ACTIAN CORPORATION
DATACLOUD SERVICES AGREEMENT
April 2018
THIS DATACLOUD SERVICES AGREEMENT (THE "AGREEMENT")
GOVERNS ALL SERVICES ("SERVICES") PROVIDED BY ACTIAN
CORPORATION ("ACTIAN" OR "WE" OR "US") THROUGH THE
WEBSITE LOCATED AT THE AMAZON AWS MARKETPLACE WEBSITE
(HTTPS://AWS.AMAZON.COM/MARKETPLACE/), THE MICROSOFT
AZURE MARKETPLACE WEBSITE (HTTPS://AZUREMARKETPLACE.
MICROSOFT.COM) AND/OR SUCH OTHER WEBSITE DESIGNATED BY
ACTIAN ("SITE") PURSUANT TO ORDERS PLACED BY YOU WITH
ACTIAN OR A THIRD PARTY AUTHORIZED BY ACTIAN TO RECEIVE
ORDERS ON ORDER FORMS PROVIDED BY ACTIAN OR ITS
AUTHORIZED THIRD PARTY THAT REFERENCE THIS AGREEMENT
AND INCLUDE YOUR ORDER-SPECIFIC INFORMATION INCLUDING,
BUT NOT LIMITED TO: YOUR BILLING INFORMATION, A LIST
OF THE SERVICES ORDERED AND ANY APPLICABLE PRICING
METRICS (SUCH AS THE NUMBER OF USERS, TIME PERIOD,
AMOUNT OF DATA, ETC.) AND PRICE ("ORDER FORM(S)").
YOU MUST HAVE ACCEPTANCE OF YOUR ORDER FORM FROM
ACTIAN OR ITS AUTHORIZED THIRD PARTY IN ORDER TO USE
THE SERVICES, AND EVEN THEN ONLY THE ORDER-SPECIFIC
INFORMATION ON THE ORDER FORM SHALL APPLY. IN THE
EVENT OF A CONFLICT OR INCONSISTENCY BETWEEN AN ORDER
FORM AND THIS AGREEMENT, THE TERMS OF THIS AGREEMENT
SHALL CONTROL.
YOU ARE REQUIRED TO INDICATE YOUR AGREEMENT TO THESE
TERMS AND CONDITIONS IN ORDER TO ACCESS AND USE THE
SERVICES. BY CLICKING ON THE "ACCEPT" BUTTON OR
ACCESSING AND USING THE SERVICES, YOU ARE CONSENTING
TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING
INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER
LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE
AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND
CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR"
SHALL REFER TO SUCH ENTITY. IF YOU HAVE ENTERED
INTO A SEPARATE SIGNED AGREEMENT WITH ACTIAN GOVERNING
YOUR USE OF THE SERVICES, TO THE EXTENT OF A CONFLICT,
THE SEPARATE SIGNED AGREEMENT WILL GOVERN.
1. TRIAL OR BETA VERSIONS. If You are registering
to use the Services for a trial period or are
registering to use a beta version of the Services,
You may only use the Services for internal evaluation
purposes during the applicable trial or beta Term.
Provisions in this Agreement regarding support and
Available Access Time do not apply to trials or beta
versions of the Services.
2. SERVICES. Subject to Your compliance with the
terms and conditions of this Agreement, including
without limitation Your payment of the applicable
fees for the use of the Services ("Fees"), Actian
grants You a nonexclusive, nontransferable,
revocable, limited license during the Term to access
and use the Services solely as necessary to upload,
store, manage and query Your Content (as defined
below). Unless otherwise expressly authorized in
writing by Actian, You may only use the Services for
Your internal business purposes and may not upload,
store, manage or query Content, or sell, resell,
distribute, loan, encumber, transfer, sublicense,
rent, lease, or otherwise allow third parties to
access the Services. You will adhere to all laws,
rules, and regulations applicable to Your use of
the Services.
3. ACTIAN TOOLS. From time to time, Actian may
make available to You certain software, tools, and
other materials for download and use in connection
with Your use of the Services ("Actian Tools").
Subject to Your compliance with the terms and
conditions of this Agreement, including without
limitation Your payment of all applicable Fees,
Actian grants You a nonexclusive, nontransferable,
revocable, limited license during the Term to
download, install, copy, and use the Actian Tools
solely in connection with and as necessary for
Your use of the Services.
