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Last updated: February 25, 2022
This ScyllaDB Cloud Management Service Agreement (the “Agreement”) governs the relationship between ScyllaDB Inc. or ScyllaDB, Ltd. (“ScyllaDB” or “Company”) and the customer (“you” or “Customer”), as identified in the order form executed by and between ScyllaDB and Customer (“Order Form”) and shall be effective as of the earlier of the effective date set forth in the Order Form or the date on which you first access or use the Company software or Services (as defined below) (the “Effective Date”). This Agreement shall be an integral part of the Order Form, setting forth the terms and conditions upon which ScyllaDB shall render the Services under the License. Capitalized terms not defined herein shall have the meaning ascribed to them in the Order Form. Each of ScyllaDB or Customer shall be referred as a “Party” and together the “Parties”.
ScyllaDB may modify the terms set forth herein 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. SERVICES; GRANT OF LICENSE.
1.1. Services. Subject to the terms and conditions hereunder, ScyllaDB shall provide to Customer, during the Subscription Term (as defined below), the provision of access to the ScyllaDB Cloud Management Database as a Service and such other related services as set forth in the Order Form (together, the “Services”).
1.2. Grant of License.
1.2.1. Evaluation License. For Services or Company software designated to be provided under an evaluation process (“POC”), ScyllaDB grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (the “Evaluation License”) to use the Services for up to 60 days’ period (or as otherwise agreed by the Parties in writing) commencing as of the Effective Date, subject to the terms, conditions or parameters contained in the Order Form, for the sole purpose of evaluating the Service and determining whether Customer wishes to purchase a subscription to a Cloud License. In case Customer wishes to use the Services or Company software for any purpose other than as permitted under this Evaluation License, you must first contact ScyllaDB and purchase the appropriate license. This Agreement shall apply, mutandis mutatis, to the Evaluation License.
1.2.2. Cloud License. For the Services or Company software designated as provided under a Cloud License, subject to and conditioned upon compliance with the terms and conditions hereunder, ScyllaDB grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to utilize the Services for the Subscription Term, for internal business purposes of Customer (the “Cloud License”). For the purpose of this Agreement, the “Subscription Term” shall mean the period defined in the Order Form in which the Customer has the authority to utilize the Services, commencing on the Effective Date until expiration or termination of such term in accordance with this Agreement.
1.2.3. Use Restrictions. Customer hereby represents and warrants that it shall not and shall not permit others to: (a) copy the Services, Company software or any portion thereof (“Company Products”); (b) deny service to, hack, crack, reverse engineer, disassemble, or decompile the Company Products in any form or by any means; (c) modify or create derivative works of the Company Products; (d) reverse engineer, disassemble, or decompile any portion of the Company Products or attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Company Products or any software thereto incorporated; (e) use the Company Products for any illegal or unauthorized purpose, or in a manner which infringes third parties’ rights in any way, including intellectual property rights; (f) incorporate the Company Products into the structure, machinery or controls of any aircraft, other aerial device, military vehicle, hovercraft, waterborne craft or any medical equipment; (g) distribute, sell, sublicense or otherwise transfer or provide access to the Company Products to any third party, including, without limitation, provision of cloud management services through the Services; or (h) make or attempt to make any alterations to the scope of the Services (e.g., add or remove instances, remove or modify any backup files) not through the ScyllaDB Cloud UI, or by ScyllaDB prior written consent.
1.2.4. Customer acknowledges that the Company software may contain open-source components (“OSS Components”) that are governed separately by certain open-source licenses, in each case as further provided by Company upon request.
1.3. Customer Account.
1.3.1. Customer acknowledges and agrees that the Services shall be provided based on Customer’s own hosted cloud account (the “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 such other rights and authorizations as may be required. ScyllaDB shall not use the Customer Account for any other purposes other for the purposes of providing the Services. Customer shall not change, add, copy, modify, access or interfere with any ScyllaDB Cloud resources as may be applied by or on behalf of ScyllaDB in the Customer Account.
1.3.2. 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 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 which 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.
1.4. SLA; Support.
1.4.1. ScyllaDB shall provide to Customer, during the Subscription Term, reasonable support services with respect to the Services as set forth in the Service Level Agreement and the ScyllaDB Support Policy, available at: https://www.scylladb.com/policies-agreements/ (collectively, the “SLA”). For avoidance of doubt, it is clarified that the SLA is applicable to the Services provided under this Agreement only and is not applicable to, nor intended to govern the operation of the Customer Account or the Third-Party Vendors, nor it is intended to replace any support or service level agreements provided by a Third-Party Vendor with respect to Customer Account.
