Master Subscription Agreement (MSA)
Master Subscription Agreement
Terms and Conditions
These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between Aerospike, Inc., a Delaware corporation (“Aerospike”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms and Conditions, together with all Order Forms (as defined below), constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for a Service (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control of either party. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Cloud Services” means Aerospike’s cloud products set forth in the applicable Order Form.
“Confidential Information” means all information shared by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) during the Term, whether in oral, written, electronic, or other form, that is identified as confidential or proprietary information or that a reasonable person would understand to be confidential or proprietary in nature. However, Confidential Information does not include information that: (a) is made generally available to the public without any obligation of confidentiality or breach of this Agreement, (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, (c) is disclosed to the Receiving Party by a third party without confidentiality obligations, or (d) was in the Receiving Party’s lawful possession without restriction prior to disclosure.
“Customer Data” means any Customer content, data, information, or other materials that Customer provides for storage or processing via the Software or Cloud Services.
“Documentation” means any supporting or technical documentation and usage guides for the Services made available on Aerospike’s website, as updated from time-to-time.
“DPA” means the data processing addendum located at https://www.aerospike.com/legal/data-processing-addendum.
“including” means including without limitation.
“Order Form” means an order form, quote, statement of work or other similar document, or online ordering flow completed by Customer, in each case that (a) sets forth the specific Services, subscription term (“Subscription Term”) or other term, and pricing (including any pricing related to excess usage), and (b) references these Terms and Conditions. Each Order Form forms a part of this Agreement.
“Partner” means an Aerospike authorized third-party reseller, distributor, marketplace, or other partner selling subscriptions or other access to certain Services on Aerospike’s behalf.
“Professional Services” means the advisory, consulting, developmental, training, implementation assistance services provided by Aerospike set forth in the applicable Order Form.
“Services” means the Software, Cloud Services, Professional Services and Support set forth in the applicable Order Form (including any related Documentation and associated tools made available by Aerospike in connection therewith).
“Software” means Aerospike’s database software downloaded and deployed within Customer’s own systems and environment or in Customer’s private cloud instance.
“Support” means the support and maintenance services (located at https://aerospike.com/legal/aerospike-support-policy/) purchased by Customer as set forth in the applicable Order Form.
“Users” means Customer’s employees or, solely for the purposes of providing services to Customer, contractors.Access & License; Restrictions.
Cloud Services and Software. Subject to the terms of this Agreement, the applicable Order Form, and Documentation, Aerospike will make the Cloud Services and/or Software available to Customer, and hereby grants Customer the right to use the Cloud Services and/or Software (including to download and deploy the Software, if applicable) solely for Customer’s internal business purposes during the applicable Subscription Term.
Support; Users. Aerospike will use commercially reasonable efforts to provide Support to Customer for such Cloud Services and Software. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Cloud Services or Software and for their compliance with this Agreement.
Software Reporting. Upon Aerospike’s written request, Customer will initiate and deliver to Aerospike an automated diagnostic routine for the Software to determine Customer’s capacity usage and other reasonably requested information. Provided it is not identifiable to Customer, Aerospike will be free to use for development, diagnostic and corrective purposes any data and information contained in the reports, and may allow others to do so.
Excess Usage. Aerospike may conduct periodic wellness checks on Customer’s use of the Services. For any capacity used in excess of the capacity amount purchased in the applicable Order Form (“Excess Usage”), Aerospike will invoice, and Customer agrees to pay, for any Excess Usage according to the payment terms listed in the applicable Order Form. Once an invoice is paid for the Excess Usage, the extra capacity may be used for the remainder of the then-current Subscription Term, subject to the annual contract value for each remaining Order Form period (e.g., for each year of a multi-year subscription) adjusting to include the fees for such Excess Usage.
Affiliates. Customer’s Affiliates may purchase subscriptions or other access to the Services by executing a separate Order Form with Aerospike referencing this Agreement and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.
Aerospike Partners. For any Order Form entered through a Partner, Customer acknowledges and agrees that: (a) Aerospike may share information with such Partner related to Customer’s use and consumption of the Services for account management and billing purposes, (b) Customer will pay such Partner all applicable fees in accordance with pricing, payment terms and other terms in Customer’s agreement with such Partner (“Partner Agreement”), provided that Aerospike may seek payment from Customer where it fails to pay the Partner, (c) the Partner Agreement is not binding on Aerospike, and any disputes related to the Partner Agreement shall be handled directly between Customer and such Partner, (d) any claims for refunds hereunder will be submitted by Customer to such Partner, (e) Partner has no authority to make any changes to this Agreement or make any commitments on Aerospike’s behalf, and (f) in the event of any conflict between this Agreement and a Partner Agreement, this Agreement shall govern as between Aerospike and Customer.
