Master Software License, Support and Services Agreement

February 01, 2019

Master Software License, Support and Services Agreement

This Master Software License, Support and Services Agreement (this "Agreement") is made and entered by and between PlanetScale, Inc ("PlanetScale") and Customer (each a "Party" and collectively, "the Parties"). Capitalized terms shall have the meaning defined herein and in the Exhibits hereto.

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. DEFINITIONS.

    1.1. "Authorized Period" means the time period specified in the applicable Order Form for Customer's licensed use of the Licensed Software

    1.2. "Authorized Users" means the number of Customer's employees and contractors authorized to use the Licensed Software hereunder, as specified in the applicable Order Form.

    1.3. "Confidential Information" means any and all non-public, confidential and proprietary information, furnished by one party to this Agreement (the "Disclosing Party") or any of its Representatives to the other party to this Agreement (the "Receiving Party") or any of its Representatives, whether orally, in writing, or in other tangible form. For the avoidance of doubt, PlanetScale's Confidential Information shall expressly include the terms of this Agreement, the Licensed Software and the Documentation.

    1.4. "Derivative Work" means a work of authorship or other development that is based on, derived from or extends, replaces, emulates, substitutes for, or exposes to third parties the functionalities of the Licensed Software or the Documentation, and includes, without limitation, any "derivative work" as defined in the United States Copyright Act, 17 U.S.C. Section 101.

    1.5. "Documentation" means the product documentation delivered by PlanetScale to Customer.

    1.6. "Intellectual Property Right" means all patent, copyright, trade secret, trademark or other intellectual property rights.

    1.7. "Licensed Software" means the PlanetScale proprietary software product(s) indicated on an Order Form that will be licensed to Customer as Licensed Software under this Agreement, excluding any open source license software.

    1.8. "M&S" means the maintenance and support services provided by PlanetScale for the Licensed Software licensed under this Agreement.

    1.9. "Order Form" means an ordering document governed by this Agreement that has been executed by PlanetScale and Customer and which provides for access to the Licensed Software, the delivery of Professional Services and/or the provision of M&S, among other things.

    1.10. "Professional Services" means fee-based setup, implementation, configuration, consulting, training and other services (other than M&S) that PlanetScale provides pursuant to an Order Form and/or SOW.

    1.11. "Representatives" means, as to any person, such person's affiliates and its or their directors, officers, employees, agents, and advisors (including, without limitation, financial advisors, counsel and accountants) bound by a written agreement or other legal obligation to maintain the confidentiality of the Confidential Information disclosed to them as required by the terms of Section 11.

    1.12. "Services" means Professional Services and/or M&S purchased by Customer pursuant to an Order Form.

    1.13. "Statement of Work" or "SOW" means a document that accompanies an Order Form which details the Professional Services purchased by Customer.

  2. LICENSES.

    2.1. License. During the Authorized Period and subject to the terms and conditions of this Agreement and the applicable Order Form, including receipt of all applicable fees by PlanetScale, PlanetScale hereby grants to Customer, and Customer hereby accepts from PlanetScale, a limited, non-exclusive, non-transferable and non-sublicensable license to use the Licensed Software and Documentation, in a manner consistent with the specifications and limitations set forth in this Agreement and the Documentation, by the Authorized Users during the Authorized Period.

    2.2. Restrictions on Licenses. In addition to the restrictions set forth above, Customer agrees that, except as otherwise expressly provided by this Agreement, it shall not: (a) except as permitted under Section 13.3, sublicense, assign, delegate, rent, lease, sell, timeshare or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 2.1, and any attempt to make any such sublicense, assignment, delegation or other transfer by Customer shall be void and of no effect; (b) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Licensed Software, except to the extent required to be permitted under applicable law; (c) modify, translate or create Derivative Works of the Licensed Software without the prior written consent of PlanetScale; (d) remove any copyright, trademark, patent or other proprietary notice that appears on the Licensed Software, Documentation or copies thereof; or (e) combine or distribute any of the Licensed Software with any software that is licensed under terms that seek to require that any of the Licensed Software (or any associated Intellectual Property Rights) be provided in source code form (e.g., as "open source"), licensed to others to allow the creation or distribution of Derivative Works, or distributed without charge. For the avoidance of doubt, the restrictions in this Section 2.2 are not intended to prohibit Customer from using third party managed services providers to manage the Licensed Software either at a Customer's site or such third party's site solely on behalf and for the benefit of Customer.