1.4.2. Customer acknowledges and agrees that ScyllaDB is using the services and/or products of third-party partners or service providers to facilitate provisioning the Services. As such, certain warranties and obligations, including with respect to the SLA, shall be limited to, and may be impacted by, such representations, warranties and service levels as are extended to ScyllaDB by such third-party partners and/or service providers.
1.5. ScyllaDB Cloud UI. Customer shall be granted during the Subscription Term access to the ScyllaDB Cloud UI dashboard (“ScyllaDB Cloud UI”) through which the Customer shall utilize the Services (by, for example, adding instances, removing or changing backup settings or data through requests uploaded to the ScyllaDB Cloud UI). Customer shall be permitted to assign access rights to its personnel as described in the Documentation. Customer shall be fully responsible and liable for any actions taken in the Customer’s Account caused by it or its said personnel through the ScyllaDB Cloud UI and undertakes to pay any fees incurred in connection with such actions. Unless otherwise agreed by the Parties, Customer undertakes to make changes to the scope of the Service only through the ScyllaDB Cloud UI.
1.6. Suspension of Service. ScyllaDB may be required and shall have the right to suspend Customer’s access to the Services:
1.6.1. for scheduled maintenance where ScyllaDB shall provide the Customer with a 30 days’ prior notice of such scheduled maintenance, or for unscheduled maintenance, in which case, ScyllaDB shall provide the Customer with a notice as soon as practicable under the relevant circumstances. ScyllaDB shall exert best commercial efforts to ensure that any suspension of Services shall be limited to the minimal duration required; or
1.6.2. in the event Customer is in breach of this Agreement, (including, among others, breach of Section 1.2.3 (Use Restrictions) or failure to pay the Fees). Nothing in this Section 1.6.2. shall limit ScyllaDB’s rights to terminate the Services in accordance with Section 10 to this Agreement.
1.6.3. Any suspension of Customer’s access to the Services pursuant to Sections 1.6.1 and 1.6.2 above shall not considered as ScyllaDB’s breach of this Agreement.
1.7. ScyllaDB Documentation. ScyllaDB may provide the Customer from time to time with 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 software, which is designed to explain the intended functionality of the Services and to assist in the onboarding, use and configuration of the Company software (the “Documentation”).
2. CUSTOMER’S DATA
2.1. 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, backup and otherwise use the Customer Data solely for the purpose of carrying out the Services in accordance with this Agreement (“Customer Data License”).
2.2. 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.
2.3. 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 internal purpose only, such as archival purposes, 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.
2.4. 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, willful misconduct or fraud.
3. INTELLECTUAL PROPERTY RIGHTS.
3.1. ScyllaDB retains exclusive ownership of all rights, interests and title in the Services, the Company software, the Documentation, or any programing tools provided by ScyllaDB, and in the copies and derivatives thereof (“Company IP”) and Customer acknowledges that all rights, title and interest in and to Company IP and any and all trademarks, trade names, copyrights, patents, patentable inventions, and any and all other intellectual property rights used or embodied in or in connection therewith, are and shall remain in the exclusive property of ScyllaDB, subject only to the rights and licenses expressly granted by ScyllaDB hereunder. Customer shall make no claim of right to any Company IP or Services to be provided by ScyllaDB hereunder and acknowledges that as between ScyllaDB and Customer, all Company IP is sole proprietary of ScyllaDB.
3.2. 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 Company Products that the Company 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, and will be owned exclusively by ScyllaDB (and the Feedback is hereby irrevocably assigned to ScyllaDB by Customer, to the extent necessary to reflect the above).
4. ORDERS, PAYMENT TERMS AND TAXES.
4.1. All Order Forms are subject to the terms and conditions of this Agreement. All Order Forms shall be signed by both parties and shall be non-refundable and non-cancellable except as explicitly set forth herein and in the Order Form. For avoidance of doubt, it is clarified that if a purchase order (“PO”) is listed as a requirement in the applicable Order Form, the issuance of such PO is not a condition to the effectiveness of this Agreement or the binding effect of the Order Form.
4.2. Customer’s use of the Services is subject to the full and timely payment of fees and other payments identified in the Order Form or herein (the “Fees”). Unless expressly stated otherwise in the applicable Order Form:
4.2.1. Fees are invoiced and paid annually in advance and are non-refundable and non-cancellable.
4.2.2. Invoice shall be issued and delivered to the Customer digitally as soon as practicable following the earlier of the Effective Date or the execution date of the Order Form.
