End User License Agreement (US)

BACKGROUND. This End User License Agreement (“Agreement”) is between Yugabyte, Inc. (“Yugabyte”) and Licensee. This Agreement governs Licensee’s procurement and use of all Software and Support Services ordered by Licensee directly from Yugabyte or its Distributor. Yugabyte shall provide the Software and Support Services as described in each Order referencing this Agreement. Unless otherwise set forth in a separate signed agreement between Yugabyte or its Distributor and Licensee, by downloading, installing, or using the Software, Licensee agrees to these terms.

1. DEFINITIONS. 
   1. “Affiliate” means a legal entity controlled by, controlling, or that is under common control of Yugabyte or Licensee, with control meaning more than 50% of the voting power or ownership interests then outstanding of that entity.
   2. “Beta Component” means a Software component not yet generally available but included in the Software.
   3. “Claim” means any third party claim, notice, demand, action, proceeding, litigation, investigation, or judgment. With respect to Software, such Claim must be related to Licensee’s use of the Software during the Subscription Period or renewal period.
   4. ”Confidential Information” means the terms of this Agreement, Software, and all confidential and proprietary information of Yugabyte or Licensee, including without limitation, all business plans, product plans, financial information, software, designs, technical, business, or financial data of any nature whatsoever, provided that such information is marked or designated in writing as “confidential,” “proprietary,” or with a similar term or designation, or information that would reasonably be regarded as being confidential by its nature. Confidential Information excludes information that is: (a) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through a breach of confidentiality by the other party); (c) rightfully furnished to the receiving party by a third party without a confidentiality restriction; (d) independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (e) Feedback.
   5. ”Distributor” means a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller or other partner authorized by Yugabyte to license Software to end users, or any third party duly authorized by a Distributor to license Software to end users.
   6. ”Documentation” means documentation provided to LIcensee by Yugabyte with the Software, as revised by Yugabyte from time to time.
   7. ”Evaluation Period” means 90 days starting from initial delivery of the Evaluation Software or Beta Components.
   8. ”Evaluation Software” means Software made available for the Evaluation Period at no charge, for Licensee’s evaluation purposes only.
   9. ”Excluded Materials” mean Yugabyte Materials, Open Source Software, and Third Party Materials.
   10. ”Guide” means the Yugabyte Product Guide available at: https://www.yugabyte.com/product-guide/, in effect on the date of the Order and incorporated into this Agreement.
   11. “Licensee” means the person or the entity, and its permitted successors and assigns, obtaining the Software.
   12. ”Major Release” means a generally available release of Software that Yugabyte designates with a change in the digit to the left of the first decimal point (e.g., 5.0 >> 6.0).
   13. ”Minor Release” means a generally available release of Software that Yugabyte designated with a change in the digit to the right of the decimal point (e.g., 5.0 >> 5.1).
   14. ”Open Source Software” means software components licensed and distributed under a license approved by the Open Source Initiative or similar open source or freeware license and included in, embedded in, utilized by, or provided or distributed with the Software.
   15. ”Order” means a purchase order or other ordering document either signed by the parties or issued by Licensee to Yugabyte or a Distributor that references and incorporates this Agreement and is accepted by Yugabyte as set forth in Section 3 (Orders).
   16. ”Software” means a Subscription License to Yugabyte computer programs listed in the Guide.
   17. ”Subscription License” means a license during the Subscription Period to access: (a) Software and Documentation set forth in the Order; and (b) Support Services, which include any Major Releases, Minor Releases, or upgrades on a “when and if available” basis.
   18. ”Subscription Period” means the period specified in the Order.
   19. ”Support Services” means services described at: https://www.yugabyte.com/support-policy/.
   20. ”Territory” means the country or countries in which Licensee has been invoiced.
   21. ”Third Party Agent” means Licensee’s employees or contractors delivering information technology services to Licensee pursuant to a written contract requiring compliance with this Agreement.
   22. ”Warranty Period” means 90 days starting the first notice of availability of the Software for download.