No-Charge Features; Disclaimers. Customer may, at its election, use free products or services, trial products or pre-release alpha, beta, or evaluation features (“No-Charge Features”). Use of No-Charge Features is voluntary and may be terminated by either party at any time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO-CHARGE FEATURES ARE PROVIDED “AS IS” WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES, SERVICE LEVELS, SUPPORT, OBLIGATIONS OR LIABILITY OF ANY KIND.
Intellectual Property. Customer owns all right, title, and interests in and to Customer Data and its Confidential Information. Aerospike owns all right, title, and interests in and to the Services, System Data and its Confidential Information, including any developments or improvements made as a result of Customer feedback or suggestions. “System Data” means data collected by Aerospike regarding the Services that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Services. Aerospike reserves any and all rights not expressly granted in this Agreement.
Data Security.
General Security Terms. Aerospike will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, or disclosure of Customer Data stored or processed via the Cloud Services in accordance with the Aerospike security standards found at https://www.aerospike.com/legal/security (“Security Standards”), which are incorporated herein by reference. Aerospike may update the Security Standards from time-to-time. Customer is solely responsible for properly configuring and using the Cloud Services and maintaining appropriate security, protection, and backup of Customer Data. Customer must not disclose its user credentials to any unauthorized person. Customer will immediately contact Aerospike if it believes any unauthorized activity has occurred in the Cloud Services or if its account information has been lost or stolen. Each party will comply with the DPA, which is deemed part of this Agreement and incorporated herein by reference.
Customer Data. Customer will not provide any protected health information unless it signs a business associate agreement with Aerospike. Customer represents and warrants that it has the necessary rights, licenses, consents, permissions, waivers, and releases to provide Customer Data in connection with its use of the Cloud Services.
Deletion. Except for any Customer Data required to be kept in accordance with applicable privacy laws and regulations, Aerospike will delete any Customer Data from its systems without retaining any copies thereof, other than in accordance with Aerospike’s internal document retention and information policies, upon termination of this Agreement.
Term & Termination.
Term. This Agreement will commence on the date of the initial Order Form and will continue until terminated by either party as set forth below (the “Term”). Each Order Form will automatically renew for additional 1 year periods on Aerospike’s then-current pricing and terms, unless either party provides the other party with notice of non-renewal at least sixty (60) days prior to the expiration of the applicable Order Form.
Termination. Each party may terminate this Agreement upon thirty (30) days prior written notice to the other party if there are no Order Forms in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice: (a) if the other party materially breaches this Agreement or the applicable Order Form and fails to cure such breach within thirty (30) days after receipt of the notice of breach, or where such breach is incapable of being cured; or (b) immediately if a party files for bankruptcy or is the subject of any involuntary filing of bankruptcy, which is not dismissed within sixty (60) days. Aerospike may suspend or terminate this Agreement and Customer’s access to the Services if Customer fails to cure any nonpayment within thirty (30) days after receipt of Aerospike’s failure to pay notice.
Effect of Termination. Upon expiration or termination of this Agreement or the applicable Order Form, Customer will promptly discontinue use of the Services and will pay Aerospike the balance of all fees incurred up to the date of expiration or termination.
Payment.
Fees & Payment. Customer will pay Aerospike all fees identified in the Order Form within thirty (30) days of the invoice date, unless otherwise specified therein and subject to Section 2.4. Aerospike will also separately invoice Customer, and Customer agrees to pay, for capacity used in excess of the quantity purchased in the applicable Order Form. A 2.5% surcharge will be applied to any payments made by credit card. Payment obligations are noncancelable and fees are non-refundable. All fees payable to Aerospike under this Agreement will be paid in United States Dollars (or the currency identified in the applicable Order Form). Except for any fees subject to a good faith dispute, any unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes it was incorrectly billed, Customer must contact Aerospike within sixty (60) days after the invoice date in order to receive an adjustment or credit. Customer is solely responsible for providing complete and accurate billing and contact information to Aerospike, including any changes thereto.
Taxes. All amounts payable by Customer under this Agreement are exclusive of all applicable sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges (collectively, “Taxes”). Customer is responsible for payment of all Taxes, except taxes based on Aerospike’s net income. If Aerospike has the legal obligation to pay or collect Taxes for which the Customer is responsible for, Aerospike will invoice Customer the appropriate amount and Customer will pay said invoice, unless Customer provides Aerospike with a valid tax exemption certificate authorized by the appropriate taxing authority.
Confidentiality; Technology Restrictions.
