ScyllaDB Proprietary Software License Agreement
Last updated: February 13, 2020
This Proprietary Software License Agreement (“Agreement”) governs the relationship between the Customer identified in the applicable order form (“Order Form”) executed between ScyllaDB Inc.or Scylla DB, Ltd. as set forth in the Order Form (“ScyllaDB” or “Company”) and the customer identified in the Order Form (“you” or “Customer”) and shall be effective as of the effective date set forth in the Order Form (“Effective Date”). This Agreement shall be an integral part of such Order Form, setting forth the terms and conditions upon which the ScyllaDB database software (the “Software”) is licensed to Customer in accordance with the terms and conditions hereunder. Capitalized terms not defined under this Agreement 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.
1.1. Customer shall be granted a type of license to use the Software as set forth in the Order Form, and use of the Software 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 (as set forth in the Order Form):
1.1.1. Evaluation License. For the Software designated as provided under an Evaluation License, ScyllaDB grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the Software for a 90 days period commencing as of the Effective Date, subject to the parameters contained in the applicable Order Form, for the sole purpose of evaluating the Software and determining whether you wish to purchase an Enterprise License (the “Evaluation License”).
1.1.2. Development License. For the Software designated as provided under a Development License, ScyllaDB grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the Software, subject to the parameters contained in the applicable Order Form, for the sole purpose of developing and testing the Software in order to determine its the compatibility to your internal systems (the “Development License”). For the avoidance of doubt, in case you wish to use the Software for any purpose other than as permitted under this Development License, you must first contact ScyllaDB and purchase an Enterprise License.
1.1.3. Enterprise License. For the Software designated as provided under an Enterprise License, ScyllaDB grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the Software, subject to the parameters contained in the applicable Order Form (the “Enterprise License”).
1.2. Use Restrictions. Under any of the licenses granted in an Order Form or stated hereunder, Customer shall not: (i) transfer the Software or any portions of the Software to any other party except as expressly provided herein; (ii) copy the Software or any portion thereof, except that you may make one copy of the Software for backup purposes, in object code form only, provided that the backup copy must include all copyright or other proprietary notices contained on the original; (iii) reverse engineer, disassemble, or decompile the Software in any form or by any means; (iv) modify or create derivative works of the Software; (v) incorporate the Software into the structure, machinery or controls of any aircraft, other aerial device, military vehicle, hovercraft, waterborne craft or any medical equipment; (vi) distribute, sell, sublicense or otherwise transfer or provide access to the Software to any third party, including, without limitation, provision of database management services through the Software; or (vii) use the Software or any part thereof in any unlawful, harmful or illegal manner.
1.3. The Customer shall be allowed to provide access to third parties to the Software, solely as may be required to perform or maintain the Services for the Customer’s internal business purposes only, in accordance with the terms and conditions of the relevant license, and provided that the Customer shall be fully responsible for any damages caused as a result of such access.
1.4. To ensure compliance with the terms of this Agreement, during the term of this Agreement and for a period of three years thereafter, ScyllaDB (or an agent bound by customary confidentiality undertakings on its behalf) may audit the books, records and logs of the Customer which are related to the Customer’s use of the Software. Such audit may be conducted once per year, following at least ten days’ prior written notice, during regular business hours. The cost of such audit shall be borne by ScyllaDB unless it is determined that the Customer has materially breached this Agreement or has made use of the Software which exceeds in a manner that is not negligible the Software orderd under any Order Form. Any excess use will be charged to the Customer at ScyllaDB’s then-applicable list prices plus 15% percent.
2. PROPRIETARY RIGHTS
2.1. ScyllaDB retains ownership of all rights, interests and title in the Software, Documentation, or any programing tools provided by ScyllaDB, and in the copies thereof and Customer acknowledges that all rights, title and interest in and to the Software, Documentation, or any programing tools provided by ScyllaDB, 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 sole and exclusive ownership of ScyllaDB, subject only to the rights and licenses expressly granted by ScyllaDB hereunder. Customer shall make no claim of right to any Software to be supplied by ScyllaDB hereunder and acknowledges that as between ScyllaDB and Customer, such Software is proprietary to ScyllaDB.
2.2. For the purpose of this Agreement the term “Documentation” means the specifications, design documents and analyses, programming tools, plans, models, flow charts, reports and drawings, documentation and any other descriptions related to the Software as may be provided by ScyllaDB to Customer from time to time, which in any event are designed to explain the intended functionality of the Software and to assist in the installation, use and configuration of the Software.
