Subscription Agreement (US & other non-EU Countries)

This Agreement is entered into by and between SkySQL and Customer as of the Effective Date, and establishes the terms and conditions pursuant to which SkySQL will provide Support services to Customer, as further described below.

1. Definitions. Capitalized terms defined either in this Section 1, or in the context in which they first appear in the Agreement (including the Order Form), will have the indicated meaning throughout the Agreement.

“Agreement” means this SkySQL Enterprise Subscription Agreement, together with the Order Form and the Support Policies, each of which are incorporated herein by reference.

“Customer” means the single end user entity (such as an LLC, corporation, organization or government agency) identified on the Order Form, including internal divisions of that entity, but excluding any subsidiaries or other affiliates of the entity unless specifically identified on the Order Form. Customer may not be, and represents that Customer is not, a service provider or utility model computing delivery vendor who serves external end users.

“Effective Date” means the date of the Order Form as shown thereon.

“GPL License” means the version of the GNU General Public License published by the Free Software Foundation applicable to Supported Software.

“Initial Term” means the initial term of this Agreement, as described on the Order Form.

“Order Form” means either: (a) the order form signed by Customer with reference to this Agreement; or (b) the order form submitted electronically by or on behalf of Customer via the online store at the SkySQL Website.

“Server” means a machine that processes data using one or more CPUs, and which is owned, leased or otherwise used or controlled by Customer. Each Server Backup, Server Blade or Server Virtual Machine contained in or emulated on such a machine constitutes a separate Server.

“Server Backup” means a Server that is used only to archive data or to provide standby capability on systems configured for disaster recovery purposes.

“Server Blade” means a complete computing system on a single circuit board. A Server Blade will include one or more CPUs, memory, disk storage, operating system and network connections. A Server Blade is designed to be hot-pluggable into a space-saving rack; each rack may contain many Server Blades.

“Server Virtual Machine” means a software implementation of a Server that executes programs like, and emulates, a physical Server. A single physical Server or Server Blade can host multiple operating systems and thereby include multiple Server Virtual Machines.

“SkySQL” means either SkySQL Inc, a Delaware Corporation, registered at 5948 Killarney Circle, San Jose, CA 95138

“SkySQL Website” means http://www.skysql.com .

“Support” means technical support services provided by SkySQL to Customer for Supported Software on the number of Servers designated on the Order Form or for which Customer has otherwise paid the appropriate fees hereunder, at the Support Level designated on the Order Form.

“Support Level” means the scope of Support to which Customer is entitled, as designated on the Order Form.

“Support Policies” means SkySQL’s then-current Support policies incorporated herein and displayed on the SkySQL Website for the applicable Support Level and the Supported Software, as modified by SkySQL from time to time. Support Policies are located at http://www.skysql.com/en/services/support/support-policies .

“Supported Software“ means specified versions of certain software for which SkySQL provides Support, on specified supported platforms for such software, as further described in the Support Policies; Supported Software excludes any software not specified in the Support Policies or not obtained and installed in accordance with the Support Policies.

2. Scope of Support.

2.1 General Scope of Support. Subject to the terms and conditions of this Agreement, and in exchange for the timely payment of Support fees, SkySQL agrees to provide Support to Customer in connection with Customer’s licensed use of Supported Software on or in connection with no more than the number of Servers designated on the Order Form.

2.2 Support Level. The scope of Support provided to Customer under this Agreement, and the Supported Software (including applicable versions and platforms) to which that Support applies, is subject to: (a) the Support Level designated on the Order Form; and (b) the Support Policies. All Servers must be on the same Support Level. Customer acknowledges that: (x) while SkySQL cannot guarantee Support results, SkySQL agrees to use its good faith, commercially reasonable efforts to provide Support in accordance with the Support standards set forth in this Agreement and the Support Policies; and (y) SkySQL reserves the right to discontinue Support of versions of the Supported Software, other than the most recently released version, at any time. SkySQL does not guarantee that any bug fix will actually be accepted into future versions of the applicable Supported Software; rather, Customer may seek to (i) purchase from SkySQL custom builds to Supported Software (to the extent accepted by SkySQL), for an extra fee, or (ii) upgrade to a SkySQL product or service that includes the bug fix, if any.