4. RESTRICTIONS. You agree not to: (i) use the
Services or Actian Tools except as expressly
authorized in this Agreement and Your Order Form;
(ii) use any device, software, or routine that
(a) interferes with any application, function, or
use of the Services or Actian Tools, or (b) is
intended to damage, detrimentally interfere with,
surreptitiously intercept, or expropriate any system,
data, or communication; (iii) resell, sublicense,
time-share, or otherwise use or share the Services
with or for the benefit of any third party, including
but not limited to using the Services in a service
bureau, SaaS, ASP, marketing, training outsourcing
services, consulting services or other commercial
service related to the Services or other similar
hosted environment, except as otherwise expressly
permitted in this Agreement or authorized by Actian
in writing; (iv) frame or mirror the Site;
(v) decompile, disassemble or reverse-engineer the
Actian Tools or the underlying software that is part
of the Services or otherwise attempt to derive the
source code for the foregoing; (vi) use the Services
or Actian Tools either directly or indirectly to
support any activity that is illegal; (vi) access
the Services for purposes of monitoring its
availability, performance or functionality (other
than for trial purposes), or for any other
benchmarking or competitive purposes; use the
Services to develop a product or service which is
competitive with any of the Services marketed by
Actian, (vii) download or export from the Site any
Actian software or software images or disks connected
with the Services unless You have purchased the
requisite licenses from Actian or an authorized
Third Party to use such software images; or
(viii) authorize any third parties to do any of
the above. You shall notify Actian if You become
aware of any unauthorized access to, or use of,
the Services.
5. NO SPAM. You will not distribute, publish, send,
or facilitate unsolicited mass e-mailings, promotions,
advertising, or solicitations (e.g. "spam"), including
commercial advertising and informational announcements.
Actian and the CSV (as defined below) may: investigate
violations of this Agreement or misuse of the Services;
or remove, disable access to, or modify any Content or
resource that violates this Agreement or any other
agreement with You for use of the Services or the CSV
services. Actian and the CSV may report any activity
that Actian or the CSV suspect violates any law or
regulation to appropriate law enforcement officials,
regulators, or other appropriate third parties. Such
reporting may include disclosing appropriate customer
information. Actian and the CSV also may cooperate
with appropriate law enforcement agencies, regulators,
or other appropriate third parties to help with the
investigation and prosecution of illegal conduct by
providing network and systems information related to
alleged violations of this Agreement.
6. OWNERSHIP. Actian and/or its licensors own all
worldwide right, title and interest in and to the
Services and the Actian Tools, including all
worldwide intellectual property rights therein.
You may not delete or in any manner alter the
copyright, trademark, and other proprietary rights
notices appearing in or on the Services as provided.
You may from time to time provide suggestions,
comments, or other feedback to Actian with respect
to the improvement, correction, or modification of
the Services or Actian Tools (collectively,
"Feedback"). You agree that Actian shall be free to
use, disclose, reproduce, license, distribute, and
otherwise commercially exploit the Feedback provided
to it with respect to the Services or Actian Tools as
it sees fit, entirely without obligation or
restriction of any kind. You may not modify, alter,
tamper with, repair or otherwise create derivative
works, compilations or collective works of the
Services, Actian Tools or software provided or
accessible in connection therewith.
7. FEES AND BILLING. In order to access and use the
Services, You are required to pay to Actian (or a
third party authorized by Actian to receive payment)
the applicable Fees for the Services that You
ordered. Depending on the Services and payment
options made available by Actian or its authorized
third party and selected by You, Fees may include
one-time charges, hourly, monthly, quarterly, or
annually recurring charges, and usage-based charges.
Payment terms will be set forth in the Order with
Actian or the third party authorized by Actian to
receive payment. Payments must be made in US dollars.
Fees are exclusive of all taxes, levies, and duties
imposed by taxing authorities, and You are responsible
for all such taxes, excluding taxes based solely on
Actian's income. Any billing disputes must be
reported to Actian or its authorized third party in
writing within thirty (30) days of the date of the
invoice. All Fees are nonrefundable. Actian reserves
the right to charge a reconnection fee if Your
Services are suspended or if You terminate this
Agreement and re-order Services within three months
from the termination date. If any amount is more
than thirty (30) days overdue, Actian may suspend
Services until all overdue amounts are paid in full.
8. USER ACCOUNTS. You are responsible for obtaining,
maintaining, and supporting all internet access,
computer hardware, and other equipment and services
needed for access to the Services. You are responsible
for properly configuring and using the Services and
taking Your own steps to maintain appropriate
security, protection and backup of Your Content,
including using encryption technology to protect
Your Content from unauthorized access and routinely
archiving Your Content.
9. YOUR CONTENT. As used herein, "Content" means
any material, information or data, whether owned by
You or a third party, that is provided by You and
with which You use the Services to upload, store,
manage or query. As between Actian and You, all
Content provided or submitted by You to Actian
through the Services, remains Your sole property.
