THE FOLLOWING TERMS AND CONDITIONS FOR COCKROACH LABS’ SELF HOSTED SOLUTION (THE “SELF HOSTED TERMS”) SHALL BE DEEMED INCORPORATED BY REFERENCE INTO EACH ORDER FORM (AS DEFINED BELOW) (TOGETHER, THE “AGREEMENT”), BY AND BETWEEN COCKROACH LABS, INC., A DELAWARE CORPORATION (“COCKROACH LABS”) AND THE CUSTOMER IDENTIFIED THEREIN (“COMPANY”).
1. DEFINITIONS. Certain capitalized terms used herein are set forth below, other terms shall have the respective meanings set forth elsewhere in this Agreement, the applicable Order Form or in the Community License (defined below).
“Cockroach Labs Website” means the website located at https://www.cockroachlabs.com/.
“Initial Term” means a period specified on an Order Form.
“Order Form” means a Cockroach Labs Self Hosted Solution Order Form that has been signed and executed by both Company and Cockroach Labs.
“Renewal Term(s)” means a period of one (1) year from the end of the Initial Term or any Renewal Term, unless this Agreement is otherwise terminated as set forth herein.
“Services” means (a) Cockroach Labs’ provision of technical support, as described in Attachment A hereto, and (b) other services as Cockroach Labs may offer to licensees of the CockroachDB Enterprise software as described on the applicable Order Form.
“Software” means CockroachDB software and related documentation as specified on the applicable Order Form, and includes any change, improvement, enhancement, extension, upgrade or other new version or release thereof that is developed or otherwise generally made available by Cockroach Labs in connection with the Services.
“Subscription Fee” means the then-current subscription fees as set forth on the applicable Order Form(s), and any other fees set forth on the Cockroach Labs Website (https://www.cockroachlabs.com/pricing/).
“Term” means the Initial Term or a Renewal Term, as applicable.
2. LICENSES AND SERVICES.
2.1 License. The Software is licensed to Company pursuant to the CockroachDB Community License Agreement located at https://www.cockroachlabs.com/cockroachdb-community-license/ (“Community License”). The terms and conditions of the Community License are incorporated herein. In the event of a conflict between the terms and conditions of this Agreement and the Community License, this Agreement shall control.
2.2 During the Term, and subject to Company’s compliance with the terms and conditions of this Agreement, Cockroach Labs shall provide Services.
3. PAYMENT; TAXES.
3.1 Payment. Subscription Fees are due in advance upon the commencement of each Term. Cockroach Labs will endeavor to invoice Company at least thirty (30) days prior to the commencement of each Renewal Term, but Subscription Fees for Renewal Terms are due and payable regardless of whether Cockroach Labs issues an invoice. All fees under this Agreement are due upon the date(s) set forth in this Agreement and are payable within thirty (30) days from the date of Cockroach Labs’ invoice. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in the quoted currency and are nonrefundable.
3.2 Late Payment. Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) on the remaining amount required to be paid, or at the highest amount permitted by applicable law (if lower), such interest to accrue on a daily basis from the payable date until the remaining amount is paid.
3.3 Taxes. All fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Company shall be responsible for payment of such taxes and duties of any kind, provided however that Cockroach Labs shall be responsible for payment of taxes levied or imposed based upon Cockroach Labs’ net income. Without limitation, Company will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Cockroach Labs with an exemption certificate acceptable to the applicable authorities.
4. TERM AND TERMINATION.
4.1 Term. This Agreement shall commence on the Effective Date and continue for the Initial Term unless terminated earlier as set forth below. Thereafter, this Agreement shall renew for successive Renewal Terms, unless either party gives at least sixty (60) days notice of non-renewal prior to the expiration of the applicable Term.
4.2 Termination for Breach. Either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach.
4.3 Termination for Cause. Cockroach Labs may terminate this Agreement upon written notice to Company in the event of Company’s (a) unauthorized use of the Software (including breach of the Community License), (b) failure to make timely payment to Cockroach Labs, (c) violation of Section 7, or (d) should the Software become, or in Cockroach Labs’ reasonable opinion is likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation.
