISCLAIMER OF WARRANTIES:
9.1. Customer represents and warrants that (i) it has the right and authority to enter into this Agreement and to fulfill its undertakings set out in this Agreement, (ii) it has sufficient facilities, personnel, financial and other resources to fulfill its duties and obligations in accordance with the terms of this Agreement (iii) the execution, delivery, and performance by Customer of this Agreement will not result in any violation of any agreement or instrument to which Customer is a party nor in the breach of any applicable law and/or order by any competent authority.
9.2. ScyllaDB represents and warrants to Customer that:
9.2.1. As a remedy for any breach of the warranties in this Agreement notified in writing to ScyllaDB by the Customer (or the Reseller on behalf of the Customer) in a timely manner, ScyllaDB will, at its own expense, correct any such breach, as is practical. In the event that ScyllaDB is unable to correct such breach within a reasonable time (but in no event more than 30 business days) from its receipt of such written notice, Customer shall have the right to terminate this Agreement.
9.2.2. To its knowledge, other than as set forth in the Documentation, none of the services or Software contain any “Trojan horse”, “worm”, “trap door”, “malware” (as such terms are commonly understood in the computer software industry), or any other device or code designed to destroy, copy, collect or expose data or files without the knowledge and consent of the Customer, or otherwise designed to disrupt, damage, disable, impair or interfere with use of the computer on which such code resides or the other software programs on such computer.
9.2.3. EXCEPT AS OTHERWISE EXPLICITLY STATED HEREUNDER, CUSTOMER AGREES THAT SCYLLADB HAS MADE NO EXPRESS OR IMPLIED WARRANTIES TO IT REGARDING THE PRODUCTS AND THAT THE SERVICES AND SOFTWARE ARE BEING PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND SCYLLADB DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PRODUCTS; EXPRESS OR IMPLIED; INCLUDING; WITHOUT LIMITATION; ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; BE TIMELY OR SECURE, MERCHANTABILITY; QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SCYLLADB DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, EXCEPT AS EXPRESSLY PROVIDED HEREUNDER.
9.2.4. FURTHERMORE, WHERE APPLICABLE, SCYLLADB MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE CUSTOMER ACCOUNT AND, EXCEPT FOR SCYLLADB’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY: (I) UNAUTHORIZED ACCESS TO OR USE OF THE CUSTOMER ACCOUNT AND/OR ANY AND ALL CUSTOMER DATA STORED THEREIN; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE CUSTOMER ACCOUNT; (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY; (VI) ANY LOSS OF CUSTOMER DATA OR INFORMATION FROM THE CUSTOMER ACCOUNT; OR (VII) CONSEQUENCES RELATED TO RESTRICTIONS, SUSPENSION OR TERMINATION OF THIRD PARTY PROVIDERS’ SERVICES TO CUSTOMER WITH RESPECT TO CUSTOMER ACCOUNT OR CUSTOMER DATA; AND/OR (VIII) OBLIGATIONS WITH RESPECT TO ANY BACKUP, SECURITY OR CONTINGENCY PLAN FOR THE CUSTOMER ACCOUNT OR CUSTOMER DATA; CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SCYLLADB TO ANY THIRD PARTY. SINCE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE FOREGOING LIMITATIONS MAY NOT APPLY. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY, AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
10. LIMITATION OF LIABILITY:
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 10, IN NO EVENT SHALL: (a) SCYLLADB, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS HAVE ANY LIABILITY TO CUSTOMER OR ANY AUTHORIZED USER FOR ANY LOSSES ARISING OUT OF OR RELATING TO (i) RESELLER’S RESALE OF PRODUCTS AND SERVICES TO CUSTOMER, (ii) RESELLER’S PROVISION OF SERVICES TO CUSTOMER, (iii) RESELLER’S PROCESSING OF ANY ACCOUNT DATA, CUSTOMER DATA OR CUSTOMER CREDENTIALS OR (iv) ANY CUSTOMER ORDER, SUBJECT OT SCYLLADB’S OBLIGATIONS UNDER THESE TERMS; (b) SCYLLADB, ITS AFFILIATES OR ITS EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THESE TERMS; AND (c) SCYLLADB’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO SCYLLADB BY RESELLER UNDER THE APPLICABLE CUSTOMER ORDER IN THE 6 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF SCYLLADB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT.
