ClearDB Online Subscription Agreement

Effective Date: May 2, 2016

THIS ONLINE SUBSCRIPTION AGREEMENT IS BETWEEN THE ENTITY YOU REPRESENT, OR, IF YOU DO NOT DESIGNATE AN ENTITY IN CONNECTION WITH A SUBSCRIPTION PURCHASE OR RENEWAL, YOU INDIVIDUALLY (“YOU” OR “YOUR”), AND CLEARDB, INC. (“CLEARDB”, “WE”, “US”, OR “OUR”). IT CONSISTS OF THE TERMS AND CONDITIONS BELOW, AS WELL AS THE SLAS AND THE SERVICE PLANS FOR YOUR SUBSCRIPTION (TOGETHER, THIS “AGREEMENT”). IT IS EFFECTIVE ON THE DATE WE PROVIDE YOU WITH CONFIRMATION OF YOUR SUBSCRIPTION OR THE DATE ON WHICH YOUR SUBSCRIPTION IS RENEWED AS APPLICABLE.

IF YOU ARE AN INDIVIDUAL ACCEPTING THESE TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON THAT ENTITY’S BEHALF.

1. Definition of Key Terms

“Acceptable Use Policy” means terms and conditions applicable to the use of the ClearDB Database Services and your Subscription that are published by ClearDB on the ClearDB Portal from time-to-time.

“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.

“Channel Partner Site” means a web site operated by or on behalf of a ClearDB Channel Partner through which the ClearDB Database Services may be ordered by a Customer.

“ClearDB Channel Partner” means third parties through which ClearDB makes the Online Services available, including Microsoft Azure, Heroku and AppDirect.

“ClearDB Database Services” means any of the cloud database services hosted by or on behalf of ClearDB, under Subscriptions by Customer under this Agreement on any available Service Plan. References to the ClearDB Database Services in this Agreement will also refer to the database created by you through use of the ClearDB Database Services unless the context indicates otherwise.

“ClearDB Portal” means the ClearDB website through which the ClearDB Database Services may be ordered directly from ClearDB.

“Customer Data” means all data and information hosted on behalf of you in connection with the ClearDB Services.

“End User” means any person you permit to access Customer Data hosted in the ClearDB Database Services or otherwise use the ClearDB Database Services.

“Service Levels” means the specific level of ClearDB Database Services based on database storage capacity, performance, number of connections and other metrics for a specific Subscription offer under the Service Plans.

“Service Plans” means the pricing and related terms applicable to a Subscription offer, as published on the ClearDB Portal.

“SLA” means the commitments we make regarding delivery and/or performance of an Online Service, as published here, or at an alternate site that we identify.

“Subscription” means an enrollment for the ClearDB Database Services for a defined Term as specified on the ClearDB Portal. You may purchase multiple Subscriptions, which may be administered separately and which will be governed by the terms of a separate ClearDB Online Subscription Agreement.

“Term” means the duration of a Subscription (e.g., 30 days or 12 months).

2. Use of ClearDB Database Services.

(a) Right to Use. We grant you the right to access and use the ClearDB Database Services solely for Customer’s internal business purposes, as further described in this Agreement. We reserve all other rights not expressly granted in this Agreement.

(b) Acceptable Use. You may use the ClearDB Database Services only in accordance with this Agreement. In particular, you may not do any of the following in connection with your use of the ClearDB Database Services:

(i) You may not reverse engineer, decompile, disassemble, or work around technical limitations in the ClearDB Database Services, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Online Services.

(ii) You may not rent, lease, lend, resell, transfer, or host the ClearDB Database Services, or any portion thereof, to or for third parties except as expressly permitted in this Agreement, or otherwise use the ClearDB Database Services for the benefit of a third party or to operate a service bureau.

(iii) You may not attempt to probe, scan, penetrate or test the vulnerability of a ClearDB system or network used by us to deliver the ClearDB Database Services, or to breach ClearDB’s security or authentication measures, whether by passive or intrusive techniques.

(iv) You may not use any shared system provided by ClearDB in a way that unnecessarily interferes with the normal operation of the shared system through which we delver our services, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of ClearDB Database Services if it has a negative impact on the backend database system, or we may require you to repair coding abnormalities in your ClearDB interfacing code if it unnecessarily conflicts with other ClearDB customers’ use of the ClearDB system. You agree that we may quarantine or delete any data or code stored on a the ClearDB system if the data or code is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other Customer Data that is stored on the same system.

(v) In addition, you will be subject to any additional restrictions and other terms and conditions set forth in the then-current Acceptable Use Policy published by ClearDB from time-to-time.