4.4 Survival. Sections 1, 3, 4.4, 5, 6, 7, 8, and 9 of this Agreement shall survive the termination of this Agreement for any reason.
5. PROPRIETARY RIGHTS. Except for the licenses explicitly granted in this Agreement and the Community License, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the Software and the Services, including derivative works, are and shall remain the exclusive property of Cockroach Labs and/or its suppliers, and nothing in this Agreement should be construed as transferring any aspects of such rights to Company or any third party. Cockroach Labs and its suppliers reserve any and all rights not expressly granted in this Agreement. Cockroach Labs and CockroachDB are trademarks of Cockroach Labs, Inc., and shall not be used by Company without Cockroach Labs’ express authorization.
6. WARRANTY AND DISCLAIMER. EXCEPT AS SET FORTH IN THE COMMUNITY LICENSE, THE SERVICES ARE PROVIDED TO COMPANY "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE. COCKROACH LABS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. COCKROACH LABS AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICES WILL MEET COMPANY'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
7.1 Confidentiality Obligations. Cockroach Labs and Company will retain in confidence all information and know-how transmitted by the other party to it during the Term, and for a period of three (3) years beyond the Term, that is clearly designated as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought reasonably to be treated as proprietary and/or confidential, and will make no use of such information and know-how except to further the purposes set forth in this Agreement.
7.2 Exclusions; Required Disclosures. Notwithstanding Section 7.1, Cockroach Labs and Company shall not have an obligation to maintain the confidentiality of information that (a) is now or subsequently becomes generally known or available by publication, commercial use or otherwise through no fault of the recipient; (b) is known by the recipient at the time of disclosure and is not subject to restriction; (c) is independently developed by the recipient without use of the discloser’s confidential information; or (d) is lawfully obtained from a third-party who has the right to make such disclosure. Further, the recipient may disclose confidential information as required by government or judicial order, provided the recipient gives the disclosing party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s confidential information.
8. LIMITATION OF LIABILITY.
8.1 Exclusions. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Aggregate Liability. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO COCKROACH LABS (IN THE CASE OF COMPANY) OR ACTUALLY PAID TO COCKROACH LABS BY COMPANY (IN THE CASE OF COCKROACH LABS) DURING THE TWELVE MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE.
9.1 Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
9.2 Assignment. Company may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without Cockroach Labs’ prior consent (at Cockroach Labs’ sole discretion). Any attempt by Company to assign this Agreement without Cockroach Labs’ prior consent, where such consent is required, shall be null and void. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns. There are no intended third party beneficiaries of this Agreement.
9.3 No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Company more than one (1) year after the cause of action has accrued.
9.4 Governing Law. This Agreement shall be governed by the laws of the State of New York, without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in New York, New York. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs
9.5 Notices. Unless otherwise agreed to by the parties, any notice, authorization, or consent (“Notice”) required or permitted to be given or delivered under this Agreement shall be in writing and addressed and delivered to Cockroach Labs at the address specified on the Cockroach Labs Website or to Company at the contact information provided as part of the registration for the Services. Notice shall be deemed to have been received by a party, and shall be effective: (a) on the fifth business day after which such Notice is deposited prepaid in the local postal system; (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered or (c) one business day after being sent electronically with a confirmed delivery receipt. Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
9.6 Export Law Assurances. Company acknowledges that the Software may be subject to export and import control laws, and agrees to comply fully with those laws in connection with the Software. Company agrees that the Software is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Company hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
9.7 U.S. Government Restricted Rights. If the Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such Software and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, will be subject in all respects to the license rights and restrictions provided in the Community License and this Agreement.