11. INTELLECTUAL PROPERTY INFRINGEMENT:
11.1. Customer will defend, indemnify and hold ScyllaDB, its officers, employees, directors and affiliates, harmless from any and all liabilities, losses, damages, judgments, claims, causes of action, costs, or expenses (including reasonable attorney’s fees) from and against any third-party claim, demand, damages or lawsuit arising out of or relating to (a) Customer’s breach of this Agreement; (b) Customer’s violation of Third-Party Providers internal regulation, contractual obligations and undertakings between the Customer and such Third-Party Provider or terms or service or any applicable laws or regulations in connection with the Products; or (c) Customer Data or the combination of the Customer Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the Customer Data, and Customer will pay such damages or costs as are attributable to any such action. ScyllaDB will promptly notify Customer of any claim subject to this section, but ScyllaDB’s failure to promptly notify Customer will affect Customer obligations only to the extent that ScyllaDB’s failure prejudices the Customer’s ability to defend the claim. Customer may: (a) use counsel of its own choosing (subject to ScyllaDB’s written consent) to defend against any claim; and (b) settle the claim, provided that Customer obtains ScyllaDB’s prior written consent before entering into any settlement.
11.2. In the event that a legal action is brought against Customer, to the extent that it is based on a claim that the Software infringes a patent, copyright, trademark, service mark, trade secret or other intellectual property or proprietary right of a third party (an “Infringement Claim”), ScyllaDB shall provide Customer with legal defense at its own expense and pay for costs and damages awarded against Customer in such action or agreed to under a settlement, provided that: (i) Customer promptly provides ScyllaDB and the Reseller with a written notice of such legal action, provided that failure of the Customer to give ScyllaDB prompt notice as provided herein shall not relieve ScyllaDB of any of its obligations under this Section, except to the extent that ScyllaDB is materially prejudiced by such failure; (ii) Customer grants ScyllaDB complete authority over the legal defense and settlement negotiations; (iii) Customer fully cooperates with ScyllaDB with respect to such legal action; and (iv) no settlement with respect to such legal action shall be made without ScyllaDB’s prior written approval. Notwithstanding the above, ScyllaDB shall have no liability to defend and pay for any Infringement Claim to the extent that the action: (i) is based on a modification of the Software not by ScyllaDB; (ii) results from Customer’s failure to use an updated version of the Software; (iii) is based on a combination or use of the Software with any software, program or device, including without limitation software licensed under the terms of applicable open source licenses, not provided or approved in writing by ScyllaDB; (iv) results from Customer’s use of the Software following the termination of the Agreement or is otherwise in breach of this Agreement (including, but not limited to, any excess use of the Software or Services which has not been paid for by the Customer).
11.3. In the event that Customer is enjoined or prevented from using any Product as a result of an Infringement Claim, ScyllaDB shall (i) procure the right to continue using such Product or (ii) replace or modify such Product to eliminate the infringement while providing substantially equivalent functional performance. In the event that ScyllaDB is unable to procure the right to continue using or replace or modify such Product pursuant to clauses (i) and (ii) above, Customer shall have the right to terminate this Agreement, and Reseller shall refund to Customer the unearned portion of the amount actually paid to Reseller for the Product.
11.4. THIS SECTION STATES SCYLLADB’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AGAINST SCYLLADB AND ANY OF ITS REPRESENTATIVES, WITH RESPECT TO AN INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OF ANY KIND RELATED TO THE SOFTWARE.
12. EXPORT CONTROL:
12.1. The Parties shall comply with all applicable export or import laws and regulations as relevant to this Agreement. Furthermore, the Parties agree not to use or otherwise export or re-export the Software or anything exchanged or transferred between them pursuant to this Agreement except as authorized by applicable export control laws, including, applicable United States laws and the laws of the jurisdiction in which it was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By entering into this Agreement, each Party represents and warrants that they are not located in any such country or on any such list. Each Party also agrees that they will not use the Software for any purposes prohibited by applicable export or import control laws and regulations, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Customer shall be solely responsible for compliance with any such import, use, or export restrictions with respect to its use of the Software. In the event either Party becomes aware of any suspected violations of this Section that Party will promptly inform the other Party of such suspected violations and cooperate with one another in any subsequent investigation and defense, be they civil or criminal.
13. TERM, TERMINATION OF THIS AGREEMENT:
13.1. Term. Except as otherwise provided in this Section 13, this Agreement shall be in effect as of the Effective Date and continue through the expiration or earlier termination of the last Customer Order to be in effect.
13.2. ScyllaDB may terminate this Agreement: (a) if Customer breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after ScyllaDB provides written notice of such breach; (b) the Customer breaches the Use Restrictions set forth in Section 2.2, (c) if Reseller fails to comply with its obligations under the Reseller Agreement including without limitation, its obligation to pay any amount due under its Reseller Agreement and such failure remains uncured following the cure period specified in its Reseller Agreement; or (d) when the Reseller Agreement terminates.