2.3. Except as expressly granted in this Agreement, no license or right is granted to Customer by implication, estoppel or otherwise with respect to the Software or any other intellectual property rights of ScyllaDB.
3. ORDERS, PAYMENTS AND INVOICING
3.1. All Orders Forms are binding and non-cancellable unless explicitly set forth in the applicable 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 pre-condition to the effectiveness of this Agreement or the binding effect of the related Order Form.
3.2. The fees for the Software and Services shall be as set forth on the applicable Order Form, and shall be subject to the following provisions:
3.2.1. Any fees, quotes or any price lists attached to any Order Form shall be relevant during the term set forth in such Order Form, for up to the maximum number of Licenses purchased or as set to be purchased under such Order Form.
3.2.2. In case Customer wishes to buy additional Licenses in an amount which exceeds the amount set in the applicable Order Form, the fees for such additional licenses or products shall be in accordance with the prices offered at such time by ScyllaDB, and any pervious discounts shall not apply, unless agreed otherwise in writing by the Parties in a new Order Form.
3.2.3. It is agreed that any discounts, payment terms or other special terms afforded by ScyllaDB in any Order Form are contingent upon the completion in full of the applicable Order Form. If, for any reason, the Customer does not complete the full order contained in an Order Form, then it is agreed that all prices contained in such an Order Form will automatically revert to ScyllaDB’s then-applicable list price and shall be due and payable (including any retroactive adjustment of fees paid prior to such time) in accordance with the terms of this Agreement.
3.3. Taxes. All prices stated in an applicable Order Form are net amounts payable to ScyllaDB and are exclusive of all federal, state and local excise, sales, use, value-added, occupational, levies, assessments, import duties and like taxes which may be imposed by any governmental entity in connection with any transaction contemplated by this Agreement and/or the Order Form (excluding any taxes assessed against ScyllaDB’s net income). It is hereby clarified that Customer shall be fully responsible to pay any indirect taxes, including, among others, sales, use, value-added, levies, or any other taxes which may be imposed in connection to this Agreement, even if not stated in the relevant invoice (excluding any taxes assessed against ScyllaDB’s net income) and Customer shall not be entitled to withhold or deduct any such taxes from the consideration.
3.4. Unless expressly stated otherwise in the applicable Order Form:
3.4.1. Fees are invoiced annually in advance.
3.4.2. Invoice shall be issued and delivered to the Customer digitally upon the earlier of the Effective Date or the execution date of the Order Form.
3.4.3. Payment of invoices is due within 30 days from date of invoice.
3.4.4. All payments shall be made in U.S. Dollars.
3.5. Each payment to be made by Customer hereunder in respect of the Services shall be made without set-off, withholding, counterclaim, reduction or diminution of any kind or nature.
3.6. Late Payments; Suspension. 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 is late on payment for the Services, Customer will be notified and given 7 days to rectify the issue and resume payment. If payment is not made, ScyllaDB may terminate the Agreement for breach pursuant to the terms and conditions hereunder.
3.7. Refunds. In the event of termination of this Agreement due to a material breach by ScyllaDB, ScyllaDB shall refund any prepaid unused fees paid for such Software or Services by Customer.
3.8. Except in the event of termination of this Agreement due to a material breach by ScyllaDB, no refund, full, partial or pro-rated, shall be provided, and no obligation to pay shall be deemed waived, with respect to any Services (including, for avoidance of doubt, any subscriptions) appearing in any duly executed Order Form, whether the Services have already commenced or not.
4.1. 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 4.
4.2. 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.
4.3. 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.
5. DATA PROTECTION
The Data Protection Agreement, which includes all data protection obligations of the parties under this Agreement, is incorporated herein as an integral part of this Agreement and is available at: Data Processing Agreement
6. WARRANTIES; DISCLAIMER OF WARRANTIES
6.1. ScyllaDB represents and warrants that:
6.1.1. it is not bound by or a party to any agreement or understanding with any third party that interferes with or shall interfere with its right to perform its obligations under this Agreement and license the Software hereunder;
6.1.2. the Software to be provided under this Agreement, as well as any medium used to provide such Software, to ScyllaDB’s knowledge, will be free of viruses, worms, malware, Trojan horses, time bombs, back or trap doors or any other debilitating or disabling devices or malicious code;
6.1.3. as of the date of delivery of the Software and for a period of 45 days thereafter, the Software will perform (i) materially in accordance with the Documentation provided by ScyllaDB, and (ii) reasonably in accordance with the Software’s intended functionality (“Warranty Period”);
6.1.4. any Support shall be performed (i) in accordance with the ScyllaDB Support Policy, and is available at Scylla Enterprise SLA, (ii) by persons with the proper skill, training and background, and (ii) consistent with generally accepted industry standards.