  3. SERVICES.

    3.1. Scope. PlanetScale will perform the Services set forth in an Order Form and/or SOW executed by the Parties, which shall include and/or specify a description of the Services to be provided to Customer and the applicable fees and payment terms. If either Customer or PlanetScale request a change in the scope of Professional Services, any agreed-upon changes, including changes in fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a "Change Order").

    3.2. Customer Cooperation; License. Customer acknowledges that PlanetScale's ability to timely deliver the Services is dependent upon Customer's ongoing cooperation and assistance (including, if requested by PlanetScale, Customer's use of a particular version of the Licensed Software). Accordingly, Customer will supply to PlanetScale, on a timely basis, all information, data, materials, and assistance reasonably necessary for PlanetScale to perform the Services, including database query logs, database schema, a description of hardware in use, and any additional information, material, or assistance identified in an Order Form or Statement of Work. Accordingly, Customer hereby grants to PlanetScale a non-exclusive, world-wide, sublicensable, license for the Term to copy, distribute, modify and otherwise use such information, data, and materials, solely for the purpose of performing the Services. PlanetScale's period of performance shall be equitably extended to account for any delays resulting from Customer's failure to fully comply with the foregoing.

    3.3. Staffing. PlanetScale shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Services under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services. PlanetScale will be responsible for the acts or omissions of its employee and contractor personnel and any delays caused by the reassignment or replacement thereof.

    3.4. Expense Reimbursements. Customer will reimburse PlanetScale for reasonable travel and other expenses incurred in connection with performing the Services, provided that Customer approves such expenses before they are incurred.

  4. OWNERSHIP.

    The Licensed Software and Documentation are licensed and not sold to Customer. Except for the license expressly rights granted to Customer under Section 2.1, PlanetScale and its licensors own and retain all right, title and interest in the Licensed Software and Documentation, any design changes, improvements, enhancements, Derivative Works, or modifications thereof or thereto, and any related and/or associated Intellectual Property Rights, whether developed by PlanetScale or by Customer or its employees or independent contractors. To the extent that PlanetScale modifies or creates any work related to the Vitess open source software project in the course of providing Services to Customer, such modification and/or works shall be owned exclusively by PlanetScale, and PlanetScale shall have the right to commit such modification and/or work to the Vitess open source project. Customer shall cooperate with PlanetScale in good faith to the extent necessary for PlanetScale to arrange or obtain the assignment to, and registration on behalf of, PlanetScale of all Intellectual Property Rights in any design changes, improvements, enhancements, Derivative Works, or modifications to the Licensed Software or Documentation.

  5. SOFTWARE MAINTENANCE & SUPPORT SERVICES.

    Subject to the timely payment of the Licensed Software and M&S Fees (which fees are described in the applicable Order Form), PlanetScale shall provide the M&S for such Licensed Software in accordance with Exhibit A.

  6. REPORTING; PAYMENTS.

    6.1. Fees; Payment Terms. Customer shall pay to PlanetScale the fees set forth in applicable Order Form (collectively, the "Fees"). Payment obligations are non-cancelable and Fees paid are non-refundable unless this Agreement or an applicable Order Form is terminated by Customer for cause pursuant to Section 8.1, in which case any prepaid, unearned Fees for the terminated portion of the Authorized Period will be refunded to Customer. All amounts payable to PlanetScale under this Agreement shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Overdue Fees shall accrue late interest charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid

    6.2. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, "Taxes") arising from PlanetScale's provision of the Services hereunder, except any taxes assessed upon PlanetScale's net income. If PlanetScale is required to directly pay Taxes related to Customer's use or receipt of any Services, Customer agrees to promptly reimburse PlanetScale for any amounts paid by PlanetScale. All amounts payable to PlanetScale under this Agreement shall be without set-off and without deduction of any Taxes.

    6.3. Reporting. Within two (2) business days following the end of each calendar month, Customer shall provide PlanetScale with all information reasonably requested by PlanetScale that is related to its usage and hosting of its databases under management by Vitess, including invoices issued by Customer's hosting provider for hardware costs. In the event that Customer fails to timely fulfill its reporting obligations set forth in this Section 6.3, Customer's time to pay invoices pursuant to Section 6.3 shall be reduced on a day-for-day basis to account for such delay.

