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 be the case if you sign up for Services 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 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 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.
“Platform” means Aerospike’s database offerings, including (a) Cloud Services, (b) any Aerospike-managed service offerings (including Aerospike Cloud Managed Service (“ACMS”)), and (c) the Self-Managed Database Infrastructure.
“Professional Services” means the advisory, consulting, developmental, training, implementation assistance services provided by Aerospike set forth in the applicable Order Form.
"Self-Managed Database Infrastructure" means Aerospike's proprietary database infrastructure system, deployed and operated entirely within Customer's own servers or Customer-controlled cloud instances, which provides database infrastructure capacity on a per-terabyte basis between Customer's applications and Customer's underlying compute environment. The Self-Managed Database Infrastructure is not hosted, operated, or maintained by Aerospike and runs independently of Aerospike's systems following deployment. For the avoidance of doubt, the Self-Managed Database Infrastructure is distinct from the Cloud Services.
“Services” means the Platform, together with any related Documentation, associated tools made available by Aerospike in connection therewith, and any Professional Services and Support set forth in the applicable Order Form. Where an Order Form specifies only Self-Managed Database Infrastructure, provisions applicable solely to Cloud Services do not apply, and where an Order Form specifies only Cloud Services, provisions applicable solely to Self-Managed Database Infrastructure do not apply.
"Subscription" means the right granted to Customer under Section 2.1(a) to deploy and operate the Self-Managed Database Infrastructure within Customer's own environment for the capacity and term set forth in the applicable Order Form, together with the associated Support and operational engagement.
“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 & Use; Restrictions.
Access and Use Rights.
Section 2.1(a) — Self-Managed Database Infrastructure:
Subject to the terms of this Agreement, the applicable Order Form, and Documentation, Aerospike grants Customer the right to deploy and operate the Self-Managed Database Infrastructure within Customer's own environment, on Customer's own servers or Customer-controlled cloud instances, solely for Customer's internal business purposes during the applicable Subscription Term. The capacity available to Customer is set forth in the applicable Order Form on a per-terabyte basis. Aerospike does not host, access, operate, or maintain any portion of Customer's deployment. Following deployment, Customer controls the Self-Managed Database Infrastructure entirely.Section 2.1(b) — Cloud Services:
Subject to the terms of this Agreement, the applicable Order Form, and Documentation, and subject to suspension or termination under this Agreement, Aerospike will make the Cloud Services available to Customer, and hereby grants Customer the right to access and use the Cloud Services 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 Services during the applicable Subscription Term, subject to Customer’s timely payment of all amounts due and Aerospike’s rights to suspend or terminate under this Agreement. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Services and for their compliance with this Agreement.
Capacity Reporting (Self-Managed Database Infrastructure only):
Customer will maintain accurate records of its deployed capacity for the Self-Managed Database Infrastructure and will provide Aerospike with a written report of such capacity upon Aerospike's reasonable written request, for the purpose of verifying compliance with the capacity amounts set forth in the applicable Order Form. Such reporting is a Customer obligation and does not require Customer to provide Aerospike with access to Customer's systems or environment.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 or, if none are stated there, Section 6.1. Until such invoice is paid in full, Aerospike may suspend access to any Services (including any portion of the Platform), Support, downloads, updates, upgrades, portals, and other further performance under this Agreement or any 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 Platform 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 Platform 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 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 effective 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. Without limiting the foregoing, if Customer fails to pay any undisputed amount when due, Aerospike may, upon written notice to Customer, suspend access to any Services (including any portion of the Platform), Support, downloads, updates, upgrades, portals, Professional Services, and any other further performance under this Agreement or any Order Form until all past due amounts are paid in full. If Customer fails to cure any nonpayment of undisputed amounts within ten (10) days after receipt of such notice, Aerospike may terminate this Agreement or any affected Order Form immediately upon written notice. Aerospike’s exercise of its suspension rights will not relieve Customer of its obligation to pay amounts due under this Agreement, and Aerospike will have no liability to Customer for any suspension or termination exercised in accordance with this Section. Aerospike may exercise the foregoing suspension rights on a partial basis, including with respect to particular Services, environments, Order Forms, or Customer Affiliates, or on a full basis. In the event of suspension or termination for nonpayment, Aerospike may also suspend or withhold Support, updates, upgrades, patches, downloads, access credentials, and any further delivery obligations relating to the Self-Managed Database Infrastructure.
Effect of Termination. Upon expiration or termination of this Agreement or the applicable Order Form, Customer will promptly discontinue use of the Services. Customer will immediately pay Aerospike all amounts accrued, incurred, or payable as of the effective date of expiration or termination, including any unpaid fees for Services provided, Excess Usage, reimbursable expenses, and any other undisputed amounts then due under this Agreement or any Order Form. Termination or suspension will not limit any of Aerospike’s other rights or remedies.