Confidential Information. Confidential Information will be: (i) held in strict confidence by the Receiving Party, (ii) not used by the Receiving Party except as necessary to perform its obligations or exercise its rights under this Agreement, and (iii) not disclosed by the Receiving Party to any third party except to its representatives who have a legitimate need to know for such purposes and who are bound by confidentiality obligations at least as protective as those set forth herein. The Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own similar information, but in no event less than a reasonable standard of care. This Section 7 will survive termination or expiration of this Agreement for a period of three (3) years following such termination or expiration, except that Confidential Information that constitutes a trade secret under applicable law will be protected for so long as it remains a trade secret.
Procedure. If the Receiving Party is required by law, regulation, or valid court or governmental order to disclose Confidential Information, it may do so provided that it gives Disclosing Party prompt written notice (to the extent legally permitted) to allow Disclosing Party to seek a protective order or otherwise contest or limit such disclosure. The Receiving Party will cooperate reasonably in such efforts and disclose only that portion of Confidential Information legally required to be disclosed.
Return, Destroy, Protect. Upon written request of the Disclosing Party, or upon termination or expiration of this Agreement, the Receiving Party will promptly return or securely destroy all Confidential Information received from the Disclosing Party, except that (a) the Receiving Party may retain copies as required by applicable law or regulation or for the ordinary course of its business practices, and (b) any retained Confidential Information will remain subject to this Section 7 for so long as it qualifies as Confidential Information.
Technology Restrictions. Customer will not, and will not permit any of its Users, Affiliates, or any other third party to, directly or indirectly: (a) create, copy or otherwise make derivative works based on, or otherwise modify any Services, except as permitted under this Agreement; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or other intellectual property from any Services, in whole or in part; (c) circumvent or violate the technical restrictions of any Services; (d) copy, distribute, lease, market, sell, sublicense, rent or otherwise commercialize any Services; (e) use any Services to perform competitive analysis, for benchmarking purposes, for the benefit of a third party, to copy features or functions of the Services, to build similar or competitive products or services, or if it is a direct competitor of Aerospike; (f) use any Services in violation of applicable laws or regulations or outside the scope expressly permitted herein; (g) post, upload, forward, or transmit any file or software code that contains, facilitates, or launches viruses, worms, trojan horses, or any other contaminating or destructive features with respect to any Services, or that otherwise interferes with any Services working as intended; or (h) remove or change any product identification, proprietary, copyright or other notices contained in any Services.
Equitable Relief. Each Party agrees that breach of this Section 7 may cause substantial harm for which damages alone may be an inadequate remedy and the other Party will be entitled to seek appropriate injunctive and other equitable relief, in addition to any other remedies it may have at law, for any such breach.
Warranties; Compliance With Laws, Disclaimers.
Mutual warranties. Each party warrants that (a) it has the legal right and authority to enter into this Agreement and each Order Form, which will constitute a legal, valid, and binding obligation between the parties, (b) the person signing or accepting this Agreement and any Order Form on its behalf or as a duly authorized representative of its business has the authority to bind such party thereto, (c) it is a legal entity in good standing in the jurisdiction of its formation, (d) entering into this Agreement and each Order Form does not violate any third party agreement to which it is bound, and (e) it will use industry standard measures to avoid introducing viruses or other malicious code into the Software and Cloud Services.
Aerospike Warranties. Aerospike warrants that during the term of any applicable Order Form: (a) the Software and Cloud Services will function substantially in accordance with the Documentation (the “Performance Warranty”); and (b) Professional Services and Support will be provided in a professional and workmanlike manner consistent with industry standards (the “Support/Professional Services Warranty”). In the event of any verified breach of the Performance Warranty or Support/Professional Services Warranty, Aerospike will use commercially reasonable efforts to correct the breach, at no additional charge to Customer. These warranties will not apply unless Customer provides written notice of any claimed breach within thirty (30) days from the incident (in the case of the Performance Warranty) or delivery of the applicable Professional Services or Support (in the case of the Support/Professional Services Warranty).
Compliance With Laws. Each party will comply with all applicable laws and regulations in exercising its rights and performing its obligations in this Agreement.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND AEROSPIKE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. AEROSPIKE DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. AEROSPIKE WILL NOT BE LIABLE FOR PROBLEMS INHERENT IN THE USE OF THE INTERNET OR FOR ISSUES RELATED TO CUSTOMER’S NETWORK OR CLOUD SERVICE PROVIDER ACCOUNT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AEROSPIKE DOES NOT WARRANT AND EXPRESSLY DISCLAIMS THAT ANY SOFTWARE OR CLOUD SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME, OR THE RESULTS OF USING THE SOFTWARE OR CLOUD SERVICES WILL MEET CUSTOMER’S REQUIREMENTS AND AEROSPIKE WILL NOT BE LIABLE FOR CUSTOMER’S INSUFFICIENT TESTING OF ANY SOFTWARE OR CLOUD SERVICES PRIOR TO DEPLOYING IN A LIVE ENVIRONMENT.