9.8 Force Majeure. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.
9.9 Endorsement. During the Term of this Agreement, Company agrees to be a reference for Cockroach Labs and participate in a CockroachDB case study, and participate in a press release regarding Company’s subscription to the Software, as follows: (a) Reference—As a reference, Company agrees to speak in good faith with media and/or Cockroach Labs prospects from time to time about its use of Cockroach Labs’ products and services. Such reference opportunities will be limited to a reasonable quantity and mutually agreed content; (b) Case Study—Company agrees to make appropriate personnel available to be interviewed for a CockroachDB case study that describes Company’s successful use of the Software. Cockroach Labs may publish the case study without limitation with respect to quantity and form. Prior to publishing the case study, Cockroach Labs will provide the same to Company for Company’s review and approval, which approval shall not be unreasonably withheld or delayed; and (c) Press Release—Cockroach Labs may issue a press release in which Cockroach Labs announces that Company has subscribed to the Software. Company, at its discretion, may also issue a press release about the mutually agreed content. Neither party shall release its press release without first providing such press release to the other party for its review and approval, which approval shall not be unreasonably withheld or delayed.
9.10 Entire Agreement. These Self Hosted Terms together with all applicable Order Forms, the Community License and the Support Policy comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. Cockroach Labs reserves the right to amend or modify this Agreement at any time and in any manner by providing reasonable notice to the Company. Company agrees that such reasonable notice may be provided by posting on the Cockroach Labs Website; Company's start, registration, or download pages; email; or other written notice. Except as otherwise set forth herein, this Agreement may be amended or modified only in a writing executed by both parties. Cockroach Labs’ acceptance of any document submitted by Company to Cockroach Labs shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of Cockroach Labs.
Subject to the terms and conditions of the applicable Order Form and the Self Hosted Terms (together, the “Agreement”), this Self Hosted Solution Support Policy (the “Support Policy”) sets forth the technical support services that are included with the subscription to Cockroach Labs’ Self Hosted Solution. Capitalized terms not defined in this Support Policy shall have the meaning set forth in the Agreement. In the event of a conflict between the terms of this Support Policy and the terms of the Agreement, the terms and conditions of this Support Policy shall apply only to the extent of such conflict.
1.1. “Authorized Contact” has the meaning assigned thereto in Section 4.5 of this Attachment A.
1.2. “Business Hours” means 9:00 a.m. to 6:00 p.m. Eastern US Time, Monday through Friday, excluding Federal Holidays.
1.3. “Error” means an error in the Software, which significantly degrades use of the Software as compared to the published and functional performance documentation for the Software.
1.4. “Fix” means the repair or replacement of object or executable code within the Software to remedy an Error.
1.5. “Severity 1” means that the Software is non-operational and there is no known Workaround.
1.6. “Severity 2” means a problem with the Software that causes a serious disruption which cannot be solved (temporarily) by a Workaround.
1.7. “Severity 3” means a non-critical problem in the Software where Company is able to continue to use the Software and a Workaround is available.
1.8. “Severity 4” means a non-Severity 1, 2 or 3 Error.
1.9. “Service Hours” means twenty four (24) hours a day, seven (7) days a week.
1.10. “Support” means (a) the provision of Updates related to the Software; (b) assistance by telephone or internet with respect to the use of the Software including without limitation (i) clarification of functions and features of the Software, (ii) clarification of the documentation, and/or (iii) guidance in the operation of the Software; and (c) Error verification, analysis and correction.
1.11. “Support Call” means, to report a Severity 1 Error, a telephone call, or to report a Severity 2, Severity 3 or Severity 4 Error, a telephone call or email notification from Company to Cockroach Labs requesting Support.
1.12. “Support Reply Time” means the elapsed time between the receipt of a Support Call and the target time within which Cockroach Labs begins Support as verified by a verbal or email confirmation to Company.
1.13. “Update” means an update, enhancement, modification, bug-fix, patch or Error correction that Cockroach Labs makes generally available to end users of the Software, excluding hardware, software or services for which Cockroach Labs would generally charge an additional fee. Updates shall be deemed to be part of the Software for purposes of the Community License.