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 fails to pay any undisputed amount when due, Aerospike may suspend access to any Services (including any portion of the Platform), Support, downloads, updates, upgrades, portals, Professional Services, and any other further performance under this Agreement or any Order Form until all past due amounts and applicable finance charges are paid in full. Aerospike may condition reinstatement following suspension on payment in full of all past due amounts. 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.
Collection Costs. Customer will reimburse Aerospike for all reasonable costs of collection of overdue undisputed amounts, including reasonable attorneys’ fees, court costs, and collection agency fees, to the extent permitted by applicable law.
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 Services.
Aerospike Warranties. Aerospike warrants that during the term of any applicable Order Form: (a) the Self-Managed Database Infrastructure 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.
Hosted Services. 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. AEROSPIKE DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME.
Self-Managed Database Infrastructure. AEROSPIKE DOES NOT WARRANT THAT THE SELF-MANAGED DATABASE INFRASTRUCTURE WILL MEET CUSTOMER’S REQUIREMENTS, AND AEROSPIKE WILL NOT BE LIABLE FOR CUSTOMER’S INSUFFICIENT TESTING PRIOR TO DEPLOYMENT IN A LIVE ENVIRONMENT.
Indemnity.
By Aerospike. Aerospike will defend and indemnify Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party, including any associated damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent that such Claim alleges that any Services infringe upon or misappropriates such third party’s intellectual property rights (“IP Claim”). Notwithstanding the foregoing, Aerospike will not be liable for any Claim if arising from: (a) compliance with Customer’s specifications; (b) the combination, operation or use of the Services with other products, processes, materials or data (including without limitation Customer Confidential Information) not supplied by Aerospike where such infringement or misappropriation would not have occurred but for such combination, operation or use; (c) Customer’s or its User’s use of the Services not in accordance with the Documentation or this Agreement; (d) modification of the Services by or on behalf of Customer; (e) Customer Data or (f) with respect to Services, any failure by Customer to use a non-infringing workaround or modification provided by Aerospike that does not materially adversely affect the functionality or availability of such Services (clauses (a) through (f), the “Excluded Claims”). If the use of any Services is subject to any IP Claim, Aerospike will, at its sole option and expense: (A) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially equivalent or better features and functionality; (B) obtain for Customer the right to continue using the Services, or (C) if neither (A) or (B) is commercially reasonable, terminate this Agreement or the applicable Order Form and provide Customer a pro rata refund of any prepaid fees equal to the terminated portion of the applicable Order Form term.
By Customer. Customer will defend and indemnify Aerospike against any Excluded Claims.
Procedures. The indemnified party must notify the indemnifying party promptly in writing of any Claims, give the indemnifying party sole control of the defense thereof and any related settlement negotiations, and cooperate and assist in such defense at the indemnifying party’s reasonable request and expense (including reasonable attorneys’ fees). Notwithstanding the foregoing, the indemnifying party will not settle any claim without the indemnified party’s prior written consent if the settlement would require the indemnified party to: (i) pay any amounts; or (ii) make an admission of wrongdoing or fault. Nothing in this Section prohibits the indemnified party 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 SECTIONS 10.3 AND 10.4 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 (THE “GENERAL CAP”).
Super Cap. AEROSPIKE’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS OR DAMAGES FOR A BREACH OF ITS CONFIDENTIALITY OR SECURITY OBLIGATIONS UNDER THIS AGREEMENT THAT RESULTS IN THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA WILL NOT EXCEED TWO TIMES THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (THE “SUPER CAP”).
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; (C) AEROSPIKE’S INDEMNITY OBLIGATIONS FOR IP CLAIMS; AND (D) ITS INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
No Cumulative Liability. IN NO EVENT WILL AEROSPIKE BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE SUPER CAP. SIMILARLY, THOSE CAPS WILL NOT BE CUMULATIVE; IF THERE ARE ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE SUPER CAP.
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.
Aerospike may modify these Terms and Conditions from time to time in its discretion. Any such modifications will apply only prospectively. Any such modifications will become effective upon Customer’s next renewal or entry into a new Order Form referencing these Terms and Conditions. Except as expressly set forth in this Section, no amendment, modification, or supplement of this Agreement will be binding unless executed in writing by duly authorized representatives of both parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless agreed in writing by 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 Customer may be sent to the address listed on the applicable Order Form or the email address associated with Customer’s account, or such other address designated pursuant to this Section. Notices to Aerospike must be sent to the address below, or such other address designated pursuant to this Section. Aerospike, Inc.
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, including 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.