Indemnity. Customer will defend and indemnify Aerospike against any claims, demands, suits, or proceedings made or brought against Aerospike by a third party, including any associated damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent arising from: (a) Customer’s use of the Services; (b) Customer Data or its use infringing upon third party rights; (c) Customer’s breach of this Agreement; or (d) Customer’s failure to provide the required notices, consents, permissions and rights for Aerospike and its subprocessors to lawfully process Customer Data contemplated in this Agreement. Aerospike must notify Customer promptly in writing of any Claims, give Customer sole control of the defense thereof and any related settlement negotiations, and cooperate and assist in such defense at Customer’s reasonable request and expense (including reasonable attorneys’ fees). Notwithstanding the foregoing, Customer will not settle any claim without Aerospike’s prior written consent if the settlement would require Aerospike to: (i) pay any amounts; or (ii) make an admission of wrongdoing or fault. Nothing in this Section prohibits Aerospike from participating in the defense of any claim at its own expense.
Limitation of Liability.
Indirect Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA), REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF SUCH POSSIBILITY OF LOSSES OR DAMAGES ARISING.
Direct Damages. EXCEPT AS SET FORTH IN SECTION 10.3 BELOW AND EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES TO AEROSPIKE FOR THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Exclusions. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 10, NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY’S LIABILITY FOR: (A) ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) CUSTOMER’S INDEMNITY OBLIGATIONS; AND (C) ITS INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Miscellaneous.
Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets or business related to this Agreement. All other transfers or assignments in breach of the foregoing will be null and void.
Amendments. Aerospike reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Except as set forth in this Section, no amendment, modification, or supplement of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement.
Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless such waiver is agreed to in writing signed by a duly authorized representative on behalf of the waiving party.
Severability. If any portion of this Agreement is adjudicated by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
Notices. All notices required or permitted under this Agreement will be in writing and will be delivered by personal delivery, certified overnight delivery, registered mail (return receipt requested), or email and will be deemed delivered upon receipt. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Aerospike Software or Cloud Services account (or such other address designated pursuant to this Section). Notices to Aerospike must be sent to the following address (or such other address designated pursuant to this Section):
Aerospike, Inc.W. El Camino Real, Suite 700
Mountain View, CA 94040
Attn: Legal
Email: legal@aerospike.comMarketing Rights. Aerospike will have the right to use Customer’s name and logo for the limited purpose of identifying Customer as a customer on its website and in its marketing, promotional, and advertising materials. Subject to Customer’s prior written consent (which consent will not be unreasonably withheld), Customer agrees to participate in a case study, win release, and/or to present at an Aerospike event.
Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to any cause beyond such party’s reasonable control, including acts of God, labor conditions, systemic electrical, computer related attacks, hacking, internet service provider failures, telecommunications, or other utility failure, earthquakes, flood, fires, storms, acts of terrorism, war, or government acts or orders (each a “Force Majeure Event”). The party affected by a Force Majeure Event will give notice to the other party of such Force Majeure Event and will take all reasonable actions to minimize the consequences of and to try to resolve such event.
Entire Agreement; Integration. This Agreement (consisting of these Terms and Conditions and all applicable Order Forms) constitutes the entire agreement between the parties and supersedes all previous written and oral communications with respect to the subject matter hereof. Any additional or varying terms stated in a purchase order or other ordering document (except for Order Forms) will not form any part of this Agreement, and such terms and conditions will be null and void. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form will control.
Governing Law; Jurisdiction & Venue. This Agreement will be governed by the laws of the State of California, without regard to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any disputes under this Agreement or any Order Form will be brought in the state or federal courts located in Santa Clara, California. The prevailing party in any dispute under this Agreement or any Order Form will be entitled to recover all reasonable fees (including reasonable attorneys’ fees), costs and expenses.
Independent Contractors; No Third Party Beneficiaries. The parties to this Agreement are independent contracting parties. Neither party will have or hold itself out as having any right or authority to incur any obligation on behalf of the other party. This Agreement will not be construed to create an association, joint venture, agent relationship, or partnership between the parties or to impose any partnership liability on either party. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
Export Controls. The Services and related technology may be subject to export controls and trade sanctions administered or enforced by the United States and other jurisdictions. Customer agrees not to use or export (directly or indirectly) the Services or related technology in violation of applicable export laws or regulations. Customer represents and warrants that: (a) it is not listed on any United States government list of prohibited or restricted parties or located in (or a national of) a country subject to a United States government embargo or that has been designated by the United States government as a “terrorist supporting” country; and (b) Customer and its Users will not access or use the Services in violation of any United States export embargo, prohibition, or restriction.