1.14. “Workaround” means a change in the procedures followed or data supplied by Company to avoid an Error without substantially impairing Company’s use of the Software.
2. SUPPORT SERVICES. For so long as Company is current in payment of the fees listed in the applicable Order Form and subject to the terms and conditions of the Community License, Company will receive Support as specified herein.
2.1 Company Support Center. Cockroach Labs shall receive Support Calls from an Authorized Contact and, if the call is to report an Error, assign an Error priority level to the request.
2.2 Support Call Logging. Cockroach Labs shall acknowledge receipt of Support Calls by telephone or the same method that the Support Call was received with a tracking number within the Support Reply Times.
2.3 Support Reply Times. Support for the Software is available during with the following Support Reply Times:
|Error Priority||Support Reply Time|
|Severity 1 – Production Outage||2 Service Hours|
|Severity 2 – High Priority||4 Service Hours|
|Severity 3 – System Impact||8 Business Hours|
|Severity 4 – Non-Critical||12 Business Hours|
2.4 Response. Following acknowledgement by Cockroach Labs in response to a Support Call in respect of a Severity 1 or 2 Error, Cockroach Labs will work uninterrupted during Service Hours using best commercial efforts to provide Company with a Workaround or Fix. Following acknowledgement of a Severity 3 Error, Cockroach Labs will work using best commercial efforts during Business Hours to provide Company with a Workaround or Fix. Following acknowledgement of a Severity 4 Error, Cockroach Labs will use reasonable commercial efforts to incorporate any necessary changes with the next release of the Software, or provide a Fix or Workaround thereto, in its sole discretion.
2.5 External Issues. If Cockroach Labs believes that a problem reported by Company may not be due to an Error in the Software, Cockroach Labs will so notify Company.
3. EXCLUSIONS. Support does not include services requested as a result of, or with respect to, causes which are not attributable to Cockroach Labs or the Software (“Excluded Services”). Causes which are not attributable to Cockroach Labs or the Software include, but are not limited to:
(a.) installation, modification, customization, alteration or addition or attempted installation, modification, customization, alteration or addition of the Software undertaken by any party other than Cockroach Labs or an authorized designee of Cockroach Labs;
(b.) Errors arising out of misuse, negligence, misapplication, or willful acts of Company or any third party;
(c.) any combination of the Software with any computer hardware or software not provided or approved in writing by Cockroach Labs;
(d.) use of the Software other than in accordance with its documentation or the Community License; or
(e.) use of a version of the Software other than the current release or the two (2) immediately previous releases.
4. COMPANY RESPONSIBILITIES. Cockroach Labs’ provision of Support to Company is subject to the following.
4.1 Information. Company is responsible for providing sufficient information and data to allow Cockroach Labs to readily reproduce all reported Errors.
4.2 Access. Company shall provide Cockroach Labs with necessary access to the Software, personnel and equipment during Service Hours. This access includes the ability to remotely access the Software, subject to Company’s security procedures.
4.3 Report Errors. Company shall document and promptly report all detected Errors to Cockroach Labs. At Cockroach Labs’ direction, Company shall take all steps necessary to carry out procedures for the rectification of Errors within a reasonable time after such procedures have been received from Cockroach Labs.
4.4 Training. Company shall properly train Company’s personnel in the use and application of the Software.
4.5 Authorized Contacts. Company shall appoint a reasonable number of trained individuals to serve as primary contacts between Company and Cockroach Labs regarding the registry and report of Support Calls (each an “Authorized Contact”). All of Company Support Calls and Support inquiries shall be initialized through the Authorized Contacts.
THIS SUPPORT POLICY DEFINES A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. COCKROACHDB AND MATERIALS AND SERVICES RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THIS AGREEMENT AND THE COMMUNITY LICENSE. THIS ATTACHMENT DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THOSE AGREEMENTS.