4.2.3. Payment of invoices is due within no later than 30 days from date of invoice.
4.2.4. All payments shall be made in U.S. Dollars.
4.3. If your purchase of the Services or Company software was made via a Cloud Provider’s Marketplace (such as Amazon Web Services (AWS), Microsoft Azure, Google Cloud Platform (GCP) etc.), then the payment process applicable to such Cloud Provider’s Marketplace purchases shall supersede the payment terms set forth herein, to the extent inconsistent.
4.4. Unless expressly stated otherwise in the applicable Order Form, the Fees shall be relevant during the Subscription Term, for up to the maximum number of Licenses purchased or as set to be purchased under such Order Form and shall not constitute as a commitment for price or discounts by ScyllaDB for any future orders sought by the Customer. All discounts, payment terms or other special terms afforded by ScyllaDB in any Order Form are subject to and contingent upon Customer’s fulfillment of all terms and obligations under such Order Form.
4.5. Customer may use a licenses capacity in an amount, terms or parameters which exceed the amount, terms or parameters set in the applicable Order Form (“Over-Usage”), and unless otherwise agreed in an Order Form, any Over-Usage shall be calculated by ScyllaDB and charged in accordance with the then applicable ‘On-Demand’ fees offered at such time by ScyllaDB (“On-Demand Fees”) and any previous discounts or benefits shall not apply.
4.6. Notwithstanding anything to the contrary in this Agreement, ScyllaDB shall have the right, solely for the purpose of preventing an immediate adverse impact of Customer’s operations (such as potential major outage), to increase the licenses capacity set out in the applicable Order Form (“Emergency Over-Usage”) without a prior notification to Customer. Any Emergency Over-Usage shall be calculated by ScyllaDB and charged in accordance with the then applicable On-Demand Fees (starting as of the date on which the Company actually increased the then applicable licenses capacity and extending up until the end of the Subscription Term or as otherwise be determined by the Parties in good faith). ScyllaDB shall notify the Customer as soon as reasonably practicable following such change.
4.7. Any use of the Company Products without renewal or extension pursuant to Section 10.2 herein (“Non-Renewal Usage”) shall be calculated by ScyllaDB and charged in accordance with On-Demand Fees as of the applicable End Date as set forth in the Order Form and any previous discounts or benefits shall not apply. For any Non-Renewal Usage, Over-Usage or Emergency Over-Usage, the term of this Agreement and the applicable Order Form shall apply.
4.8. Late Payments; Suspension. If Customer is late on payment of Fees, Customer will be given 7 days to rectify the issue and resume payment, any payment not rectified shall be considered as late payment. Late payments shall bear interest at the rate of 1.5% per month (or the highest rate permitted by applicable law, if less) from the payment due date until paid in full. Customer will be responsible for all expenses (including reasonable attorneys’ fees) incurred by ScyllaDB in collecting such late payments amounts. If Customer does not remit timely payment for the Services, ScyllaDB may, at its sole discretion, suspend the Services in accordance with Section 1.6.2 or terminate this Agreement and the applicable Order Form.
4.9. Taxes. All Fees payable by Customer are net amounts payable to ScyllaDB and are exclusive of indirect taxes including without limitations, all federal, state and local excise, sales, use, value-added, occupational, levies, assessments, import duties and other taxes which may be imposed by any governmental or tax entity in connection with any transaction contemplated by this Agreement and/or the Order Form (excluding any taxes assessed against ScyllaDB’s net income) (“Taxes”). It is hereby clarified that Customer shall be fully responsible to pay any and all Taxes even if not stated in the relevant invoice, and Customer shall not be entitled to withhold or deduct any taxes of whatever nature now or hereafter imposed (including without limitation to any government or tax authority) from the Fees or any other payment to Company.
4.10. No Refunds. In the event of termination of this Agreement due to a material breach by ScyllaDB as determined by a court of competent jurisdiction, ScyllaDB shall refund any prepaid unused fees paid for Company Products by Customer. In any other case, no refund – full, partial or pro-rated – shall be provided and no obligation to pay any Fees shall be deemed waived, with respect to any Services (including, for avoidance of doubt, any subscriptions), whether the Services or the applicable Subscription Term have already commenced or not.
