Last Updated: October 22, 2018
PLEASE READ THIS PINGCAP END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE TiDB OPERATOR ENTERPRISE SOFTWARE PRODUCT (TOGETHER WITH ANY, UPGRADES OR NEW VERSIONS THEREOF, THE “LICENSED SOFTWARE”) AND ANY OTHER SERVICES OFFERED BY PINGCAP (US) INC. (“PINGCAP”).
Grant of License. Subject to the terms hereof, payment of the Fees and any applicable user/use limitations, PingCAP grants Licensee a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use the Licensed Software in object code form solely for Your internal business purposes and in accordance with PingCAP’s user documentation.
Restrictions. Licensee will not and will not allow any third party to: (i) remove or modify any notice of copyright or other proprietary rights that appear on or in the Licensed Software; (ii) reverse engineer or attempt to discover by any means the source code, underlying ideas or algorithms of all or any portion of the Licensed Software; (iii) provide, distribute, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party the Licensed Software; (iv) possess or use the Licensed Software, or allow the transfer, transmission, export, or re-export of the Licensed Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency; (v) disclose to any third party any benchmarking or comparative study involving the Licensed Software; or (vi) modify or create derivative works based on all or a portion of the Licensed Software.
Ownership. PingCAP retains all title, ownership and interest in and to the Licensed Software, Proprietary Information and all intellectual property rights therein. To the extent the Licensed Software contains any materials licensed from third parties, third party suppliers may own such licensed materials. PingCAP retains all rights not expressly granted to Licensee in this Agreement. Licensee agrees: (i) to protect and maintain the confidentiality of the Licensed Software any other proprietary or confidential information (collectively, “Proprietary Information”) that may be provided to Licensee by or on behalf of PingCAP and (ii) not to disclose or provide access to the Licensed Software and/or Proprietary Information to any third parties except as expressly permitted in this Agreement.
Support. PingCAP may, but is not required to provide technical support for the Licensed Software. If PingCAP elects to provide technical support to Licensee, it may charge Licensee fees for such technical support and will use commercially reasonable efforts to respond to Licensee’s questions or inquiries according to the terms specified in the “Maintenance and Support” section of the product listing for the Licensed Software on Google Cloud Platform Marketplace.
Fees and Payment. Licensee will pay any fee specified in the product listing for the Licensed Software on Google Cloud Platform Marketplace (the “Fees”). Google will invoice Licensee on the basis specified in the Google Cloud Platform Marketplace Agreement. Licensee agrees to comply entirely with Licensee’s payment obligations in the Google Cloud Platform Marketplace Agreement.
Additional Services. PingCAP may agree to perform certain additional services for Licensee (“Additional Services”). Such Additional Services are outside the scope of this Agreement and will be governed by a separate written agreement to be negotiated between PingCAP and Licensee.
Termination; Breach. The license granted under this Agreement will terminate: (i) thirty (30) days after PingCAP notifies Licensee of any breach of this Agreement if such breach is not cured at the end of the thirty (30) day period; (ii) immediately, if the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; (iii) immediately, if for any reason PingCAP ceases to be featured in the Google Cloud Marketplace; or (iv) effective upon notice to Licensee, at any time for any reason or no reason at all, without liability to Licensee. Upon termination of this Agreement, Licensee shall immediately cease all use of the Licensed Software and return or destroy any Proprietary Information in its possession or control.
(a) PingCAP Indemnity. PingCAP will defend, indemnify and hold Licensee harmless from any third party claims alleging that the use of the Licensed Software infringes a valid United States patent or copyright or misappropriates any trade secret right; provided that Licensee promptly notifies PingCAP of such claim or allegation in writing, gives PingCAP sole control of the defense and settlement of such claim or allegation and provides PingCAP reasonable cooperation and assistance thereof.
(b) Exclusions. The foregoing obligations in Section 8(a) shall not apply to with respect to the Licensed Software or portions thereof to the extent: (i) not created by PingCAP; (ii) modified by any party other than PingCAP; (ii) combined or bundled with any products, processes or materials not provided by PingCAP; (iii) continued use of the Licensed Software after notification of an alleged infringement or the provision of a non-infringing modification or alternative.
(c) Licensee Indemnity. Licensee will defend, indemnify and hold PingCAP and its affiliates and its and their officers, agents and employees harmless against any losses, liabilities, expenses (including reasonable attorneys’ fees), damages, claims, demands, proceedings and causes of actions arising from any breach by Licensee of the terms of this Agreement or unauthorized use of the Licensed Software by Licensee.
Feedback. Licensee agrees that PingCAP may freely exploit and make available any and all feedback, suggestions, ideas, enhancement requests, recommendations or other information provided by Licensee or any other party relating to the Licensed Software.
No Warranty. PINGCAP OFFERS NO WARRANTY WHATSOEVER UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PINGCAP, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PINGCAP PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Limitation of Liability. IN NO EVENT WILL PINGCAP AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO PINGCAP PURSUANT TO THIS AGREEMENT FOR THE LICENSED SOFTWARE.
THE FOREGOING LIMITATIONS AND EXCLUSIONS IN THIS SECTION 12 APPLY EXCEPT TO THE EXTENT EXPRESSLY PRECLUDED BY APPLICABLE LAW. THE PARTIES AGREE THAT THIS SECTION 12 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT PINGCAP WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
Survival. The terms, conditions, and representations contained in these Agreement that by their nature and context are intended to survive this Agreement shall survive, including, but not limited to the following Sections: Section 3 – Ownership, Section 5 – Fees and Payment, Section 8 – Indemnification, Section 9 – Feedback, Section 10 – No Warranty, Section 11 – Limitation of Liability, Section 12 – Survival, and Section 13 – Miscellaneous.
Miscellaneous. The terms and conditions of this Agreement constitute the entire agreement between PingCAP and You with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written representations, proposals or agreements concerning the subject matter herein. The terms and conditions herein take precedence over any additional or different terms, from whatever source, including Your purchase order or other correspondence, to which objection is hereby made by PingCAP. Without limiting the foregoing, You agree that flowdown provisions, including, but not limited to United States Government Federal Acquisition Regulations (“FARs”), Defense FARs or NASA FARs, shall not apply to PingCAP and PingCAP does not accept such provisions notwithstanding the existence of such provisions. None of the terms and conditions in this Agreement will be deemed waived, amended or modified by PingCAP unless such waiver, amendment or modification is made in writing and signed by an authorized representative of PingCAP. No waiver of rights contained in this Agreement shall constitute a subsequent waiver of such rights or any other rights hereunder. If any provision of this Agreement is held to be invalid or unenforceable by a proper authority having jurisdiction over this Agreement, that provision shall be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remainder of this Agreement shall continue in full force and effect. Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including without limitation its licenses with respect to the Licensed Software) to any third party without PingCAP’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement is governed by the laws of the State of California, without reference to its conflict of law principles. The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this Agreement. You agree to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. You expressly agree that You shall not export, directly or indirectly, re-export, divert, or transfer the Licensed Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls. In the event of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Notice. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices for PingCAP shall be sent to firstname.lastname@example.org, or to any updated address that PingCAP may provide by written notice.