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 be the case if you sign up for Services 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 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 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.
“Platform” means Aerospike’s database offerings, including (a) Cloud Services, (b) any Aerospike-managed service offerings (including Aerospike Cloud Managed Service (“ACMS”)), and (c) the Self-Managed Database Infrastructure.
“Professional Services” means the advisory, consulting, developmental, training, implementation assistance services provided by Aerospike set forth in the applicable Order Form.
"Self-Managed Database Infrastructure" means Aerospike's proprietary database infrastructure system, deployed and operated entirely within Customer's own servers or Customer-controlled cloud instances, which provides database infrastructure capacity on a per-terabyte basis between Customer's applications and Customer's underlying compute environment. The Self-Managed Database Infrastructure is not hosted, operated, or maintained by Aerospike and runs independently of Aerospike's systems following deployment. For the avoidance of doubt, the Self-Managed Database Infrastructure is distinct from the Cloud Services.
“Services” means the Platform, together with any related Documentation, associated tools made available by Aerospike in connection therewith, and any Professional Services and Support set forth in the applicable Order Form. Where an Order Form specifies only Self-Managed Database Infrastructure, provisions applicable solely to Cloud Services do not apply, and where an Order Form specifies only Cloud Services, provisions applicable solely to Self-Managed Database Infrastructure do not apply.
"Subscription" means the right granted to Customer under Section 2.1(a) to deploy and operate the Self-Managed Database Infrastructure within Customer's own environment for the capacity and term set forth in the applicable Order Form, together with the associated Support and operational engagement.
“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 & Use; Restrictions.
Access and Use Rights.
Section 2.1(a) — Self-Managed Database Infrastructure:
Subject to the terms of this Agreement, the applicable Order Form, and Documentation, Aerospike grants Customer the right to deploy and operate the Self-Managed Database Infrastructure within Customer's own environment, on Customer's own servers or Customer-controlled cloud instances, solely for Customer's internal business purposes during the applicable Subscription Term. The capacity available to Customer is set forth in the applicable Order Form on a per-terabyte basis. Aerospike does not host, access, operate, or maintain any portion of Customer's deployment. Following deployment, Customer controls the Self-Managed Database Infrastructure entirely.Section 2.1(b) — Cloud Services:
Subject to the terms of this Agreement, the applicable Order Form, and Documentation, and subject to suspension or termination under this Agreement, Aerospike will make the Cloud Services available to Customer, and hereby grants Customer the right to access and use the Cloud Services 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 Services during the applicable Subscription Term, subject to Customer’s timely payment of all amounts due and Aerospike’s rights to suspend or terminate under this Agreement. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Services and for their compliance with this Agreement.
Capacity Reporting (Self-Managed Database Infrastructure only):
Customer will maintain accurate records of its deployed capacity for the Self-Managed Database Infrastructure and will provide Aerospike with a written report of such capacity upon Aerospike's reasonable written request, for the purpose of verifying compliance with the capacity amounts set forth in the applicable Order Form. Such reporting is a Customer obligation and does not require Customer to provide Aerospike with access to Customer's systems or environment.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 or, if none are stated there, Section 6.1. Until such invoice is paid in full, Aerospike may suspend access to any Services (including any portion of the Platform), Support, downloads, updates, upgrades, portals, and other further performance under this Agreement or any 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 Platform 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 Platform 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 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 effective 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. Without limiting the foregoing, if Customer fails to pay any undisputed amount when due, Aerospike may, upon written notice to Customer, suspend access to any Services (including any portion of the Platform), Support, downloads, updates, upgrades, portals, Professional Services, and any other further performance under this Agreement or any Order Form until all past due amounts are paid in full. If Customer fails to cure any nonpayment of undisputed amounts within ten (10) days after receipt of such notice, Aerospike may terminate this Agreement or any affected Order Form immediately upon written notice. Aerospike’s exercise of its suspension rights will not relieve Customer of its obligation to pay amounts due under this Agreement, and Aerospike will have no liability to Customer for any suspension or termination exercised in accordance with this Section. Aerospike may exercise the foregoing suspension rights on a partial basis, including with respect to particular Services, environments, Order Forms, or Customer Affiliates, or on a full basis. In the event of suspension or termination for nonpayment, Aerospike may also suspend or withhold Support, updates, upgrades, patches, downloads, access credentials, and any further delivery obligations relating to the Self-Managed Database Infrastructure.
Effect of Termination. Upon expiration or termination of this Agreement or the applicable Order Form, Customer will promptly discontinue use of the Services. Customer will immediately pay Aerospike all amounts accrued, incurred, or payable as of the effective date of expiration or termination, including any unpaid fees for Services provided, Excess Usage, reimbursable expenses, and any other undisputed amounts then due under this Agreement or any Order Form. Termination or suspension will not limit any of Aerospike’s other rights or remedies.