5.1. 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; (ii) shall not disclose such information to any third party, except for such party’s employees and consultants (“Representatives”) which have a specific need to know such information for the purpose of this Agreement and only if such Representatives executed a confidentiality agreement protecting such information by terms no less stringent than those contained in this Section. Each Party shall be responsible and liable for enforcing the terms of this Agreement vis-à-vis any of its Representatives, and shall be liable for any breach of the terms of this Agreement by any of its Representatives, as if such breach was a breach of the Receiving Party of this Agreement. The foregoing shall not apply to any information that the party receiving such information can prove by reasonable written and dated records: (a) 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; (b) 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; (c) is or becomes a part of the public knowledge through no wrongful act of receiving party; (d) is approved for release in writing by the party to whom the confidential or proprietary information belongs; or (e) 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 the Agreement, as evidenced by contemporaneous written documents.
5.2. Any breach or threatened breach of this Section may cause irreparable harm to the disclosing party for which there is no adequate remedy at law. Therefore, the disclosing party will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law.
5.3. 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.
6. WARRANTY AND DISCLAIMERS.
6.1. ScyllaDB and Customer each represent and warrant that they have the right, power, and authority to enter into this Agreement and perform their respective obligations hereunder.
6.2. Except as expressly set forth in the Documentation, ScyllaDB represents and warrants to Customer that, to its knowledge, none of the Services 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.
6.3. EXCEPT AS OTHERWISE EXPLICITLY STATED HEREUNDER, CUSTOMER AGREES THAT SCYLLADB HAS MADE NO EXPRESS OR IMPLIED WARRANTIES TO IT REGARDING THE SERVICES AND THAT THE SERVICES 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 SERVICES; 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 SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, EXCEPT AS EXPRESSLY PROVIDED HEREUNDER.
6.4. FURTHERMORE, SCYLLADB MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE CUSTOMER ACCOUNT AND, EXCEPT FOR SCYLLADB’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, 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; (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.
7.1. 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 Services or Customer Account; 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’s obligations only to the extent that ScyllaDB’s failure prejudices the Customer’s ability to defend the claim. Customer may: (a) use counsel of Customer’s own choosing (subject to ScyllaDB 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.
7.2. ScyllaDB will defend and indemnify Customer and its affiliates against any third-party claim, demand, damages or lawsuit arising out of or relating to (a) violation of applicable laws or regulations caused directly by the Services; or (b) infringement or misappropriation of a third party’s patent, copyright, trade secret, or trademark caused directly by the Services, provided that the Services were used by Customer in accordance with the this Agreement and the Documentation and that such infringement or misappropriation is not due to a combination of the Services with any other content, products or services which are not provided by ScyllaDB.
8. LIMITATION OF LIABILITY.
8.1. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND OTHER THAN IN CONNECTION WITH SCYLLADB’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT WILL SCYLLADB BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE; LOSS OF DATA, INTERRUPTION OF BUSINESS; OR ANY INDIRECT; SPECIAL; INCIDENTAL; OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; EVEN IF SCYLLADB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SCYLLADB SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR CORRUPTION OF ANY CUSTOMER DATA OR INFORMATION UNDER ANY CIRCUMSTANCES OR FOR ANY CONSEQUENCES RELATED TO CHANGES, RESTRICTIONS, SUSPENSIONS, OR TERMINATION OF THE SERVICES, CUSTOMER ACCOUNT OR THE AGREEMENT. THESE LIMITATIONS WILL APPLY TO CUSTOMER EVEN IF THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
8.2. OTHER IN CONNECTION WITH SCYLLADB’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF SCYLLADB, FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO SCYLLADB DURING THE PERIOD OF THE 6 MONTHS PRECEDING THE DATE OF THE CLAIM. THE FOREGOING PROVISION LIMITING THE LIABILITY OF SCYLLADB SHALL APPLY REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR A BREACH OF A FUNDAMENTAL TERM OR CONDITION.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT DO NOT APPLY AND ALL OTHER TERMS SHALL REMAIN IN FULL FORCE AND EFFECT.
9. INTELLECTUAL PROPERTY INFRINGEMENT.
9.1. If ScyllaDB believes the Services might infringe a third party’s intellectual property rights, then ScyllaDB may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.
9.2. If ScyllaDB believes that the remedies in Section 9.1 are not commercially reasonable, then ScyllaDB may suspend or terminate Customer’s use of the impacted Services and issue to the Customer a pro-rated refund with respect to the period commencing on the date of such suspension or termination.
9.3. Without affecting either party’s termination rights, this Section 9 states the parties’ only rights and obligations under the Agreement for any third party’s intellectual property rights allegations in connection to infringement by the Services.