3. Subscription Term & Termination.

3.1 Term. Unless earlier terminated in accordance with this Section 3, the term of this Agreement shall: (a) commence on the Effective Date and continue for the Initial Term; and (b) thereafter, automatically renew for successive one-year terms, unless either party provides written notice of non-renewal no less than thirty (30) days prior to the end of the then-current term. The Initial Term and any renewal thereof are collectively referred to in this Agreement as, the “term.”

3.2 Termination. SkySQL may terminate this Agreement upon written notice in the event that Customer fails to timely pay any fees or expenses due hereunder, or any Supported Software applicable to the Support Level for Customer becomes, or is likely to become, the subject of a claim of intellectual property infringement or misappropriation. In addition, either party may terminate this Agreement in the event that the other party fails to cure a material breach hereof within thirty (30) days after receipt of written notice thereof. SkySQL may terminate the term of this Agreement at any time and for any or no reason upon the provision of sixty (60) days written notice to Customer, in which case SkySQL shall provide Customer with a pro rata refund of the applicable fees for the remainder of the months in the then-current term of the Agreement. In the event either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action so declared, the other party shall have the right to terminate this Agreement immediately. Except as set forth in Sections 3, 4 (solely with respect to fees arising before termination, related expenses and audit rights) and 5 - 11, which shall survive termination, upon termination of this Agreement, all rights and duties of the parties under this Agreement shall expire.

4. Fees and payments.

4.1 Fees. Customer shall pay to SkySQL the Support fees and other payments described in the Order Form. Fees for the initial term and each renewal term, if any, are due on the date that such term commences. SkySQL shall endeavor to invoice Customer on or prior to commencement of each renewal term, if any, with applicable fees due within the payment term indicated on the Order Form.  Fees for renewal terms, if any, will be set at SkySQL’s then-current fees for the applicable Support and other service.  

4.2 Late Payments. Any payment not made when due shall accrue late payment fees at the rate of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due. Late fees shall not constitute an election of, or SkySQL’s exclusive, remedy. Failure to pay fees when due shall entitle SkySQL to terminate this Agreement upon notice to Customer pursuant to Section 3.2. Customer agrees to pay any and all legal fees, collection fees and other expenses incurred by SkySQL to enforce this Agreement or otherwise due to Customer’s failure to pay any amounts due.

4.3 Currency. Fees shall be payable in immediately available funds, in the same currency in which the fees are quoted on the Order Form. Fees paid are non-refundable, except to the extent otherwise expressly provided in Section 3.2.

4.4 Taxes. All Support and other quoted fees are exclusive of local, state, federal and international sales, value added, excise, withholding and other taxes and duties of any kind. Customer shall be responsible for, and agrees to pay, any and all taxes and duties arising out of or in connection with this Agreement, other than taxes levied or imposed based upon SkySQL’s net income. If SkySQL has the legal obligation to pay or collect any taxes, as described above, Customer shall pay the appropriate amount directly to SkySQL in advance or reimburse SkySQL for amounts paid.

4.5 Travel Expenses. Support does not include or require travel or Customer site visits, except to the extent otherwise provided in the Support Policies. If Customer requests an on-site visit or other travel that is not included in the applicable Support Level, Customer agrees to pay SkySQL on an hourly basis: (a) at SkySQL’s then-current hourly rates for time spent providing Customer site services; and (b) at SkySQL’s then-current travel rate, for time spent in travel to or from Customer premises. Customer shall reimburse SkySQL for all reasonable travel-related expenses (e.g., travel, accommodations and meals) incurred while providing Support or other services, even for Support Levels that may include site visits, and SkySQL shall provide supporting receipts when requested.