2. EVALUATION SOFTWARE AND BETA COMPONENTS. If Licensee has not entered into a signed Order with Yugabyte or its Distributor, then Licensee is licensing the Software as Evaluation Software, Beta Components, or both, from Yugabyte on a non-exclusive, non-transferable basis, without any right to sublicense, during the Evaluation Period, in the Territory, subject to the Guide, only for Licensee’s internal business operations in a non-production environment. Notwithstanding any other provision in this Agreement, Evaluation Software and Beta Components are provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied. All such licenses expire at the end of the Evaluation Period.
3. GRANT AND USE RIGHTS FOR SOFTWARE. 
   1. License Grant. The Software is licensed, not sold. Nothing in this Agreement shall be construed to mean that Yugabyte has sold or otherwise transferred ownership of the Software. Yugabyte grants Licensee a non-exclusive, non-transferable license, without any right to sublicense, to use the Software, Documentation and related Support Services, up to the maximum licensed capacity during the period identified in the Order, in the Territory, subject to the Guide, only for Licensee’s internal business operations. Should Licensee exceed the Software’s licensed capacity (based on the applicable Unit of Measure in the Guide), Licensee shall immediately either procure additional Software license rights at a mutually agreed price or cease such excess usage. Third Party Agents may access the Software on Licensee’s behalf during the Subscription Period solely for Licensee’s internal business operations. Licensee may make one unmodified backup copy of the Software solely for archival purposes. If Licensee upgrades or exchanges the Software from a previous validly licensed version, Licensee must cease using all prior versions of the Software and certify cessation of use to Yugabyte. Licensee is responsible for obtaining any software, hardware, or other technology required to operate the Software and complying with any corresponding terms and conditions.
   2. License Restrictions. Licensee must not, and must not allow any third party to: (a) use the Software in an application services provider, service bureau, or similar capacity; (b) disclose to any third party the results of any benchmark testing or comparative or competitive analyses of the Software without Yugabyte’s prior written approval; (c) make the Software available for access or use to any third party except as otherwise expressly permitted by Yugabyte; (d) transfer or sublicense the Software or Documentation (other than to an Affiliate, subject to Yugabyte’s prior written approval); (e) use the Software in conflict with the Guide or Order; (f) modify, translate, enhance, or create derivative works from the Software, or reverse assemble or disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from Software except as permitted by applicable mandatory law or third party license; (g) remove any copyright or other proprietary notices on or in the Software; or (h) violate or circumvent any technological restrictions within the Software or as otherwise specified in this Agreement.
   3. Open Source Software. Open Source Software is licensed to Licensee under the applicable Open Source Software license terms located in the open_source_licenses.txt file included in or along with the Software, the Evaluation Software, or the corresponding source files available at https://docs.yugabyte.com/latest/legal/third-party-software/. The applicable Open Source Software license terms are also available by sending a written request, with Licensee’s name and address, to: YugaByte, Inc., Open Source Files Request, Attn: General Counsel, 771 Vaqueros Avenue, Sunnyvale, CA 94085 or legal@yugabyte.com. This offer to obtain a copy of the licenses and source files is valid for three years from the date Licensee first acquired access to the Software. Open Source Software terms and conditions shall take precedence over this Agreement solely with respect to such Open Source Software.
   4. Subscription License. All Subscription Licenses are subject to a non-cancelable and non-refundable fee. At least 60 days before expiration of the Subscription Period, Yugabyte will notify Licensee of its option to renew the Subscription License at the end of the Subscription Period for one additional year at the same annual rate stated in the Order, plus 5%. If Licensee does not notify Yugabyte at least thirty days before expiration of the Subscription Period of Licensee’s intent to renew, the Subscription License shall expire at the end of the Subscription Period. Licensee agrees to cease using the Software at the expiration of the Subscription Period and any renewal period and shall certify cessation of use to Yugabyte. If Licensee renews Subscription Licenses, Licensee agrees that there shall be no gap between the end date of the expiring Subscription Period and the start date of the renewal Subscription Period.
   5. Decompilation. If applicable laws in the Territory grant an express right to decompile the Software to render it interoperable with other software, Licensee may decompile the Software, but must first request Yugabyte to do so. Licensee must provide all requested information to allow Yugabyte to assess the request. Yugabyte may, in its discretion, provide such interoperability information, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to protect Yugabyte’s proprietary rights.