13.3. Notwithstanding, if Reseller Agreement terminates within the Subscription Term, any active subscription to the Products under an Order shall remain governed by this Agreement and in effect until the end of its Subscription Term. Thereafter, ScyllaDB and Customer may engage directly for any renewal of the subscription.
13.4. Effects of Termination.
13.4.1. Upon expiration or earlier termination of an Order or the Subscription Term, all rights granted to Customer with respect to the Products shall terminate immediately as of the effective date of such expiration or termination, and thereafter ScyllaDB shall have no obligation to provide the Products or any associated services to Reseller or Customer. Customer undertakes to promptly remove and permanently delete all copies of the Software and the Documentation.
13.4.2. With respect to an Enterprise License, in the event of a termination (except for termination due to a material breach by Customer or Reseller) or expiration of this Agreement or an Order, this Agreement may, at Customer’s sole option, survive for a period of up to 6 months (“Transition Period”) to allow Customer to transition away from the Software and support Services. The availability of the Software and services during the Transition Period is subject to the actual receipt by ScyllaDB of payment made by Customer of the fees for the use of the Software during the Transition Period. The terms of this Agreement shall apply mutandis mutatis to the Transition Period.
13.4.3. The provisions of Sections 2, 4, 5, 7 – 11 and 12, as well as any provisions which by their nature are intended to survive, shall survive the expiration or termination of this Agreement and any Order for any reason.
14. GENERAL PROVISIONS:
14.1. Third-Party Beneficiaries. This Agreement is for the sole benefit of ScyllaDB and the Customer and their respective successors and permitted assignments. Nothing herein, express or implied, shall confer on the Reseller or any other person any legal or equitable right, of any kind under this Agreement. For avoidance of doubt: (a) the Reseller is not a third-party beneficiary of this Agreement; (b) Customer is not a third-party beneficiary of any Reseller Agreement; and (c) ScyllaDB is not a party to any Order or other agreement between Customer and Reseller; provided, however, that ScyllaDB is a third-party beneficiary with respect an Order as it relates to this Agreement.
14.2. Assignment. The Customer may not assign, transfer, or otherwise dispose of this Agreement or any of its rights, interest, or obligations hereunder without the prior written consent of ScyllaDB. Any such assignment of this Agreement in violation of this provision shall be null and void. ScyllaDB may transfer or assign this Agreement to: (a) an affiliate of ScyllaDB; or (b) an acquirer of all or substantially all of the shares or assets of such party through change of control event.
14.3. Notices. All notices and demands hereunder shall be in writing and shall be served by at least one of the following: (1) personal service; (2) registered or certified mail at the address of the receiving Party set forth in this Agreement (or at such different address as may be designated by such Party by written notice to the other Party); (3) electronic mail with electronic confirmation and followed immediately by (1) and/or (2).
14.4. Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of Israel (If the applicable ScyllaDB entity appearing in the Order Form is Scylla DB Ltd.) or the laws of Delaware, U.S.A. If the applicable ScyllaDB entity appearing in the Order Form is ScyllaDB Inc., without giving effect to their respective conflicts of laws provisions, and the competent courts situated in Tel Aviv, Israel or in the State of Delaware, respectively, shall have sole and exclusive jurisdiction over the parties and any conflict and/or dispute arising out of, or in connection to, this Agreement.
14.5. Integration. This Agreement (including any documents incorporated by reference hereto) sets forth the entire agreement between the Parties on the subject hereof and supersedes any and all previously or currently existing oral or written agreements, understandings, memoranda, letters of intent, or representations on the subject matter hereof, as of the Effective Date.
14.6. Amendments. ScyllaDB may amend the terms set forth herein from time to time and such updated terms, once posted on ScyllaDB’s website, shall govern from the date on which it was posted. You hereby acknowledge that you will periodically review the terms of this Agreement, to see if any changes were introduced as reflected in the “Last Updated” date above.
14.7. Severance. If any one or more of the terms of this Agreement shall for any reason be held to be invalid or unenforceable, such term shall be construed in a manner to enable it to be enforced to the extent compatible with applicable law. Any determination of the invalidity or unenforceability of any provision of the Agreement shall not affect the remaining provisions hereof unless the business purpose of this Agreement is substantially frustrated thereby.
14.8. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
Customer Name: _________________________
Signature: _____________________________
By: Name:__________________ Title: _______________________
Date: _____________________
[End of ScyllaDB Pass-Through EULA]