Master Subscription Agreement (MSA)
Master Subscription Agreement
Terms and Conditions
These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between Aerospike, Inc., a Delaware corporation (“Aerospike”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms and Conditions, together with all Order Forms (as defined below), constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for a Service (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control of either party. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Cloud Services” means Aerospike’s cloud products set forth in the applicable Order Form.
“Confidential Information” means all information shared by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) during the Term, whether in oral, written, electronic, or other form, that is identified as confidential or proprietary information or that a reasonable person would understand to be confidential or proprietary in nature. However, Confidential Information does not include information that: (a) is made generally available to the public without any obligation of confidentiality or breach of this Agreement, (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, (c) is disclosed to the Receiving Party by a third party without confidentiality obligations, or (d) was in the Receiving Party’s lawful possession without restriction prior to disclosure.
“Customer Data” means any Customer content, data, information, or other materials that Customer provides for storage or processing via the Software or Cloud Services.
“Documentation” means any supporting or technical documentation and usage guides for the Services made available on Aerospike’s website, as updated from time-to-time.
“DPA” means the data processing addendum located at https://www.aerospike.com/legal/data-processing-addendum.
“including” means including without limitation.
“Order Form” means an order form, quote, statement of work or other similar document, or online ordering flow completed by Customer, in each case that (a) sets forth the specific Services, subscription term (“Subscription Term”) or other term, and pricing (including any pricing related to excess usage), and (b) references these Terms and Conditions. Each Order Form forms a part of this Agreement.
“Partner” means an Aerospike authorized third-party reseller, distributor, marketplace, or other partner selling subscriptions or other access to certain Services on Aerospike’s behalf.
“Professional Services” means the advisory, consulting, developmental, training, implementation assistance services provided by Aerospike set forth in the applicable Order Form.
“Services” means the Software, Cloud Services, Professional Services and Support set forth in the applicable Order Form (including any related Documentation and associated tools made available by Aerospike in connection therewith).
“Software” means Aerospike’s database software downloaded and deployed within Customer’s own systems and environment or in Customer’s private cloud instance.
“Support” means the support and maintenance services (located at https://aerospike.com/legal/aerospike-support-policy/) purchased by Customer as set forth in the applicable Order Form.
“Users” means Customer’s employees or, solely for the purposes of providing services to Customer, contractors.Access & License; Restrictions.
Cloud Services and Software. Subject to the terms of this Agreement, the applicable Order Form, and Documentation, Aerospike will make the Cloud Services and/or Software available to Customer, and hereby grants Customer the right to use the Cloud Services and/or Software (including to download and deploy the Software, if applicable) solely for Customer’s internal business purposes during the applicable Subscription Term.
Support; Users. Aerospike will use commercially reasonable efforts to provide Support to Customer for such Cloud Services and Software. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Cloud Services or Software and for their compliance with this Agreement.
Software Reporting. Upon Aerospike’s written request, Customer will initiate and deliver to Aerospike an automated diagnostic routine for the Software to determine Customer’s capacity usage and other reasonably requested information. Provided it is not identifiable to Customer, Aerospike will be free to use for development, diagnostic and corrective purposes any data and information contained in the reports, and may allow others to do so.
Excess Usage. Aerospike may conduct periodic wellness checks on Customer’s use of the Services. For any capacity used in excess of the capacity amount purchased in the applicable Order Form (“Excess Usage”), Aerospike will invoice, and Customer agrees to pay, for any Excess Usage according to the payment terms listed in the applicable Order Form. Once an invoice is paid for the Excess Usage, the extra capacity may be used for the remainder of the then-current Subscription Term, subject to the annual contract value for each remaining Order Form period (e.g., for each year of a multi-year subscription) adjusting to include the fees for such Excess Usage.
Affiliates. Customer’s Affiliates may purchase subscriptions or other access to the Services by executing a separate Order Form with Aerospike referencing this Agreement and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.
Aerospike Partners. For any Order Form entered through a Partner, Customer acknowledges and agrees that: (a) Aerospike may share information with such Partner related to Customer’s use and consumption of the Services for account management and billing purposes, (b) Customer will pay such Partner all applicable fees in accordance with pricing, payment terms and other terms in Customer’s agreement with such Partner (“Partner Agreement”), provided that Aerospike may seek payment from Customer where it fails to pay the Partner, (c) the Partner Agreement is not binding on Aerospike, and any disputes related to the Partner Agreement shall be handled directly between Customer and such Partner, (d) any claims for refunds hereunder will be submitted by Customer to such Partner, (e) Partner has no authority to make any changes to this Agreement or make any commitments on Aerospike’s behalf, and (f) in the event of any conflict between this Agreement and a Partner Agreement, this Agreement shall govern as between Aerospike and Customer.