    6.4. Audit Rights. PlanetScale may inspect the books, records and systems of Provider relating to the subject matter of this Agreement (including those reasonably necessary to verify the basis for PlanetScale's fees), provided that any such audit is no more often than two times per year. Such audits shall be scheduled within 10 days following delivery of notice during normal business hours and shall be conducted in a manner that does not unreasonably interfere with Customer's business operations. If the audit reveals that Customer underpaid PlanetScale by more than 5% of the amounts due hereunder, the reasonable cost of the audit shall be paid by Customer, in addition to any amounts due.

  7. TERM.

    The term of this Agreement shall commence on the Effective Date and remain in effect until terminated in accordance with Section 8.1 (the "Term"). At the expiration of each Authorized Period, the applicable Order Form will automatically renew for an additional one (1) year with respect to the Licensed Software and the Services, unless either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal. All payments due during a renewal term shall be on the same schedule as set forth in the renewing Order Form. PlanetScale will provide Customer with no less than sixty (60) days prior written notice of any pricing changes applicable to a renewal term.

  8. TERMINATION.

    8.1. Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party (i) if the other Party is in material breach of this Agreement and has not cured such breach within thirty (30) calendar days after receiving written notice of such breach or if the other Party is in material breach and such breach is not curable; (ii) if the other Party (x) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (y) has effected a compulsory or voluntary liquidation or dissolution, or (z) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction; or (iii) if there are no Order Forms in effect for more than sixty (60) days, continuously.

    8.2. Effect of Termination. Upon any expiration or termination of this Agreement, the license granted in Section 2 shall terminate immediately, and Customer shall (i) immediately cease use of all Licensed Software and Documentation, (ii) destroy all Licensed Software and related Documentation and other materials and information provided by PlanetScale and any copies thereof made by Customer, and (iii) Customer shall certify its compliance with the same to PlanetScale in writing. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated due to Customer's breach, Customer shall pay to PlanetScale all unpaid Fees set forth in the then-outstanding Order Forms.

  9. WARRANTY.

    9.1. PlanetScale Warranty. The Licensed Software, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable Documentation, will perform, in all material respects, the functions described in the Documentation without any Errors (as such term is defined in Exhibit A) for a period of ninety (90) days from the date the Licensed Software was first delivered to Customer (such period, the "Warranty Period"). PlanetScale further warrants it shall perform the services in a professional and workmanlike manner.

    9.2. Exclusive Remedies. Customer shall report to PlanetScale, pursuant to the notice provision of this Agreement, any breach of the warranties set forth in this Section 9 during the relevant Warranty Period. In the event of a breach of warranty by PlanetScale under this Agreement, Customer's sole and exclusive remedy, and PlanetScale's entire liability, shall be prompt correction of Errors or, if such correction is not possible, replacement of the Licensed Software.

    9.3. Limitations of Warranties. No warranty or indemnification shall apply where the defect or error in the Licensed Software is caused by: (a) any use of the Licensed Software which is not in conformity with the provisions of this Agreement or in substantial compliance with the Documentation; (b) any repair, modification or installation of the Licensed Software not made or expressly authorized by PlanetScale; or (c) the use or attempted use of software other than the most current version supported by PlanetScale and made available to Customer under the terms of this Agreement. Replacement or repair of Licensed Software shall not extend its warranty period beyond the original warranty expiration date.

    9.4. Disclaimer of Warranty. PlanetScale does not represent or warrant that the operation of the Licensed Software (or any portion thereof) will be uninterrupted or error free, or that the Licensed Software (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by PlanetScale, except as expressly specified in the applicable Documentation. PlanetScale does not provide assistance on the general use of the Licensed Software or problem diagnosis if Customer is not current in its payment obligations. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, PLANETSCALE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE LICENSED SOFTWARE OR SERVICES, OR THEIR CONDITION. PLANETSCALE IS FURNISHING THE WARRANTIES SET FORTH IN SECTION 9.1 IN LIEU OF, AND PLANETSCALE HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