4.6 Audit Rights. If Customer has subscribed to a Support Level that limits Support to a maximum number of Servers, SkySQL may, up to twice a year upon no less than thirty (30) days advance written notice, examine Customer’s facilities, books and records relevant to the number of Servers utilizing Supported Software or any component thereof during the term of this Agreement. Customer will provide SkySQL with reasonable accommodation for such examination, at the sole cost of SkySQL. If the actual number of such Servers during any given time period is shown to have exceeded the permitted maximum number of Servers for the then-applicable Support Level, Customer shall immediately pay to SkySQL: (a) an amount equal to the difference between the Support fees actually paid for such period and the Support fees that should have been paid in light of the actual number of Servers utilized by Customer; (b) interest on such amount from the date that such amount should have been paid, in accordance with Section 4.2 hereof; and (c) the reasonable out-of-pocket costs of the examination, if the actual number of Servers during any given time period exceeded the permitted maximum number of Servers by five percent (5%) or more. Customer agrees to retain its books and records relevant to the number of Servers for three years following termination or expiration of this Agreement.

5. Proprietary Rights; Authority.

5.1 All Code Subject to License for Underlying Software. All bug fixes and other Supported Software code delivered or modified by SkySQL or a SkySQL vendor on behalf of Customer in connection with this Agreement shall be subject to the terms and conditions of the license to which the underlying Supported Software is subject, and Customer agrees to consent to and comply with those license terms and conditions at all times. For example, if the licensor of a particular Supported Software version makes such version available pursuant to a version of the GPL License (such as MySQL or MariaDB), all bug fixes or other modifications shall be subject to that version of the GPL License. In the event that the applicable Support Level includes third party commercial software, such as DRBD, SkySQL shall make the applicable third party’s license terms and conditions available to Customer, either directly or through the third party.

5.2 Title. As between the parties, SkySQL will retain all right, title and interest in and to any software, tools, techniques, and other materials used in connection with this Agreement and any work product created as part of this Agreement. As between the parties, Customer will retain all right, title and interest in and to any software, products, documentation and other materials it supplies.

5.3 Authority. Customer represents and warrants to SkySQL that Customer has the full right and power to enter into and perform this Agreement without the consent of any third party, and that neither Customer’s entry into this Agreement nor SkySQL’s performance hereunder will conflict with any other obligation which Customer may have to any other party. Customer shall defend, indemnify and hold SkySQL and its affiliates, and their respective directors, officers, employees, agents, representatives and contractors, harmless from any third party claims and any related costs and expenses that arise from a violation of the foregoing representation and warranty.

6. Warranty; Disclaimer. During the term, SkySQL shall use its good faith, commercially reasonable efforts to provide Support services in a professional and workmanlike manner and in accordance with this Agreement. Except as expressly set forth in this section 6, to the extent permitted by applicable law, SkySQL makes no representations or warranties whatsoever in connection with the Support services or other services or any work product provided under or in connection with this agreement, all of which are provided on an “AS IS” basis, and SkySQL expressly disclaims, and Customer expressly waives, all warranties, whether express or implied, including (without limitation) warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, and accuracy of informational content. without limiting the generality of the foregoing disclaimer: (a) SkySQL does not warrant results or warrant that any support, supported software, other services or work product will be free from errors, defects or bugs.

7. Limitation of Liability. Notwithstanding anything else herein or otherwise, to the extent permitted by applicable law, neither SkySQL Inc., SkySQL Corporation Ab nor any of their affiliates, licensors, contractors or suppliers, shall be liable or obligated with respect to the Support or other services under any contract, negligence, strict liability or other legal or equitable theory (i) for any amounts in excess of the aggregate of the fees paid to such entity hereunder with respect to the applicable services during the twelve month period prior to the time the cause of action arose; (ii) for any cost of procurement of substitute goods, technology, services or rights; (iii) for any indirect, incidental, special, consequential, exemplary or punitive damages; (iv) for interruption of use or loss or corruption of data, loss of profit or revenue, or business interruption, or other loss arising from the Support or other services; or (v) for any matter beyond its reasonable control.  The Support and other services are not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the product could lead directly to death, personal injury, or significant physical or environmental damage, such as in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the U.S. Federal Food, Drug, and Cosmetic Act.  The parties agree that this section 7 represents a reasonable allocation of risk and that SkySQL would not proceed in the absence of such allocation. Customer acknowledges that it is Customer’s sole responsibility at all times, including specifically during all Support performed by SkySQL, to protect and maintain an up-to-date and restorable backup of any and all Customer data, databases, files, utilities, software and other systems of Customer.