No-Charge Features; Disclaimers. Customer may, at its election, use free products or services, trial products or pre-release alpha, beta, or evaluation features (“No-Charge Features”). Use of No-Charge Features is voluntary and may be terminated by either party at any time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO-CHARGE FEATURES ARE PROVIDED “AS IS” WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES, SERVICE LEVELS, SUPPORT, OBLIGATIONS OR LIABILITY OF ANY KIND.
Intellectual Property. Customer owns all right, title, and interests in and to Customer Data and its Confidential Information. Aerospike owns all right, title, and interests in and to the Services, System Data and its Confidential Information, including any developments or improvements made as a result of Customer feedback or suggestions. “System Data” means data collected by Aerospike regarding the Services that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Services. Aerospike reserves any and all rights not expressly granted in this Agreement.
Data Security.
General Security Terms. Aerospike will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, or disclosure of Customer Data stored or processed via the Cloud Services in accordance with the Aerospike security standards found at https://www.aerospike.com/legal/security (“Security Standards”), which are incorporated herein by reference. Aerospike may update the Security Standards from time-to-time. Customer is solely responsible for properly configuring and using the Cloud Services and maintaining appropriate security, protection, and backup of Customer Data. Customer must not disclose its user credentials to any unauthorized person. Customer will immediately contact Aerospike if it believes any unauthorized activity has occurred in the Cloud Services or if its account information has been lost or stolen. Each party will comply with the DPA, which is deemed part of this Agreement and incorporated herein by reference.
Customer Data. Customer will not provide any protected health information unless it signs a business associate agreement with Aerospike. Customer represents and warrants that it has the necessary rights, licenses, consents, permissions, waivers, and releases to provide Customer Data in connection with its use of the Cloud Services.
Deletion. Except for any Customer Data required to be kept in accordance with applicable privacy laws and regulations, Aerospike will delete any Customer Data from its systems without retaining any copies thereof, other than in accordance with Aerospike’s internal document retention and information policies, upon termination of this Agreement.
Term & Termination.
Term. This Agreement will commence on the date of the initial Order Form and will continue until terminated by either party as set forth below (the “Term”). Each Order Form will automatically renew for additional 1 year periods on Aerospike’s then-current pricing and terms, unless either party provides the other party with notice of non-renewal at least sixty (60) days prior to the expiration of the applicable Order Form.
Termination. Each party may terminate this Agreement upon thirty (30) days prior written notice to the other party if there are no Order Forms in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice: (a) if the other party materially breaches this Agreement or the applicable Order Form and fails to cure such breach within thirty (30) days after receipt of the notice of breach, or where such breach is incapable of being cured; or (b) immediately if a party files for bankruptcy or is the subject of any involuntary filing of bankruptcy, which is not dismissed within sixty (60) days. Aerospike may suspend or terminate this Agreement and Customer’s access to the Services if Customer fails to cure any nonpayment within thirty (30) days after receipt of Aerospike’s failure to pay notice.
Effect of Termination. Upon expiration or termination of this Agreement or the applicable Order Form, Customer will promptly discontinue use of the Services and will pay Aerospike the balance of all fees incurred up to the date of expiration or termination.
Payment.
Fees & Payment. Customer will pay Aerospike all fees identified in the Order Form within thirty (30) days of the invoice date, unless otherwise specified therein and subject to Section 2.4. Aerospike will also separately invoice Customer, and Customer agrees to pay, for capacity used in excess of the quantity purchased in the applicable Order Form. A 2.5% surcharge will be applied to any payments made by credit card. Payment obligations are noncancelable and fees are non-refundable. All fees payable to Aerospike under this Agreement will be paid in United States Dollars (or the currency identified in the applicable Order Form). Except for any fees subject to a good faith dispute, any unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes it was incorrectly billed, Customer must contact Aerospike within sixty (60) days after the invoice date in order to receive an adjustment or credit. Customer is solely responsible for providing complete and accurate billing and contact information to Aerospike, including any changes thereto.
Taxes. All amounts payable by Customer under this Agreement are exclusive of all applicable sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges (collectively, “Taxes”). Customer is responsible for payment of all Taxes, except taxes based on Aerospike’s net income. If Aerospike has the legal obligation to pay or collect Taxes for which the Customer is responsible for, Aerospike will invoice Customer the appropriate amount and Customer will pay said invoice, unless Customer provides Aerospike with a valid tax exemption certificate authorized by the appropriate taxing authority.
Confidentiality; Technology Restrictions.