  10. LIMITATION OF LIABILITY.

    10.1. Exclusion of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, [[]{#OLELINK2 .anchor}]{#OLELINK1 .anchor}A BREACH OF SECTION 11 BY EITHER PARTY, PLANETSCALE'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, OR CUSTOMER'S BREACH OF SECTION 2, IN NO EVENT SHALL PLANETSCALE OR CUSTOMER BE LIABLE IN AN ACTION UNDER TORT, CONTRACT, WARRANTY OR OTHERWISE FOR ANY: (a) SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE/EXEMPLARY DAMAGES OR LOSSES ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, THE OPERATION OR USE OF THE LICENSED SOFTWARE, OR THE SERVICES PERFORMED HEREUNDER, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES OR LOSSES ARISING FROM (i) LOSS OF BUSINESS, PROFIT OR REVENUES, (ii) LOSS OF DATA, PROGRAMMING OR CONTENT, (iii) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, (iv) SUBSTITUTE PROCUREMENT, OR (v) DAMAGE TO EQUIPMENT, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE; OR (b) DAMAGES OR LOSSES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY A PARTY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND SUCH PARTY'S REASONABLE CONTROL.

    10.2. Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND EXCEPT FOR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A BREACH OF SECTION 11 BY EITHER PARTY, PLANETSCALE'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, OR CUSTOMER'S BREACH OF SECTION 2, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES, LOSSES OR LIABILITY OF ANY KIND EXCEED, EITHER CUMULATIVELY OR IN THE AGGREGATE, THE FEES PAID OR PAYABLE BY CUSTOMER TO PLANETSCALE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

  11. CONFIDENTIALITY.

    Unless otherwise agreed to in writing by the Disclosing Party, each Receiving Party agrees (a) to keep all Confidential Information in strict confidence and not to disclose or reveal any Confidential Information to any person (other than to Receiving Party's Representatives who (i) are actively and directly involved in providing or receiving products or services under this Agreement, and (ii) have a need to know the Confidential Information), and (b) not to use Confidential Information for any purpose other than in connection with fulfilling obligations or exercising rights under this Agreement. The Receiving Party shall treat all Confidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, as it accords its own Confidential Information. The parties agree to cause their Representatives who receive Confidential Information to adhere to confidentiality obligations substantially similar to those set forth herein. Notwithstanding the above, the obligations of the parties set forth herein shall not apply to any information that: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party or any of its Representatives; (ii) was known to the Receiving Party free of any obligation of confidentiality before or after the time it was communicated to the Receiving Party by the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; (iv) is disclosed with the prior written approval of the Disclosing Party; (v) is or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party or any of its Representatives. If any Confidential Information is required to be disclosed pursuant to an order or requirement of a court, administrative agency or other governmental body, the Receiving Party shall provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure, and shall use reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party's expense) to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the Receiving Party and its Representatives shall use reasonable efforts to disclose only that portion of the Confidential Information that is legally required to be disclosed. Any materials or documents which have been furnished to the Receiving Party from the Disclosing Party shall be promptly returned or destroyed, at the option of the Disclosing Party, by the Receiving Party, within ten (10) days after a written notice is made by the Disclosing Party requesting such return or destruction. Receiving Party's confidentiality obligations shall survive and remain in full force and effect for a period of five (5) years from the termination or expiration of this Agreement; provided, however, Customer's confidentiality obligations with respect to any software code (in source code and object code forms) shall survive indefinitely.

  12. INDEMNIFICATION.

    12.1. By PlanetScale: PlanetScale will indemnify, defend and hold harmless Customer and its employees (collectively, the "Indemnified Parties") from and against any and all losses arising from claims by a third party that the Licensed Software when used by Customer as authorized in this Agreement (i) directly infringes a third party copyright or patent; or (ii) misappropriates, or unlawfully uses a third-party's trade secrets (collectively, "Infringement Claims"). Should any Licensed Software become, or in PlanetScale's opinion be likely to become, the subject of any Infringement Claim, then Customer will permit PlanetScale, at PlanetScale's option and expense: to procure for Customer the right to continue using the Licensed Software; to replace or modify the Licensed Software or portion thereof to be non-infringing; or to take any other action reasonably deemed advisable by PlanetScale related to such alleged infringement. In the event none of these remedies is commercially reasonable, PlanetScale may, in its sole discretion, terminate this Agreement and refund to Customer prepaid Fees for the terminated portion of the Authorized Period. The provisions of this Section 12 constitute the entire understanding of the parties regarding PlanetScale's liability for Infringement Claims (including related claims for breach of warranty if any) and sole obligation to indemnify and reimburse any Indemnified Party.