8. Endorsement. SkySQL may use Customer’s name and logo in SkySQL’s public customer listings and marketing materials, and issue press releases referencing Customer’s name.

9. Confidentiality.

9.1 Definition. “Confidential Information” is any information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with Support or other services, and clearly marked as confidential or identified in writing to the Receiving Party as confidential at the time of disclosure.

9.2 Obligations. The Receiving Party shall: (a) not disclose Confidential Information to any third party without Disclosing Party’s prior consent; and (b) not use or reproduce Confidential Information except as required to accomplish the purpose discussed. However, SkySQL may disclose Confidential Information to employees or contractors with a need to know or who have access to SkySQL’s internal web-based systems and tools. Customer acknowledges that SkySQL may store Confidential Information from Customer on SkySQL’s own servers and systems, which may be located in multiple nations. The provisions of this Section shall survive for one (1) year after expiration or termination of the Agreement.

9.3 Exclusions. A Receiving Party shall have no obligation concerning information that: (a) is generally known to the public except as a result of acts by the Receiving Party; (b) is independently developed by the Receiving Party; (c) is disclosed to Receiving Party by a third party with no duty of confidentiality to the Disclosing Party; or (d) is required to be disclosed by lawful process, provided that the Receiving Party provides the Disclosing Party with timely notice to enable the Disclosing Party to seek a protective order or otherwise object. The terms of this Section 9 shall not be construed to limit either party’s right to independently develop or acquire products or services without use of the other party’s Confidential Information. The Disclosing Party acknowledges that the Receiving Party may currently, or in the future, be developing information internally, or receiving information from other parties, that is similar to the Confidential Information, and/or working with a competitor of the other party; either Receiving Party is free to do so, provided that it maintains the confidentiality of the Confidential Information of the Disclosing Party.

9.4 Ownership. All Confidential Information shall remain the property of the Disclosing Party and shall be returned (or, at the Disclosing Party’s option, destroyed) within ten (10) business days upon written request. However, the parties acknowledge that copies of Confidential Information deleted from a Receiving Party’s systems may remain in a backup file until such system is overwritten. Except to the extent of any copyright license described in Section 5.1, no rights or licenses to trademarks, inventions, copyrights or patents are implied or granted under this Agreement.

9.5 Equitable Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that each party may, without waiving any other rights or remedies, seek injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond.

10. Non-Solicitation. Customer agrees that it shall not, at any time during the term of this Agreement and for a period of six months after the termination of this Agreement, whether for its own account or for the account of others, solicit for employment, hire or otherwise engage any of the employees or independent contractors of SkySQL. Notwithstanding the foregoing, nothing in this Agreement shall prevent Customer from hiring any person who responds to a general solicitation not personally directed to such person. In the event Customer hires or engages an employee or contractor of SkySQL in violation of this Section 10, SkySQL shall be entitled to collect liquidated damages from Customer for breach to compensate SkySQL for locating, recruiting, hiring and training a replacement person. SkySQL’s liquidated damages shall be a sum equal to two times the gross annual compensation of the person Customer wrongfully hired or engaged. Gross annual compensation means twelve times the subject employee or contractor’s last full month’s compensation from SkySQL including bonuses and benefits. The parties agree and acknowledge that this amount is a reasonable, liquidated amount and not a penalty.

11. Miscellaneous.

11.1 Interpretation. The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.  

11.2 Assignment. Subject to the following, all of the terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. Customer shall not assign this Agreement or any of its rights or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of SkySQL. Any attempt by Customer to assign this Agreement without SkySQL’s prior written consent shall be null and void. There are no intended third party beneficiaries of this Agreement.

