COCKROACH LABS SOFTWARE-AS-A-SERVICE TERMS & CONDITIONS

3. PAYMENT; TAXES.

3.1 Payment. We will bill you for your Service Fees and you will timely pay us the Service Fees through the payment methods we make available to you without any setoff or deduction. We may require prepayment of Service Fees or a deposit from you at our discretion. All Service Fees will be accrued and paid in US dollars and are nonrefundable. You will promptly provide us with information we reasonably require to complete our payment review process.  You are responsible for providing complete and accurate billing and contact information to us, and notifying us promptly of any changes to such information

3.2 Late Payment. Any amount not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month or at the highest amount permitted by applicable law (if lower), in addition to any costs of collection incurred by us. For payments that are late, without limiting Cockroach Labs’ other rights and remedies, Cockroach Labs may immediately suspend Company’s access to the Services until payment in full has been made.

3.3 Taxes. Except and solely to the extent as otherwise indicated by Cockroach Labs, fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Company will be responsible for payment of such taxes and duties of any kind, whether foreign or domestic, other than taxes based on 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 Services Agreement shall commence on the date you became bound by this Services Agreement or otherwise began use of the Services and will continue until terminated as provided herein (the “Term”).

4.2 Suspension; Termination for Breach or Cause. We may suspend in whole or in part your use of the Services or access to your Services account, including any data housed therein, immediately if (i) you fail to timely pay us amounts owed for use of the Services, (ii) we have reason to suspect that your use of the Services (a) poses a risk to the Services, to us, or to our customers, (b) could violate this Services Agreement or applicable law, or (c) infringe or violate any third party right (including intellectual property right), or (iii) you have made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, liquidation, reorganization, dissolution, or similar proceeding. We may also terminate this Services Agreement immediately upon written notice to Company in connection with any breach of this Agreement. If Cockroach Labs terminates your use of the Services in whole or in part pursuant to this Section 4.2, all Service Fees for the remainder of the then-current Term, without discount or pro rata reduction in connection with any reduction in the Term due to such termination, will be due and payable within thirty (30) days.

4.3 Termination for Convenience. We may, in our sole discretion, terminate this Services Agreement for any or no reason upon no less than thirty (30) days’ prior notice to you. If you are a Free Tier Customer, Cockroach Labs may, in its sole discretion and without further notice, suspend or terminate your use of any or all Services at any time for any or no reason.

4.4 Survival. Upon termination of this Services Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except (a) all obligations accrued prior to the effective date of termination (including without limitation, all payments) shall survive, (b) Company shall cease using the Services, and (c) Sections 1, 3, 5, 6, 8, 9, 10 and 11, and this sentence, of this Services Agreement shall survive the termination this Services Agreement for any reason.

5. PROPRIETARY RIGHTS.

5.1 Cockroach Labs Ownership. Except for the rights, permissions, and licenses explicitly granted in this Services Agreement, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the Services, including Aggregated Service Data, Service interfaces, extensions, and derivative works, are and shall remain the exclusive property of Cockroach Labs and/or its suppliers. Cockroach Labs and its suppliers reserve any and all rights not expressly granted in this Services Agreement. Cockroach Labs and CockroachDB are trademarks of Cockroach Labs, Inc., and shall not be used by Company without Cockroach Labs’ express authorization.

5.2 Feedback. You are not required to give us any request, suggestions, enhancement ideas, specifications, or other feedback regarding the Services (“Feedback”). If you do provide us Feedback, you grant us and our Affiliates a worldwide, perpetual, irrevocable, fully paid and royalty-free right to fully exploit, use and incorporate into our products, services or software any Feedback you provide in our sole discretion.

6. Data.

6.1 Company Data Nothing herein will be construed to confer to us ownership or rights to Company Data other than the express license grants specified herein. Company grants us a non-exclusive, worldwide license to use, modify and share Company Data to provide the Services to you or as directed by you. Company is solely responsible for ensuring all necessary consents and/or disclosures are made for the use and processing of Company Data within the Services, and for the proper configuration of Company Data for use in the Services and for maintaining the security of Company Data.

6.2 Usage Data; Aggregate Service Data. We may track and analyze your Usage Data to provide, maintain, protect and improve the Services. Aggregate Service Data is the sole and exclusive property of Cockroach Labs. Our collection of personal information (excluding Company Data) from you and how we use it is described in more detail in our Privacy Policy.

6.3 Sensitive and Regulated Data.

7. WARRANTY AND DISCLAIMER. THE SERVICES ARE PROVIDED TO COMPANY “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND. COCKROACH LABS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING 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.

8. CONFIDENTIALITY

8.1 Confidentiality Obligations. Cockroach Labs and Company will retain in confidence all Confidential Information transmitted by the other party to it during the term of this Services Agreement, and, solely to the extent retained by Cockroach Labs or Company in accordance with the terms hereof, for a period of three (3) years beyond the Term. The parties will make no use of the other party’s Confidential Information except to further the purposes set forth in this Services Agreement.

8.2 Exclusions; Required Disclosures. Notwithstanding Section 8.1, neither Cockroach Labs, nor Company shall 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 rightfully 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 and is not subject to restriction. 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.