    12.2. Notice of Claim and Indemnity Procedure. In the event of a claim for which an Indemnified Party will seek indemnity or reimbursement under this Section 12, and as a condition of the indemnity benefits in Section 12, such party shall notify PlanetScale in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for PlanetScale to evaluate such claim to the extent that the Indemnified Party is in possession or has knowledge of such information. As a condition of the indemnity benefits in Section 12, PlanetScale shall have the right to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by PlanetScale of the defense of a claim with counsel of its choosing, PlanetScale will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party or any settlement entered into by the Indemnified Parties without PlanetScale's express written consent. The Indemnified Party(is) shall cooperate with PlanetScale in the defense of any such claim.

    12.3. Exclusions. Notwithstanding any other provision in this Agreement, PlanetScale shall have no obligation to indemnify or reimburse any Indemnified Party with respect to any Infringement Claim to the extent arising from (i) use of any Licensed Software in combination with any products or services other than those provided or approved by PlanetScale to Customer under this Agreement; (ii) modification of the Licensed Software after delivery by PlanetScale to Customer, except for such modifications performed by or expressly approved in writing by PlanetScale; (iii) use of any version of the Licensed Software other than the most current version made available by PlanetScale to Customer hereunder; (iv) the failure of any Indemnified Party to use any Updates, corrections or enhancements to the Licensed Software that are made available by PlanetScale to Customer hereunder; or (v) detailed, non-discretionary designs or specifications provided to PlanetScale by any Indemnified Party that necessarily caused such Infringement Claim. Customer agrees to reimburse PlanetScale for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.

  13. MISCELLANEOUS.

    13.1. Notices. All notices, summons and communications related to this Agreement and sent by either party hereto to the other shall be written in English and given by registered mail, internationally recognized overnight courier or by facsimile also confirmed by registered or certified mail, postage prepaid. Notices to PlanetScale shall be addressed to the person accepting this Agreement and the applicable Order Form, with a copy to legal@planetscale.com. Notices to Customer are to be addressed to the person accepting this Agreement and the applicable Order Form. Either Party may change its address for notice by giving notice of such address change in the manner provided herein.

    13.2. Logo Use Rights. PlanetScale may identify Customer as a user of the Licensed Software and/or Services by referencing Customer's name and logo, provided that such reference is consistent with Customer's generally applicable branding guidelines and that PlanetScale will cease making such references after receiving written notice from Customer to do so.

    13.3. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

    13.4. Survival. Sections 1, 2.2, 3.4, 4, 6, 8.2, 9.4, 10, 11, 13 shall survive the expiration or termination of this Agreement, or any default under or rejection in bankruptcy of this Agreement by Customer.

    13.5. Governing Law; Jurisdiction. This Agreement and all matters relating to this Agreement shall be construed in accordance with and controlled by the laws of the State of California, without reference to its conflict of law principles. The parties agree to submit to the exclusive jurisdiction and venue of the courts located in San Francisco, California and hereby waive any objections to the jurisdiction and venue of such courts.

    13.6. No Agency; Independent Contractors. In connection with this Agreement each party is an independent contractor and as such will not have any authority to bind or commit the other. Furthermore, neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.

    13.7. Export Control. The Licensed Software, the Documentation and all other technical information delivered hereunder (collectively, "Technical Data") include technology and software and are subject to the export control laws and regulations of the United States ("U.S."). Customer agrees not to export, re-export or otherwise release any Licensed Software outside of the U.S. and to abide by such laws and regulations as to which PlanetScale may notify Customer from time to time. Customer further acknowledges and agrees that the Technical Data may also be subject to the export laws and regulations of the country in which the products are received, and that Customer will abide by such laws and regulations.

    13.8. Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Licensed Software and Documentation, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless PlanetScale from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys' fees) incurred by PlanetScale arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.

    13.9. Force Majeure. Neither party shall be liable for failure to perform any of its obligations under this Agreement (except payment obligations) during any period in which such party cannot perform due to fire, earthquake, flood, any other natural disaster, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, war, embargo, riot, civil disturbance, act of public enemy, act of nature, the intervention of any government authority, any failure or delay of any transportation, power, or for any other similar cause beyond either party's control. In the case of failure to perform, the failing party shall promptly notify the other party in writing of the reason for and the likely duration of the failure. The performance of the failing party's obligations shall be suspended during the period that the cause persists, and each party shall use commercially reasonable efforts to avoid the effect of that cause.