10. TERM AND TERMINATION.
10.1. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in this Section 10 of this Agreement or expire upon the lapse of the last effective Order Form.
10.2. Expiration. Any Order Form shall automatically expire upon the lapse of the applicable Subscription Term, unless renewed by mutual written consent of the parties and the fees with respect thereto have been timely paid for by the Customer. Customer acknowledges and agrees that renewals by entering a new Order Form or extensions of the existing Order Form shall be Customer’s responsibility. For any use of the Service or Company software after the applicable End Date without such renewal and/or extension, Section 4.7 shall apply.
10.3. Termination for Breach.
10.3.1. Either party may terminate an Order Form, or this Agreement in its entirety for breach if: (i) the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 60 days.
10.3.2. ScyllaDB may terminate any Order Form and/or terminate or suspend any Services thereunder for breach if Customer fails to make timely payment with respect thereto. For avoidance of doubt, such suspension or termination shall not be considered as a breach by ScyllaDB of this Agreement.
10.4. Subject to the terms herein, Customer may terminate this Agreement for its convenience at any time upon a 60 days’ prior written notice and upon such termination, must cease use of the applicable Services, such termination shall not release Customer from fulfilling its obligations herein (including without limitation, payment of Fees). ScyllaDB may terminate this Agreement for its convenience at any time upon a 60 days’ prior written notice without liability to Customer.
10.5. Effect of Termination or Expiration. If this Agreement is terminated or expire, then: (i) the rights granted by one party to the other will immediately cease and terminate, including, among others, the Evaluation License, Cloud License and Customer Data License; (ii) all Fees owed by Customer to ScyllaDB are immediately due upon receipt of the final electronic bill; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party as applicable. The provisions of Sections 2.3, 4 – 11 and 12, as well such provisions which by their terms are intended to survive, shall survive the expiration or termination of this Agreement for any reason. Upon the termination or expiration of this Agreement or any Order Form, ScyllaDB shall have the right, without any liability, to immediately terminate any servers and delete all Customer Data related to such expired or terminated Order Form. The Customer undertakes, at Customer cost and expense, to copy, migrate, backup or make any other disposition in Customer Data as the Customer deems appropriate, prior to the termination or expiration of the applicable Order Form.
11. DATA PROTECTION.
11.1. If applicable to the Services, ScyllaDB shall collect, use and share Personal Data (as defined in the DPA), solely as set forth in the data processing addendum which is available at Data Processing Agreement (“DPA”) which is incorporated herein as an integral part of this Agreement, and in accordance with applicable laws.
11.2. Customer acknowledges that ScyllaDB may process Personal Data that is contained in Customer Data or as required to perform the Services in accordance with the terms and conditions of the DPA. Customer hereby represents and warrants that it has all the necessary rights, authorizations and consents in connection with any processing of Personal Data of persons included or portrayed in the Customer Data, if and as applicable, in accordance with applicable laws and the DPA.
12. GENERAL PROVISIONS.
12.1. 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. 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. Any assignment of this Agreement in violation of this provision shall be null and void.
12.2. Notices. All notices and communications 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 relevant Order Form (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).
12.3. 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 ScyllaDB 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.
12.4. Independent Parties. Customer and ScyllaDB are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. The Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement. Either party’s failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time.
12.5. Integration. The Agreement, including the DPA and SLA 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.
12.6. 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.
12.7. Order of Precedence. In the event of any discrepancy between the terms and conditions of the Agreement and the terms and conditions of an Order Form, the terms and conditions of the Agreement shall govern unless explicitly stated otherwise in the Order Form. In the event the Order Form states that a PO from the Customer is required, then it is agreed that any terms and conditions inconsistent with the Order Form appearing in such PO, shall not be binding.
12.8. 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 this Agreement shall not affect the remaining provisions hereof unless the business purpose of the terms is substantially frustrated thereby.
12.9. Third Party Beneficiary. The Agreement is not intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained hereunder or contemplated hereby, except as otherwise expressly provided for in this Agreement.
12.10. Duly Authorized Signatories. Each party hereto represents that its signatory whose signature appears on the Order Form has been and is on the date of the Order Form duly authorized by all necessary corporate or other appropriate action to execute the Order Form and enter into this Agreement.
12.11. Electronic Signatures. The Parties hereto consent to the execution of the Order Form by electronic signatures and agree that such signatures shall be treated, for purpose of validity, enforceability and admissibility the same as hand-written signatures.
End of ScyllaDB Cloud Management Service Agreement