4. ORDERS. Licensee’s Order is subject to this Agreement and shall reference the applicable Order. No Orders are binding until accepted by Yugabyte (or Distributor, if applicable). Orders for Software are deemed accepted upon Yugabyte’s (or Distributor’s, if applicable) delivery of Software included in such Order. Orders issued to Yugabyte do not have to be signed to be valid and enforceable. Licensee shall pay in full in accordance with Yugabyte’s invoice (or Distributor’s invoice, if applicable). If Licensee purchases from Yugabyte, Yugabyte’s invoices are payable in full within 30 days after the date of Yugabyte’s invoice, with interest accruing after such time at the lesser of 1.5% per month or the highest lawful rate. In addition to the charges due under this Agreement, Licensee (or Licensee’s Distributor as applicable) shall pay or reimburse to Yugabyte for all value added (VAT), sales, use, excise, withholding, personal property and other taxes resulting from a Licensee’s purchase, except for taxes based on Yugabyte’s net income. If Licensee is required to pay withholding taxes then Licensee shall gross-up the payment such that the payment to Yugabyte agrees with the stated invoice value. Yugabyte reserves the right to suspend or reduce Licensee’s Support Services (including Licensee’s access to releases or upgrades) if Licensee is in breach of this Agreement or an Order (including for non-payment of fees or non-compliance with licensing requirements including any late renewals) until the breach is remedied. Yugabyte will reinstate such rights upon remediation.
5. LIMITED WARRANTY. 
   1. Software Warranty. Yugabyte warrants to Licensee that the Software will, for the Warranty Period, substantially conform to the applicable Documentation, provided the Software: (a) has been properly installed and used in accordance with the Documentation; and (b) has not been modified by persons other than Yugabyte. For any breach of this warranty, Yugabyte will, at its option and expense, and as Licensee’s exclusive remedy, either replace the Software or correct any reproducible error in the Software reported to Yugabyte by Licensee in writing during the Warranty Period. If Yugabyte determines that it is unable to replace the Software or correct the error, Yugabyte will refund to Licensee the amount paid by Licensee for the Software, and the license will terminate.
   2. Warranty Exclusions. EXCEPT AS SET FORTH IN SECTION 5.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YUGABYTE AND ITS DISTRIBUTORS PROVIDE THE SOFTWARE AND THE SUPPORT SERVICES WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH CUSTOMER, AND YUGABYTE AND ITS DISTRIBUTORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE SOFTWARE, THE SUPPORT SERVICES, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. YUGABYTE AND ITS DISTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SOFTWARE WILL MEET (OR IS DESIGNED TO MEET) CUSTOMER’S BUSINESS REQUIREMENTS.
6. IP INDEMNITY.  
   1. IP Indemnity. Subject to the remainder of this Section 6 (IP Indemnity) and Section 7 (Limitation of Liability), Yugabyte shall: (a) defend Licensee against any Claim that the Software infringes a copyright or patent enforceable in a Berne Convention signatory country; and (b) pay resulting costs and damages finally awarded against Licensee by a court of competent jurisdiction, or pay amounts stated in a written settlement negotiated and approved by Yugabyte.
   2. Procedure and Remedies. The foregoing obligations apply only if Licensee: (a) promptly notifies Yugabyte in writing of such Claim; (b) grants Yugabyte sole control over the defense and settlement of such Claim; (c) reasonably cooperates in response to Yugabyte’s request for assistance; (d) is not in material breach of this Agreement; and (e) is current in payment of all applicable fees prior to the Claim. If the allegedly infringing Software is held to constitute an infringement, or in Yugabyte’s opinion, any such Software likely to become infringing and their use enjoined, Yugabyte may, at its sole option and expense: (i) procure for Licensee the right to make continued use of the affected Indemnified Elements; (ii) replace or modify the affected Software to make it non-infringing; or (iii) notify Licensee to return the affected Software and, upon receipt, discontinue the related Support Services (if applicable) and, for Subscription Licenses, refund unused prepaid fees calculated based on each month remaining in the Subscription Period.