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 fails to pay any undisputed amount when due, Aerospike may suspend access to any Services (including any portion of the Platform), Support, downloads, updates, upgrades, portals, Professional Services, and any other further performance under this Agreement or any Order Form until all past due amounts and applicable finance charges are paid in full. Aerospike may condition reinstatement following suspension on payment in full of all past due amounts. 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.
Collection Costs. Customer will reimburse Aerospike for all reasonable costs of collection of overdue undisputed amounts, including reasonable attorneys’ fees, court costs, and collection agency fees, to the extent permitted by applicable law.
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 Services.
Aerospike Warranties. Aerospike warrants that during the term of any applicable Order Form: (a) the Self-Managed Database Infrastructure 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.
Hosted Services. 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. AEROSPIKE DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME.
Self-Managed Database Infrastructure. AEROSPIKE DOES NOT WARRANT THAT THE SELF-MANAGED DATABASE INFRASTRUCTURE WILL MEET CUSTOMER’S REQUIREMENTS, AND AEROSPIKE WILL NOT BE LIABLE FOR CUSTOMER’S INSUFFICIENT TESTING PRIOR TO DEPLOYMENT IN A LIVE ENVIRONMENT.
Indemnity.
By Aerospike. Aerospike will defend and indemnify Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party, including any associated damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent that such Claim alleges that any Services infringe upon or misappropriates such third party’s intellectual property rights (“IP Claim”). Notwithstanding the foregoing, Aerospike will not be liable for any Claim if arising from: (a) compliance with Customer’s specifications; (b) the combination, operation or use of the Services with other products, processes, materials or data (including without limitation Customer Confidential Information) not supplied by Aerospike where such infringement or misappropriation would not have occurred but for such combination, operation or use; (c) Customer’s or its User’s use of the Services not in accordance with the Documentation or this Agreement; (d) modification of the Services by or on behalf of Customer; (e) Customer Data or (f) with respect to Services, any failure by Customer to use a non-infringing workaround or modification provided by Aerospike that does not materially adversely affect the functionality or availability of such Services (clauses (a) through (f), the “Excluded Claims”). If the use of any Services is subject to any IP Claim, Aerospike will, at its sole option and expense: (A) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially equivalent or better features and functionality; (B) obtain for Customer the right to continue using the Services, or (C) if neither (A) or (B) is commercially reasonable, terminate this Agreement or the applicable Order Form and provide Customer a pro rata refund of any prepaid fees equal to the terminated portion of the applicable Order Form term.
By Customer. Customer will defend and indemnify Aerospike against any Excluded Claims.
Procedures. The indemnified party must notify the indemnifying party promptly in writing of any Claims, give the indemnifying party sole control of the defense thereof and any related settlement negotiations, and cooperate and assist in such defense at the indemnifying party’s reasonable request and expense (including reasonable attorneys’ fees). Notwithstanding the foregoing, the indemnifying party will not settle any claim without the indemnified party’s prior written consent if the settlement would require the indemnified party to: (i) pay any amounts; or (ii) make an admission of wrongdoing or fault. Nothing in this Section prohibits the indemnified party 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 SECTIONS 10.3 AND 10.4 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 (THE “GENERAL CAP”).
Super Cap. AEROSPIKE’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY CLAIMS OR DAMAGES FOR A BREACH OF ITS CONFIDENTIALITY OR SECURITY OBLIGATIONS UNDER THIS AGREEMENT THAT RESULTS IN THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA WILL NOT EXCEED TWO TIMES THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (THE “SUPER CAP”).
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; (C) AEROSPIKE’S INDEMNITY OBLIGATIONS FOR IP CLAIMS; AND (D) ITS INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
No Cumulative Liability. IN NO EVENT WILL AEROSPIKE BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE SUPER CAP. SIMILARLY, THOSE CAPS WILL NOT BE CUMULATIVE; IF THERE ARE ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE SUPER CAP.
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.
Aerospike may modify these Terms and Conditions from time to time in its discretion. Any such modifications will apply only prospectively. Any such modifications will become effective upon Customer’s next renewal or entry into a new Order Form referencing these Terms and Conditions. Except as expressly set forth in this Section, no amendment, modification, or supplement of this Agreement will be binding unless executed in writing by duly authorized representatives of both parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless agreed in writing by 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 Customer may be sent to the address listed on the applicable Order Form or the email address associated with Customer’s account, or such other address designated pursuant to this Section. Notices to Aerospike must be sent to the address below, or such other address designated pursuant to this Section. Aerospike, Inc.
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, including 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.
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.