You shall: (i) have sole responsibility for the
accuracy, quality, integrity, legality, reliability,
and appropriateness of all of Your Content and
(ii) use commercially reasonable efforts to prevent
unauthorized access to, or use of, the Services, and
notify Actian promptly of any such unauthorized use.
You hereby grant to Us, and We hereby accept, the
non-exclusive, nonsublicenseable license to use,
copy, store, modify and display Your Content solely
to the extent necessary to provide the Services to
You. You represent and warrant that: (i) You or Your
licensors own all right, title and interest in and to
Your Content or have all the rights in the Content to
use it and grant the rights contemplated in this
Agreement; (ii) no Content will contain any malicious
or hidden mechanisms or code for the purpose of
damaging or corrupting the Services or CSV network;
(iii) You will not use, or encourage, promote,
facilitate or instruct others to use, the Services
for any illegal, harmful or offensive use, or
transmit, store, display, distribute or otherwise
make available content that is illegal, harmful, or
offensive. You must abide by all applicable local,
state, national and foreign laws, treaties and
regulations in connection with Your use of the
Services, including those related to export
regulations, data privacy, international
communications and the transmission of technical
or personal data. You will not provide Actian with
access to any of Your Content that includes any PII
under this Agreement. You will ensure that any PII
transmitted through the Services by You will be
encrypted with enterprise standard encryption
technology prior to transmitting the PII through the
DataCloud Services. You will not provide any keys to
Actian allowing Actian to decrypt the PII. As used
herein, "PII" means any information or data that
identifies an individual or from which an individual
may be identified, including, without limitation, an
individual's name, address, telephone number,
driver's license, identification card or passport
numbers, personal identification codes or numbers,
electronic mail names or addresses, financial
account information, credit card numbers, account
numbers and all "personal information," "nonpublic
personal information," personal health-related
information, and other similar information, however
described, as defined under applicable data privacy
and security laws.
10. ACTIAN RESPONSIBILITIES. Actian shall use
commercially reasonable efforts to: (i) not disclose
or use Your Content except as reasonably necessary in
connection with providing the DataCloud Services.
Notwithstanding the foregoing, Actian may disclose
Your Content if Actian determines that such action
is reasonably necessary: (a) to comply with the law,
regulatory requirements, or legal or regulatory
process; (b) to enforce this Agreement; (c) to comply
with Actian's agreement with the CSV or as otherwise
required by the CSV, or (d) to respond to claims that
You are using the Services to perform or support
activities that violate the law or the rights of
third parties. Unless prohibited by law or legal
process, Actian will use its commercially reasonable
efforts to not disclose Content without giving You
notice of the request for such disclosure and a
reasonable period of time to respond to such request.
(ii) maintain the security and integrity of the
Services; (iii) provide support procured on the Order
Form or included in the Services; (iv) ensure that
the Services are available and performing
substantially in accordance with the online help
documentation with an Available Access Time of 99.9%
over each monthly period during the Term.
"Available Access Time" means twenty-four (24) hours
per day, seven (7) days per week, except for:
(1) planned down time and (2) down time caused by
circumstances beyond Actian's reasonable control,
including without limitation, acts of God, acts of
government, flood, fire, earthquake, civil unrest,
acts of terror, strike or labor problems, problems
with software, hardware, telecommunications lines,
network connections, or other equipment not within
Actian's possession or reasonable control, or denial
of service attacks. In the event Customer cannot
access the Services for four (4) or more hours of the
99.9% Available Access Time in any one (1) calendar
month, Actian will issue a credit to You in an amount
equal to one (1) day of Services for each increment
of four (4) hours of such unavailable time in that
month ("Service Credit"). To qualify for a Service
Credit, You must request such Service Credit from
Actian via a FAX or e-mail within three (3) days
after the end of the applicable month using a form
supplied by Actian. The maximum number of Service
Credits that may be credited for any reason to You
will be seven (7) Service Credits in any one
Services month. Your sole and exclusive remedy,
and Actian's sole liability, for Actian's failure
to provide the DataCloud Services or to meet the
Available Access Time or otherwise provide the
Services in accordance with this Agreement shall
be the provision of Service Credits to You as
described herein.