(c) End Users. You control access by End Users, and you are responsible for their use of the ClearDB Database Services in accordance with this Agreement. For example, you will ensure End Users comply with the Acceptable Use Policy.

(d) Customer Data. You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the ClearDB Database Services to you without violating the rights of any third party, including any privacy rights. ClearDB does not and will not assume any obligations with respect to Customer Data or to your use of the ClearDB Database Services other than as expressly set forth in this Agreement or as required by applicable law. ClearDB will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Customer Data. You acknowledge that the ClearDB Database Services are provided from the United States and, by using the ClearDB Database Services, you consent to the storage and processing of your Customer Data in the United States. ClearDB reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide you with at least 30 days notice of any such changes in the processing location.

(e) Responsibility for Your Accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the ClearDB Database Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the ClearDB Database Services, including of any unauthorized use of or access to your Customer Data.

3. Purchasing Services.

(a) Available Service Plans. The Service Plans specify the available Subscription offers. Subscriptions are either available for a specific Term, or on a month-to-month basis, as specified on the Subscription order form available on the ClearDB Portal through which you purchased your Subscription. Subscriptions automatically renew upon expiration of the then-current Term unless you delete the associated database prior to expiration.

(b) Ordering. Subscriptions may be ordered either through the ClearDB Portal or through a Channel Partner Site. By ordering a Subscription, you agree to the Service Plans for that Subscription. Unless otherwise specified in the Service Plans and its associated SLA (if any), ClearDB Database Services are offered on an “as available” basis. You may place orders for your Affiliates under this Agreement and grant your Affiliates administrative rights to manage the Subscription, but Affiliates may not place orders under this Agreement. If you grant any such rights to Affiliates, such Affiliates will be bound by this Agreement and you agree to be jointly and severally liable for any actions of such Affiliates related to their use of the Online Services.

(i) The service fees for a Subscription are based on the specific Service Levels for that Subscription. Some Service Plan offers may permit you to upgrade the Service Levels ordered during the Term to a higher level of service and your service fees may be adjusted accordingly, but service fee changes will not be retroactive. All prices are subject to change at the beginning of any Subscription renewal.

(ii) ClearDB will invoice Customers for service fees applicable to Subscriptions ordered directly from ClearDB through the ClearDB Portal. Each Subscription is billed according to the then-current pricing schedule published on the ClearDB Portal. Payments are processed on a monthly basis in arrears for the ClearDB Database Services provided in the prior month or any portion thereof. ClearDB charges monthly service fees for the ClearDB Database Services. For billing issues or disputes, please contact customerservice@cleardb.com.

(iii) You will be billed directly by a ClearDB Channel Partner for Subscriptions ordered through a Channel Partner Site. In these cases, you will be subject to terms and conditions established by the ClearDB Channel Partner and any billing issues or disputes shall be directed to the applicable ClearDB Channel Partner.

(d) Taxes. Prices are exclusive of any taxes. You must pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this Agreement and which we are permitted to collect from you under applicable law. You will be responsible for all other taxes that you are legally obligated to pay including any taxes that arise on the distribution or provision of ClearDB Database Services to your Affiliates and your End Users. We will be responsible for all taxes based on our net income or on our property ownership.

4. Term, Termination and Suspension.

(a) Agreement Term. This Agreement will remain in effect until the expiration, termination, or renewal of your Subscription, whichever is earliest.

(b) Subscription Termination by Customer. You may terminate a Subscription at any time during its Term; however, you must pay all amounts due and owing before the termination is effective. A month-to-month Subscriptions may be terminated anytime without any cancellation fee. If you terminate a Subscription having a fixed Term exceeding one month, you will be liable for the service fees applicable to the remainder of the then-current Term, and no refunds will be provided.

(c) Suspension or Termination by ClearDB. We may suspend your use of the ClearDB Database Services if: (i) it is reasonably needed to prevent unauthorized access to Customer Data; (ii) you do not pay amounts due under this Agreement; or (iii) you do not comply with the Acceptable Use Policy or you violate other terms of this Agreement. ClearDB reserves the right to terminate your Subscription and disable access to your ClearDB Database Services database if you are in default on any payment by more than nine (9) days. If ClearDB has not received payment within five (5) days of disconnection, your Subscription and this Agreement will automatically terminate. Termination of your Subscription includes removal of access to the all ClearDB Database Services, including your database, and deletion of your Customer Data, login data, password and all related information. Further, you agree that such termination shall be made in our sole discretion, and that we will not be liable to you or any third party for any termination of your Subscription or access to the ClearDB Database Services and associated database. ClearDB will not be obligated to provide refunds for any service fees previously paid by you.