11.3 No Waiver; Limitations. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.

11.4 Governing Law. This Agreement shall be governed in all respects (without regard to any conflict of laws provisions) by the laws of the United States of America and the State of Delaware as such laws are applied to agreements entered into and to be performed entirely within the State of Delaware between residents of Delaware. To the extent exclusion is permissible, the terms of the United Nations Convention on the International Sale of Goods will not apply, even where adopted as part of the domestic law of the country whose laws govern this Agreement. If Customer is located in Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes confirment qu’elles ont exigé que le présent contrat et tous les documents associés soient redigés en anglais.

11.5 Dispute Resolution.

11.5.1 Arbitration In General. Any claim, whether based on contract, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or relating to this Agreement, including the interpretation, performance, breach or termination thereof, shall be exclusively and finally resolved by arbitration. The arbitration shall be conducted in the English language by a single arbitrator, and every person named on all lists of potential arbitrators, shall be a neutral and impartial lawyer with excellent academic and professional credentials (i) who has practiced law for at least ten (10) years, with experience in the field of software development and distribution and intellectual property law, and (ii) who has had experience, and is generally available to serve, as an arbitrator. The arbitrator shall be bound by the provisions of this Agreement and base the decision on applicable law and judicial precedent, shall include in such decision the findings of fact and conclusions of law upon which the decision is based, and shall not grant any remedy or relief that a court could not grant under applicable law. The arbitrator's decision shall be final and binding upon the parties, and shall not be subject to appeal. Notwithstanding the foregoing, either party may enforce any judgment rendered by the arbitrator in any court of competent jurisdiction. In addition, the arbitrator shall have the right to issue equitable relief, including (without limitation) preliminary injunctive relief. Notwithstanding the foregoing, SkySQL shall be entitled to seek injunctive relief in any court of competent jurisdiction, at its discretion.

11.5.2 Arbitration for Customers in USA & Canada. Arbitration shall be conducted in Wilmington, Delaware, USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

11.5.3 Attorneys Fees. For the purposes of any arbitration or court action between the parties relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.

11.6 Consent and Notices. Unless otherwise expressly indicated, any consent or authorization required under this Agreement shall be at the sole discretion of the party from whom such consent is required. Notice shall be deemed to have been received by a party, and shall be effective on the day received. All breach-related notices permitted or required under this Agreement shall be in writing and shall be delivered by recognized postal or courier services who provide delivery confirmation to the other party’s address set forth on the Order Form, or such other address as the parties may subsequently provide in writing. All other notices may be sent by email with notice deemed given upon acknowledgment of receipt by a reply email.

11.7 Export Law Assurances. Customer acknowledges that software code delivered in connection with this Agreement may be subject to export and import control laws, and agrees to comply fully with those laws in connection therewith. Customer agrees that such code is not being, or will not be, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Customer hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.

11.8 U.S. Government Restricted Rights. If software code is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-Department of Defense acquisitions), the government's rights in such code and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose such code or documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement.

11.9 Independent Contractors. The parties enter into this Agreement as, and shall remain, independent contractors with respect to one another. Nothing in this Agreement shall create a partnership, joint venture, agency, franchise, or employment relationship between the parties.

11.10 Force Majeure. SkySQL shall not be liable to Customer by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of Customer, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any other causes beyond the reasonable control of SkySQL.

11.11 Entire Agreement. This Agreement, together with the Order Form and Support Policies, comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior and contemporaneous proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. This Agreement may be amended or modified only in a writing executed by both parties. This Agreement may be executed in counterparts, both of which taken together shall constitute one single Agreement between the parties. This Agreement may be executed via facsimile, and a facsimile copy of either party's signature shall be deemed and be enforceable as an original thereof. All Customer documents, whether signed or unsigned, including purchase orders, shall not be given any effect which is inconsistent with this Agreement unless this provision is specifically referred to and waived by SkySQL in writing. A party’s acceptance of any such document shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized officer of each of the parties.