9. INDEMNITY.

9.1 Company Indemnity. Company shall indemnify, defend, and hold Cockroach Labs and its Affiliates and licensors, and its and their employees, officers, directors, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in connection with the Company Data or Company’s use of or access to the Services, except for claims that the Services infringe or misappropriate a third party’s intellectual property rights.

9.2 Cockroach Labs Indemnity. Cockroach Labs shall indemnify, defend, and hold Company harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in connection with a third-party claim that the Services infringe or misappropriate such third party’s intellectual property rights. The foregoing obligation shall not apply to: (a) combinations or use of the Services with any products, processes or materials not provided by Cockroach Labs where the alleged infringement relates to such combination or use, (b) modifications to the Services made by any unauthorized third party, or made by Cockroach Labs at your request, to the extent the alleged infringement relates to such modification, (c) infringement or misappropriation of any intellectual property right in which Company has an interest, or (d) claims that the Company Data infringes or misappropriates a third party's intellectual property rights. If the Services become or, in Cockroach Labs’ opinion, is likely to become the subject of an injunction, Cockroach Labs may, at its option, (i) procure for Company the right to continue using such Service as contemplated hereunder, (ii) modify the Service to make it non-infringing (without substantially compromising its functionality), or, if (i) and (ii) are not reasonably practicable, then (iii) terminate Company’s right to use the Service and refund Service Fees actually paid for the applicable Service with a prorated deduction to account for Company’s use thereof prior to such termination of use. The foregoing states the entire liability of Cockroach Labs with respect to infringement of intellectual property rights. Furthermore, the parties agree that the foregoing indemnification obligations of Cockroach Labs set forth in this section shall not extend to Company for liabilities arising while Company is a Free Tier Customer.

9.3 Indemnity Procedure. Each party’s indemnification obligations under this Section 9 are expressly contingent upon the party seeking indemnification giving the indemnifying party: (a) prompt written notice of any such claim or allegation for which indemnity is sought; (b) sole control over the defense and settlement thereof; and (c) reasonable assistance in such defense or settlement as the indemnifying party may request.

10. LIMITATION OF LIABILITY.

10.1 Exclusions. IN NO EVENT SHALL COCKROACH LABS HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Aggregate Liability. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS SERVICES AGREEMENT, THE AGGREGATE LIABILITY OF COCKROACH LABS FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS SERVICES AGREEMENT SHALL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT ACTUALLY PAID TO COCKROACH LABS BY COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE; AND (B) ONE-HUNDRED DOLLARS ($100.00).

11. MISCELLANEOUS.

11.1 Governing Law; Attorneys’ Fee; Severability; Notice. This Services Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York, without applying conflicts of law rules and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act as may be enacted in any applicable jurisdiction. THE JURISDICTION AND VENUE FOR ALL DISPUTES HEREUNDER WILL BE THE STATE AND FEDERAL COURTS IN THE COUNTY AND STATE OF NEW YORK, AND THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. If any provision of the Services Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. All notices under this Services Agreement must be in English and in writing. You may notify us by certified or registered mail, return receipt requested, sent to: 125 W 25th Street, 11th Floor, New York, NY 10001, ATTN: Legal Notice. We may notify you by posting a notice on the Services website or to your Services account, or via email at the email address associated with your Services account.

11.2 Assignment. Neither party may assign this Services Agreement or its rights or obligations under this Services Agreement to any person or party, whether by operation of law or otherwise, without the other party’s prior written consent, except that this Services Agreement may be assigned without consent to a person or entity who acquires all or substantially all of the assigning party’s assets, stock, or business, or by Cockroach Labs to its Affiliate.

11.3 Subcontractor. Subject to any applicable restrictions set forth in this Agreement, Cockroach may use subcontractors in providing the Services, but is liable for their acts or omissions.

11.4 No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Services 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 Services Agreement may be brought by Company more than one (1) year after the cause of action has accrued.

11.5 Export and Trade Compliance. You will comply with all applicable import, export, and sanctions Laws, including without limitation applicable economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control and export regulations administered by the U.S. Commerce Department’s Bureau of Industry and Security. You represent and warrant that neither you, nor your employees or any party that owns or controls you, nor any third party that you enable to access the Services, is subject to sanctions or designated on any list of prohibited or restricted parties, including those maintained by the UN Security Council, the U.S. Government (including Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders Lists), the European Union, or other applicable government authority.

11.6 U.S. Government Restricted Rights. Elements of the Services are commercial computer software. If the Services are being acquired by or on behalf of the U.S. Government, 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, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services are developed fully at private expense. All other use is prohibited.

11.7 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 Services 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, epidemics or pandemics, or any causes beyond the reasonable control of that party.

11.8 Publicity. During the Term of this Services Agreement, we may include your name and logo in customer lists and informational materials related to the Services. Company agrees to be a reference for Cockroach Labs and participate in a case study upon Cockroach Labs' request. Company agrees to participate in a press release regarding Company’s use of the Software, as mutually agreed upon. Neither party shall release its press release without first providing such press release to the other party for its review and approval. Cockroach Labs may use Company’s name and logo in customer lists related to the Services.

11.9 Entire Agreement. This Services Agreement together with the applicable web pages incorporated herein by reference constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly cancelled. Subject to the preamble, any modifications or waivers of this Services Agreement must be in writing and signed by both parties hereto.