11. TERM AND TERMINATION. This Agreement will
commence on the date that You click the "Accept"
button (unless a different effective date is
specified in the Order Form in which case the
effective date in the Order Form will apply as the
start date for the Agreement) and will remain in
effect for the period for which You have paid for
the Services ("Term"), unless earlier terminated by
You or Actian as provided below in this Section. If
You are accessing trial or beta versions of the
Service under Section 1 above, the Term will
automatically terminate at the end of the applicable
trial or beta period specified by Actian, or if no
trial or beta period is specified by Actian, then
thirty (30) days from the date that You click the
"Accept" button. You may terminate this Agreement
at any time with at least thirty (30) days prior
written notice. However, in the case of such
termination by You, all Fees paid by You under this
Agreement are nonrefundable, including, but not
limited to, any portion of fees paid in advance by
You for the Services. Also, such termination by You
shall not relieve You of Your obligation to pay any
Fees accrued or payable to Actian relating to the
Services prior to the effective date of termination,
and You shall immediately pay to Actian all such
Fees upon the effective date of termination.
Without limiting any other remedies available to it,
Actian may immediately suspend access to the
Services and/or terminate this Agreement if:
(a) You breach any material provision of this
Agreement that, (if it is capable of being cured)
is not cured within fifteen (15) days from written
notice to You; (b) Actian determines that Your
actions are likely to cause legal liability for
Actian or its suppliers and other customers or Your
use of the Services has violated the CSV's
acceptable use policy; c) Your use of the Services
disrupts or poses a security risk to the Services or
any other third party or may harm the CSV network,
any third party network or Actian's network; (d) You
are using the Services for fraudulent or illegal
activities; (e) Actian's continued provision of any
of the Services is prohibited by applicable law;
(f) CSV modifies the terms of its agreement with Us
by including new or amended terms that We refuse to
accept, (g) CSV modifies its offerings or technology
in such a way as to negatively affect the Services;
(h) CSV suspends or terminates its agreement to
provide Actian the CSV services for any reason; or
(i) You have ceased to operate in the ordinary
course, made an assignment for the benefit of
creditors or similar disposition of Your assets, or
become the subject of any bankruptcy, reorganization,
liquidation, dissolution or similar proceeding. If
Your use of or access to the Services is suspended:
(a) You remain responsible for all fees and charges
You have incurred through the date of suspension;
(b) You remain responsible for any applicable fees
and charges for any Services to which You continue
to have access, as well as applicable data storage
fees and charges, and fees and charges for
in-process tasks completed after the date of
suspension; and (c) You will not be entitled to
any service credits under the Service Level
Agreements for any period of suspension.
12. EFFECTS OF TERMINATION. We will have no
obligation to continue to store or permit You to
retrieve Your Content following any termination or
expiration of this Agreement. Upon any expiration
or termination of this Agreement, except for the
items in this Section 12 (a) through (c) above, the
rights and licenses granted hereunder will
automatically terminate, and You may not continue to
use the Service. Actian will have no liability for
any costs, losses, damages, or liabilities arising
out of or related to Actian's termination of this
Agreement. The provisions of Sections 4, 5, 6, 7,
9, 11-16, and 18 will survive termination of this
Agreement.
13. INDEMNITY. You will defend, indemnify and hold
Actian and its licensors harmless from and against
any loss, damage, liability or cost (including
reasonable attorneys' fees) resulting from any
third party claim based on: (i) Your use of Content
alone or in combination with other applications,
content or processes, that infringes,
misappropriates, or violates the rights of, or has
caused harm to, a third party; (ii) a violation by
You of Your representations and warranties; (iii) a
breach by You or Your authorized users of this
Agreement or violation of applicable law; or (iv) a
claim against the CSV concerning a dispute between
You and Us; provided that Actian promptly notifies
You in writing of any and all such claims. In the
event of any loss, damage, liability or cost for
which You are obligated to indemnify Actian
hereunder, You shall have sole control of the
defense and all related settlement negotiations, and
Actian shall reasonably cooperate with You in the
defense and/or settlement thereof at Your expense;
provided that Actian may participate in such defense
using its own counsel, at its own expense. If We,
CSV or either's affiliates are obligated to respond
to a third party subpoena or other compulsory legal
order or process resulting from any third party
claim listed above, You will also reimburse such
party for reasonable attorneys' fees, as well as
such party's employees' and contractors' time and
materials spent responding to the third party
subpoena or other compulsory legal order or process
at such party's then-current hourly rates. We may
also assume control of the defense and settlement
of the claim at any time.