(d) Survival. The terms in Sections 1, 3(d), 4(d), 5(b), 6, 7 and 8 will survive termination or expiration of this Agreement.

5. Warranties.

(a) Limited Warranty. We warrant that the ClearDB Database Services provided by us will meet the terms of the SLA during the Term. Your only remedies for breach of this warranty are those contained in the SLA. This limited warranty is subject to the following limitations: (i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty; (ii) this limited warranty does not cover problems caused by accident, abuse or use of the ClearDB Database Services in a manner inconsistent with this Agreement or our published documentation or guidance, or resulting from events beyond our reasonable control; and (iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements.

(b) DISCLAIMER. OTHER THAN THIS WARRANTY, WE PROVIDE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WE DO NOT GUARANTEE THAT THE USE OF THE CLEARDB DATABASE SERVICES AND ACCESS TO YOUR DATABASE WILL BE UNINTERRUPTED OR ERROR-FREE. THE LIMITATIONS AND NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLEARDB AND YOU. THE CLEARDB DATABASE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THESE DISCLAIMERS WILL APPLY EXCEPT TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THEM.

6. Indemnification.

To the extent permitted by law, you will defend, indemnify and hold ClearDB harmless from and against any claims or demands made by a third party, and all resulting cost, damage or other liability, to the extent arising from (a) any Customer Data or services you provide, directly or indirectly, in using the ClearDB Database Services infringes the third party’s patent, copyright or makes unlawful use of its trade secret; (b) arise from claims by an End User or any Affiliate of an End User; or (c) arises from violation of the Acceptable Use Policy or the other terms and conditions of this Agreement. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of this ClearDB Database Services, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.

7. Limitation of liability.

ClearDB’s aggregate liability for all claims asserted under this Agreement is limited to direct damages up to the amount paid under this Agreement for the ClearDB Database Services during the three (3) months before the cause of action arose. CLEARDB WILL NOT BE LIABLE TO YOU FOR LOSS OF REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, EVEN IF CLEARDB KNEW THEY WERE POSSIBLE OR REASONABLY FORESEEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

8. Miscellaneous.

(a) Notices. You must send notices by mail, return receipt requested, to the address below. Notices should be sent to:

ClearDB, Inc.
6860 Dallas Parkway
Suite 200
Plano, Texas 75024

You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify in the ClearDB Portal when you ordered your Subscription, which you agree to keep up-to-date as required while your Subscription is in effect. If you ordered or upgraded your Subscription through a ClearDB Channel Partner Site, you agree to provide us with an email address for purposes of receiving notices upon request from ClearDB from time-to-time. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the account administrator email address that you specify in the ClearDB Portal is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.

(b) Assignment. You may not assign this Agreement either in whole or in part without our express written consent.

(c) Consent to ClearDB Channel Partner Terms. If you order any Subscription from a ClearDB Channel Partner through a Channel Partner Site, you agree to be bound by any applicable terms and conditions established by the that ClearDB Channel Partner, including all Terms of Use on the Channel Partner Site.

(d) Changes to These Terms. We reserve the right to revise this Agreement from time to time. ClearDB will date and post the most current version of this Agreement on the ClearDB Portal. Any changes will be effective upon posting the revised version of this Agreement (or such later effective date as may be indicated at the top of the revised Agreement). Notice of other changes may be provided via the ClearDB Portal or related ClearDB blogs. Your continued access or use of any portion of the ClearDB Database Services constitutes your acceptance of such changes. If you don’t agree to any of the changes, ClearDB reserves the right to discontinue providing the ClearDB Database Services to you and you waive any rights you may have with respect thereto.

(e) Severability and Waiver. If any part of this Agreement is held unenforceable, the rest remains in full force and effect. Failure to enforce any provision of this Agreement will not constitute a waiver. This Agreement does not create an agency, partnership, or joint venture. There are no third-party beneficiaries to this Agreement.

(f) Entire Agreement. This Agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications or agreements between you and ClearDB. In the case of a conflict between this Agreement and any external terms and conditions referred to elsewhere in this Agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this ClearDB Online Subscription Agreement, (2) the Acceptable User Policy, (3) our SLA, (4) the applicable Service Plans, and (5) any terms and conditions established by a ClearDB Channel Partner.

(g) Applicable Law and Venue. This Agreement is governed by Texas law, without regard to its conflict of laws principles, except that (i) if you are a U.S. Government entity, this Agreement is governed by the laws of the United States, and (ii) if you are a state or local government entity in the United States, this Agreement is governed by the laws of that state. Any action to enforce this Agreement must be brought in the State of Texas. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.

(h) Force Majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of ClearDB Database Services). This Section will not, however, apply to your payment obligations under this Agreement.