Confidential Information. Confidential Information will be: (i) held in strict confidence by the Receiving Party, (ii) not used by the Receiving Party except as necessary to perform its obligations or exercise its rights under this Agreement, and (iii) not disclosed by the Receiving Party to any third party except to its representatives who have a legitimate need to know for such purposes and who are bound by confidentiality obligations at least as protective as those set forth herein. The Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own similar information, but in no event less than a reasonable standard of care. This Section 7 will survive termination or expiration of this Agreement for a period of three (3) years following such termination or expiration, except that Confidential Information that constitutes a trade secret under applicable law will be protected for so long as it remains a trade secret.
Procedure. If the Receiving Party is required by law, regulation, or valid court or governmental order to disclose Confidential Information, it may do so provided that it gives Disclosing Party prompt written notice (to the extent legally permitted) to allow Disclosing Party to seek a protective order or otherwise contest or limit such disclosure. The Receiving Party will cooperate reasonably in such efforts and disclose only that portion of Confidential Information legally required to be disclosed.
Return, Destroy, Protect. Upon written request of the Disclosing Party, or upon termination or expiration of this Agreement, the Receiving Party will promptly return or securely destroy all Confidential Information received from the Disclosing Party, except that (a) the Receiving Party may retain copies as required by applicable law or regulation or for the ordinary course of its business practices, and (b) any retained Confidential Information will remain subject to this Section 7 for so long as it qualifies as Confidential Information.
Technology Restrictions. Customer will not, and will not permit any of its Users, Affiliates, or any other third party to, directly or indirectly: (a) create, copy or otherwise make derivative works based on, or otherwise modify any Services, except as permitted under this Agreement; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or other intellectual property from any Services, in whole or in part; (c) circumvent or violate the technical restrictions of any Services; (d) copy, distribute, lease, market, sell, sublicense, rent or otherwise commercialize any Services; (e) use any Services to perform competitive analysis, for benchmarking purposes, for the benefit of a third party, to copy features or functions of the Services, to build similar or competitive products or services, or if it is a direct competitor of Aerospike; (f) use any Services in violation of applicable laws or regulations or outside the scope expressly permitted herein; (g) post, upload, forward, or transmit any file or software code that contains, facilitates, or launches viruses, worms, trojan horses, or any other contaminating or destructive features with respect to any Services, or that otherwise interferes with any Services working as intended; or (h) remove or change any product identification, proprietary, copyright or other notices contained in any Services.
Equitable Relief. Each Party agrees that breach of this Section 7 may cause substantial harm for which damages alone may be an inadequate remedy and the other Party will be entitled to seek appropriate injunctive and other equitable relief, in addition to any other remedies it may have at law, for any such breach.
Warranties; Compliance With Laws, Disclaimers.
Mutual warranties. Each party warrants that (a) it has the legal right and authority to enter into this Agreement and each Order Form, which will constitute a legal, valid, and binding obligation between the parties, (b) the person signing or accepting this Agreement and any Order Form on its behalf or as a duly authorized representative of its business has the authority to bind such party thereto, (c) it is a legal entity in good standing in the jurisdiction of its formation, (d) entering into this Agreement and each Order Form does not violate any third party agreement to which it is bound, and (e) it will use industry standard measures to avoid introducing viruses or other malicious code into the Software and Cloud Services.
Aerospike Warranties. Aerospike warrants that during the term of any applicable Order Form: (a) the Software and Cloud Services will function substantially in accordance with the Documentation (the “Performance Warranty”); and (b) Professional Services and Support will be provided in a professional and workmanlike manner consistent with industry standards (the “Support/Professional Services Warranty”). In the event of any verified breach of the Performance Warranty or Support/Professional Services Warranty, Aerospike will use commercially reasonable efforts to correct the breach, at no additional charge to Customer. These warranties will not apply unless Customer provides written notice of any claimed breach within thirty (30) days from the incident (in the case of the Performance Warranty) or delivery of the applicable Professional Services or Support (in the case of the Support/Professional Services Warranty).
Compliance With Laws. Each party will comply with all applicable laws and regulations in exercising its rights and performing its obligations in this Agreement.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND AEROSPIKE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. AEROSPIKE DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. AEROSPIKE WILL NOT BE LIABLE FOR PROBLEMS INHERENT IN THE USE OF THE INTERNET OR FOR ISSUES RELATED TO CUSTOMER’S NETWORK OR CLOUD SERVICE PROVIDER ACCOUNT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AEROSPIKE DOES NOT WARRANT AND EXPRESSLY DISCLAIMS THAT ANY SOFTWARE OR CLOUD SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME, OR THE RESULTS OF USING THE SOFTWARE OR CLOUD SERVICES WILL MEET CUSTOMER’S REQUIREMENTS AND AEROSPIKE WILL NOT BE LIABLE FOR CUSTOMER’S INSUFFICIENT TESTING OF ANY SOFTWARE OR CLOUD SERVICES PRIOR TO DEPLOYING IN A LIVE ENVIRONMENT.