6.2. As a remedy for any breach of the warranties in this Agreement, 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 days), Customer shall have the right to terminate this Agreement (including any Order Forms).
6.3. Following the lapse of the Warranty Period, any malfunctions or non-conforming defective or non-conforming Software, Documentation or Services shall be governed by ScyllaDB’s Service Policy.
6.4. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT, YOU AGREE THAT SCYLLADB HAS MADE NO EXPRESS WARRANTIES TO YOU REGARDING THE SOFTWARE AND THAT THE SOFTWARE IS BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. SCYLLADB DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE; EXPRESS OR IMPLIED; INCLUDING; WITHOUT LIMITATION; ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; MERCHANTABLE QUALITY OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7. LIMITATION OF LIABILITY
7.1. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL SCYLLADB BE LIABLE TO YOU FOR ANY LOSS OF USE; INTERRUPTION OF BUSINESS; OR ANY DIRECT; 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.
7.2. Except as otherwise explicitly set forth in this Agreement 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 paid and due 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.
7.3. THE PROVISIONS OF THIS SECTION 6 SHALL NOT APPLY TO ANY CLAIM RESULTING FROM: (i) A Party’s gross negligence, willful misconduct or fraud; (ii) Customer’s breach of Section 1 (Licenses), Section 2 (Use Restrictions), Section 2 (Proprietary Rights); OR (III) Either party’s breach of Section 4 (Confidentiality).
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1. Indemnity Obligation and Conditions. 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, database right 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 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, provided, however, that no settlement of an Infringement Claim that involves a remedy other than the payment of money by ScyllaDB shall be entered into without the consent of Customer, which consent will not be unreasonably withheld; (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.
8.2. 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 modified 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 by ScyllaDB; (iv) results from Customer’s use of the Software following the termination of the Agreement.
8.3. In the event that Customer is enjoined or prevented from using any Software as a result of an Infringement Claim, ScyllaDB agrees, to (i) procure the right to continue using the Software or (ii) replace or modify the Software 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 the Software pursuant to clauses (i) and (ii) above, Customer shall have the right to terminate the Software, or this Agreement, and ScyllaDB shall refund to Customer the unearned portion of the amount actually paid to ScyllaDB for the Software.
8.4. THIS SECTION STATES SCYLLADB’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO AN INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OF ANY KIND RELATED TO THE SOFTWARE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
9. EXPORT CONTROL
9.1. 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.
10. TERM, TERMINATION OF THIS AGREEMENT
10.1. This Agreement shall be in effect as of the Effective Date for the duration specified under the Order Form unless earlier terminated in accordance with this Section. Your right to use the Software shall end immediately if you fail to comply with any of the terms set forth in this Agreement, and you fail to correct such failure within 30 days after being notified in writing of such failure, except that for breaches of Section 2 above, ScyllaDB shall be entitled to immediately terminate this Agreement, in which case you shall destroy all copies of the Software. Customer may terminate this Agreement in the event ScyllaDB materially breaches this Agreement or an Order Form and fails to remedy such breach within 30 days after receiving written notice of the breach from Customer.
10.2. The provisions of Sections 2 – 7, 2, 10 and 11, as well as those provisions which by their terms are intended to survive, shall survive the expiration or termination of this Agreement for any reason. Immediately following termination of this Agreement Customer shall pay to ScyllaDB all payable Fees in accordance with the payment terms of the Order Form, including with respect to payments following such termination which shall be invoiced by ScyllaDB to Customer. Furthermore, Customer shall cease all use of the Software following termination of this Agreement and the licenses granted hereunder shall immediately terminate at the termination date.
10.3. In the event of a termination (except for termination due to a material breach by Customer) or expiration of this Agreement, this Agreement shall, 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. During the Transition Period, Customer shall continue to pay the fees paid by Customer at the time of such termination or expiration and the Parties shall comply with all other terms of this Agreement.
11. GENERAL PROVISIONS
11.1 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 the 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.
11.2. 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).
11.3. Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws 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 or in 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.
11.4. Integration. This Agreement 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.
11.5. 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.
11.6. 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.
11.7. 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.
11.8. 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.