   3. IP Indemnity Exclusions. Neither Yugabyte nor any Distributor shall have any obligation under this Section 7 (IP Indemnity) or otherwise with respect to any Claim that arises out of or relates to: (a) combination, operation or use of the Indemnified Elements with any other software, hardware, technology, data, or other materials; (b) use for a purpose or in a manner for which Indemnified Elements were not designed or use after Yugabyte notifies Licensee to cease such use due to a possible or pending Claim; (c) any modifications to Indemnified Elements made by any person other than Yugabyte or its authorized representatives; (d) any modifications to Indemnified Elements made by Yugabyte pursuant to instructions, designs, specifications, or any other information or materials provided to Yugabyte by or on behalf of Licensee; (e) use of any version of Software when an upgrade or a newer iteration of Software made available by Yugabyte could have avoided the infringement; (f) any data or information which Licensee or a third party utilizes in connection with Software; or (g) any Open Source Software. THIS SECTION 7 STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND YUGABYTE’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT SHALL YUGABYTE OR ITS DISTRIBUTORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE. YUGABYTE’S AND ITS DISTRIBUTORS’ LIABILITY UNDER THIS AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED THE LESSER OF (A) FEES LICENSEE PAID FOR THE SOFTWARE OR SERVICES DURING THE 12 MONTHS PRECEDING THE DATE YUGABYTE RECEIVES WRITTEN NOTICE OF THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT; OR (B) USD $1,000,000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER YUGABYTE OR ITS DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER MAY NOT BRING A CLAIM UNDER THIS AGREEMENT MORE THAN 18 MONTHS AFTER (i) THE END OF THE SUBSCRIPTION PERIOD, FOR SUBSCRIPTION LICENSES, AND (ii) THE CLAIM FIRST ARISES FOR ALL OTHER CLAIMS.
8. TERMINATION 
   1. For Cause. Yugabyte may terminate this Agreement effective immediately upon written notice to Licensee if (a) Licensee fails to pay any portion of fees due under an applicable Order within ten days after receiving notice that payment is past due; (b) Licensee suffers an insolvency or analogous event; (c) Licensee commits a material breach of this Agreement that is incapable of being cured; or (d) Licensee breaches any other provision of this Agreement and does not cure the breach within 30 days after receiving written notice of breach.
   2. For Convenience. Yugabyte may terminate this Agreement upon three months written notice to Licensee.
   3. Effect of Termination. In the event of expiration of a Subscription License or any termination of this Agreement, Licensee must remove and destroy all copies of Software, including all backup copies, from the server, virtual machine, and all computers and terminals on which Software (including copies) is installed or used and certify destruction of the Software. All provisions of this Agreement will survive any termination or expiration if by its nature and context it is intended to survive.
9. CONFIDENTIALITY. Each party shall: (a) use the other party’s Confidential Information only for exercising rights and performing obligations in connection with this Agreement; and (b) protect from disclosure any Confidential Information disclosed by the other party for a period commencing upon the disclosure date until three years later. Notwithstanding the foregoing, either party may disclose Confidential Information: (i) to an Affiliate to fulfill its obligations or exercise its rights under this Agreement so long as such Affiliate agrees to comply with these restrictions in writing; and (ii) if required by law or regulatory authorities provided the receiving party has given the disclosing party prompt notice before disclosure. Yugabyte shall not be responsible for unauthorized disclosure of Licensee’s data stored within Software arising from a data security breach. Licensee is solely responsible for all obligations to comply with laws applicable to Licensee’s Software use, including without limitation any personal data processing. Yugabyte may collect, use, store and transmit technical and related information about Licensee’s Software use, including server internet protocol addresses, hardware identification, operating system, application software, peripheral hardware, and Software usage statistics. Licensee is responsible for obtaining all consents required to enable Yugabyte to exercise its confidentiality rights, in compliance with applicable law.
10. RECORDS/AUDIT. For the period set forth in the Order, any renewals, and for three years after, Licensee shall maintain accurate records regarding its compliance with this Agreement. Upon reasonable notice and not more than once per year, Yugabyte may audit Licensee’s Software use to determine such compliance and payment of fees. Licensee shall promptly pay additional fees identified by the audit and reimburse Yugabyte for all audit costs if the audit discloses underpayment by more than 5% in the audited period, or that Licensee breached any Agreement term.