Indemnity. Customer will defend and indemnify Aerospike against any claims, demands, suits, or proceedings made or brought against Aerospike by a third party, including any associated damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent arising from: (a) Customer’s use of the Services; (b) Customer Data or its use infringing upon third party rights; (c) Customer’s breach of this Agreement; or (d) Customer’s failure to provide the required notices, consents, permissions and rights for Aerospike and its subprocessors to lawfully process Customer Data contemplated in this Agreement. Aerospike must notify Customer promptly in writing of any Claims, give Customer sole control of the defense thereof and any related settlement negotiations, and cooperate and assist in such defense at Customer’s reasonable request and expense (including reasonable attorneys’ fees). Notwithstanding the foregoing, Customer will not settle any claim without Aerospike’s prior written consent if the settlement would require Aerospike to: (i) pay any amounts; or (ii) make an admission of wrongdoing or fault. Nothing in this Section prohibits Aerospike from participating in the defense of any claim at its own expense.
Limitation of Liability.
Indirect Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA), REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF SUCH POSSIBILITY OF LOSSES OR DAMAGES ARISING.
Direct Damages. EXCEPT AS SET FORTH IN SECTION 10.3 BELOW AND EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES TO AEROSPIKE FOR THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Exclusions. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 10, NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY’S LIABILITY FOR: (A) ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) CUSTOMER’S INDEMNITY OBLIGATIONS; AND (C) ITS INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Miscellaneous.
Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets or business related to this Agreement. All other transfers or assignments in breach of the foregoing will be null and void.
Amendments. Aerospike reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Except as set forth in this Section, no amendment, modification, or supplement of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement.
Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless such waiver is agreed to in writing signed by a duly authorized representative on behalf of the waiving party.
Severability. If any portion of this Agreement is adjudicated by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
Notices. All notices required or permitted under this Agreement will be in writing and will be delivered by personal delivery, certified overnight delivery, registered mail (return receipt requested), or email and will be deemed delivered upon receipt. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Aerospike Software or Cloud Services account (or such other address designated pursuant to this Section). Notices to Aerospike must be sent to the following address (or such other address designated pursuant to this Section):
Aerospike, Inc.W. El Camino Real, Suite 700
Mountain View, CA 94040
Attn: Legal
Email: legal@aerospike.comMarketing Rights. Aerospike will have the right to use Customer’s name and logo for the limited purpose of identifying Customer as a customer on its website and in its marketing, promotional, and advertising materials. Subject to Customer’s prior written consent (which consent will not be unreasonably withheld), Customer agrees to participate in a case study, win release, and/or to present at an Aerospike event.
Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to any cause beyond such party’s reasonable control, including acts of God, labor conditions, systemic electrical, computer related attacks, hacking, internet service provider failures, telecommunications, or other utility failure, earthquakes, flood, fires, storms, acts of terrorism, war, or government acts or orders (each a “Force Majeure Event”). The party affected by a Force Majeure Event will give notice to the other party of such Force Majeure Event and will take all reasonable actions to minimize the consequences of and to try to resolve such event.
Entire Agreement; Integration. This Agreement (consisting of these Terms and Conditions and all applicable Order Forms) constitutes the entire agreement between the parties and supersedes all previous written and oral communications with respect to the subject matter hereof. Any additional or varying terms stated in a purchase order or other ordering document (except for Order Forms) will not form any part of this Agreement, and such terms and conditions will be null and void. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form will control.
Governing Law; Jurisdiction & Venue. This Agreement will be governed by the laws of the State of California, without regard to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any disputes under this Agreement or any Order Form will be brought in the state or federal courts located in Santa Clara, California. The prevailing party in any dispute under this Agreement or any Order Form will be entitled to recover all reasonable fees (including reasonable attorneys’ fees), costs and expenses.
Independent Contractors; No Third Party Beneficiaries. The parties to this Agreement are independent contracting parties. Neither party will have or hold itself out as having any right or authority to incur any obligation on behalf of the other party. This Agreement will not be construed to create an association, joint venture, agent relationship, or partnership between the parties or to impose any partnership liability on either party. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
Export Controls. The Services and related technology may be subject to export controls and trade sanctions administered or enforced by the United States and other jurisdictions. Customer agrees not to use or export (directly or indirectly) the Services or related technology in violation of applicable export laws or regulations. Customer represents and warrants that: (a) it is not listed on any United States government list of prohibited or restricted parties or located in (or a national of) a country subject to a United States government embargo or that has been designated by the United States government as a “terrorist supporting” country; and (b) Customer and its Users will not access or use the Services in violation of any United States export embargo, prohibition, or restriction.