14. DISCLAIMER. The Services and Actian Tools are
provided "AS IS" and the entire risk as to
satisfactory performance, accuracy, and effort is
with You. Actian does not warrant that the
operation of the Services or Actian Tools will
be error free or uninterrupted. ACTIAN HEREBY
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES
ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL
ACTIAN'S AGGREGATE LIABILITY EXCEED THE AMOUNTS
ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE
(12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL ACTIAN
AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY
INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL,
CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND
(INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR
OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY
WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT
LIMITED TO THE USE OR INABILITY TO USE THE SERVICES,
OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE
SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR
OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM
WHICH DAMAGES ARE BEING SOUGHT (OR SUCH PARTY'S
LICENSORS) HAVE BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION
OF INCIDENTAL AND CONSEQUENTIAL DAMAGES SHALL NOT
APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16. USAGE DATA. In addition to certain information
about You, including Your account information,
authorized user information, and services and support
information, that is needed to provide You with the
Services, Actian may maintain other information about
You, including the duration and frequency of Your use
of the Services and other usage data (collectively
"Usage Data"). Actian uses the Usage Data for
internal business purposes only, including improving,
testing and providing the Services and additional
services. Actian may disclose Usage Data in
aggregate form (e.g., data aggregated from Your and
other customers' use of the Services, but does not
identify You or any other customer) for promotion,
statistical analysis, market analysis, financial
analysis, and other such purposes.
17. AMENDMENTS. Actian may modify the terms of this
Agreement or Services at any time. You will be given
notice of any amendments to this Agreement of the
Services. In the event that CSV modifies the terms of
its agreements with Us (or We change the particular
CSV on which the Services are based), You acknowledge
and agree that We may modify the terms of this
Agreement to conform to the changed CSV terms, and
such changes shall be effective at the time the
changes in Our agreement with the CSV (or the new
CSV's terms) become effective. Actian may provide
notice to You by means of (i) posting information or
a link to it on the Actian website applicable to the
Services, (ii) a general notice on Your account
login screen, or (iii) by email to Your e-mail
address on record under Your account. Such notice
shall be deemed to have been given upon the
expiration of three days after posting, immediately
upon display on Your account login screen, or one
day after emailing.
18. GENERAL. This Agreement is intended for the
sole and exclusive benefit of the parties and is
not intended to benefit any third party. Only the
parties to this Agreement may enforce it. Any
action related to this Agreement shall be governed
by California law and controlling U.S. federal law,
and the choice of law rules of any jurisdiction
shall not apply. The parties agree that the United
Nations Convention on Contracts for the International
Sale of Goods shall not apply to this Agreement.
The venue for any claims arising under this Agreement
shall be the federal courts located in the Northern
District of California or the state courts located in
Santa Clara County, California, and the parties agree
to submit to the exclusive jurisdiction of such courts.
If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid or
unenforceable, then such provision(s) will be
construed, as nearly as possible, to reflect the
intentions of the invalid or unenforceable
provision(s), with all other provisions remaining in
full force and effect. No joint venture, partnership,
employment, or agency relationship exists between
You and Actian as a result of this Agreement or use
of the Services. You may not assign, transfer, or
otherwise delegate any of Your rights, duties, or
obligations under this Agreement in whole or in party
to any individual, firm or corporation without the
prior written consent of Actian. Any attempt to
assign, transfer or otherwise delegate any of Your
rights, duties, or obligations under this Agreement
without the prior written consent of Actian shall be
void. Except with respect to the obligation to pay
fees when due hereunder, neither party shall be
deemed in default of this Agreement because of a
delay or failure in performance of its obligation
resulting from any cause beyond its reasonable
control (a "Force Majeure"), provided it gives
reasonably prompt notice of the Force Majeure
condition to the other party and uses reasonable
efforts to mitigate the delay or failure. This
Agreement and any Order Forms constitute the
complete and exclusive understanding and agreement
between the parties regarding their subject matter
and supersede all prior or contemporaneous
agreements or understandings, written or oral,
relating to their subject matter. Any additional or
different terms in Your documents (including any
terms contained on ordering documents and purchase
orders) shall not apply and are hereby deemed to be
material alterations and notice of objection to, and
rejection of them is hereby given. No waiver of any
provision of this Agreement will be effective unless
it is in writing and signed by duly authorized
representative of the party against whom the waiver
is to be asserted. The failure by either party to
enforce any provision of this Agreement will not
constitute a waiver of future enforcement of that or
any other provision.
19. ADDITIONAL TERMS FOR CSVs. a) "CSV" means a
third-party cloud service vendor which has entered a
contract with Us to provide cloud services to Us on
which the Services are based. For purposes of
Section 15 ("Limitation on Liability") of the
Agreement, the term "Our suppliers" includes CSVs,
and for purposes of Section 13 ("Indemnity") of the
Agreement, the term "licensors" includes CSVs.
b) "Service Level Agreement" means the service
level agreement that We offer with respect to the
Services for the specific CSV on which the Services
are based, and which is provided in this Agreement
or on Our website.
Revised April 3, 2018