11. EXPORT AND TRADE COMPLIANCE. The Software and any technology delivered in connection with them pursuant to this Agreement may be subject to governmental restrictions on exports from the USA, restrictions on exports from other countries in which such Software and technology may be provided or located, disclosures of technology to foreign persons, exports from abroad of derivative products, and the importation or use of such technology included with them outside of the USA (collectively, “Export Laws”). Diversion contrary to Export Laws is expressly prohibited. Licensee shall, at its sole expense, comply with all Export Laws including without limitation all licensing, authorization, documentation and reporting requirements and Yugabyte export policies made available to Licensee by Yugabyte. Licensee represents that it is not a restricted party, which shall be deemed to include any person or entity: (a) located in or a national of Cuba, Iran, North Korea, Sudan, Syria, Crimea, or any other countries that may, from time to time, become sanctioned or with which U.S. persons are generally prohibited from engaging in financial transactions; (b) on any restricted party or entity list maintained by any U.S. government agency; or (c) any person or entity involved in an activity restricted by any U.S. government agency. Certain information and technology may be subject to the International Traffic in Arms Regulations and shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with such regulations.
12. FEEDBACK, RESERVATION OF IP RIGHTS AND PRODUCT INFORMATION.  
    1. Feedback. The Parties agree that any feedback or suggestions (“Feedback”) (if any) given is voluntary. Each party is free to use, disclose, reproduce, license or otherwise distribute the Feedback relating to its own products and services, without any obligations or restrictions of any kind, including intellectual property rights.
    2. Reservation of IP Rights. Except as expressly stated, nothing in this Agreement shall be construed to: (a) directly or indirectly grant to a receiving party any title or license to or ownership of a providing party’s intellectual property rights in Software, Support Services, or materials furnished by such providing party; or (b) preclude such providing party from: (i) independently developing, marketing, acquiring, using, licensing, modifying or otherwise freely exploiting products or services that are similar to or related to the Software or materials provided under this Agreement; (ii) restricting the assignment of persons performing Support Services; or (iii) using and employing their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as that party complies with confidentiality obligations in this Agreement. Yugabyte is not being engaged to perform any investigation of third party intellectual property rights including any searches of patents, copyrights, or trademarks related to the Work Software.
    3. Product Information. If required by Yugabyte and by the method Yugabyte prescribes, Licensee shall provide information to Yugabyte in connection with its use of the Subscription Licenses. Licensee agrees that Yugabyte may use such information in connection with providing the Subscription Licenses and ensuring compliance with this Agreement.
13. GENERAL. This Agreement is governed and interpreted by California law. Any lawsuit arising directly or indirectly out of this Agreement shall be litigated in the Superior Court of Santa Clara, California or, if original jurisdiction can be established, in the United States District Court for the Northern District of California. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Both parties shall comply with all applicable laws and regulations and diversion contrary to such laws is expressly prohibited. This Agreement confers no rights or remedies on any third party, other than the parties to this Agreement and their respective successors and permitted assigns. Yugabyte reserves all rights not expressly granted to Licensee in this Agreement. The parties are independent contractors. This Agreement and its attachments contain the entire understanding between the parties and may be amended only by a written document signed by both parties. Licensee shall not assign or transfer any rights under this Agreement or delegate any of its duties under this Agreement without Yugabyte’s prior written consent, and any such action in violation of this provision, is null and void, of no force, and a breach of this Agreement. Yugabyte may assign or transfer this Agreement to any successors-in-interest to all or substantially all of the business or assets of Yugabyte whether by merger, reorganization, asset sale or otherwise, or to any Affiliates of Yugabyte, and this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns. Yugabyte may use Yugabyte Affiliates or other sufficiently qualified subcontractors to provide Services, provided that Yugabyte remains responsible for their performance. If any part of this Agreement, an Order, or a Statement of Work is held unenforceable, the validity of the remaining provisions shall not be affected. In the event of conflict or inconsistency among an Order, the Guide and this Agreement, the following order of precedence shall apply, with items listed first controlling: (a) the Order; (b) the Guide; and (c) this Agreement. All terms of any Licensee purchase order or similar document provided by Licensee, except those confirming the business terms set forth in the applicable Yugabyte Order, shall be null and void and of no legal force or effect, even if Yugabyte does not expressly reject such terms when accepting a purchase order or similar document provided by Licensee.

Last Updated: December 11, 2020