    13.10. Severability and Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

    13.11. Entire Agreement; Amendment. This Agreement and all Exhibits referred to herein embody the entire understanding of the parties with respect to the subject matter hereof and shall supersede all previous communications, representations or understandings, either oral or written, between the parties relating to the subject matter hereof. It shall not be modified except by a written agreement signed on behalf of Customer and PlanetScale by their respective duly authorized representatives. Customer acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein, and for its own purposes and not for the benefit of any third party. In the event of any inconsistency between the terms of this Agreement and the terms of the Exhibit, the terms of the Exhibit shall govern. In the event of any inconsistency between this Agreement (including the Exhibits) and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not form any part of this Agreement, and all such terms or conditions are null and void

    13.12. Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.


Exhibit A

MAINTENANCE AND SUPPORT FOR THE LICENSED SOFTWARE

  1. ACCESS TO PLANETSCALE. PlanetScale will provide Customer with telephone and email support, Monday through Friday, from 8:00 a.m. to 6:00 p.m. Pacific Time (excluding designated PlanetScale company holidays).

  2. UPDATES. For so long as Customer is timely in the performance of its obligations under this Agreement and these M&S terms, and has paid to PlanetScale the corresponding Software License and M&S Fees, PlanetScale shall provide Customer with access to Updates of the Licensed Software during the Authorized Term.

  3. REQUEST FOR PROBLEM RESOLUTION. All requests by Customer for Error resolution will be logged after which PlanetScale will perform an initial diagnosis and determine as far as reasonably practical the source of any problem which may have led to the support request. All response and resolution times shall commence at the beginning of the next business day for requests for problem resolution that are logged during non-business hours.

  4. BUG FIXING. PlanetScale will investigate incident reports concerning suspected problems with Licensed Software provided that (a) Customer sends PlanetScale a written report, which includes evidence of the suspected Error, and (b) the incident can be reproduced or reasonably confirmed by PlanetScale. PlanetScale will use commercially reasonable efforts to promptly correct the Error or provide a workaround to permit Customer to use the Licensed Software substantially in conformance with the applicable Documentation. Should an Error not be resolved quickly or for bugs that require further investigation, the procedures set forth in Section 5 of this Exhibit A shall be invoked to engage the appropriate resources.

  5. ESCALATION PROCEDURES. With regard to Errors submitted to Escalation Procedures, an action plan will be developed by the PlanetScale support team and communicated to Customer. When an escalated Error has been resolved, the request for assistance will be considered closed upon the mutual agreement of the parties, such agreement not to be unreasonably withheld, delayed or conditioned. An Error will not be considered resolved until one of the following activities has been completed:

    a. a resolution to the problem is obtained to Customer's reasonable satisfaction;

    b. a computer software code change in the form of a patch or a new revision that corrects the problem without causing additional problems has been delivered to Customer, successfully installed and is working;

    c. a short term workaround is delivered and accepted by Customer, though such acceptance shall not absolve PlanetScale from any obligation to provide a long term solution if required; or

    d. an engineering commitment is made, upon Customer's agreement, to correct the problem in a future release of the Licensed Software.

  6. EXCLUDED SERVICES. PlanetScale shall not be obligated to fix any error or problem:

    a. where the Licensed Software is not used for its intended purpose; or

    b. where the Licensed Software has been altered, damaged, modified or incorporated into other software in a manner not approved by PlanetScale; or

    c. where the Licensed Software is a release that is no longer supported by PlanetScale; or

    d. which is caused by Customer's or a third party's software or equipment or by Customer's negligence, abuse, misapplication, or use of the Licensed Software other than as specified in the Documentation; or

    e. where fixing the problem would require changes to Customer's hardware or an Upgrade.

    If PlanetScale determines that it has no obligation to fix the reported incident for one of the reasons stated above, the parties may enter into a separate Order Form and/or Statement of Work authorizing PlanetScale to provide additional support services at PlanetScale's then-current professional services rates plus expenses.

  7. DEFINITIONS.

    a. "Error" means an incident that investigation reveals is caused by the Licensed Software's failure to perform materially in accordance with the specifications set forth in the Documentation for such Licensed Software. An incident will not be classified as an Error if (a) the relevant Licensed Software is not used for its intended purpose; (b) the incident is caused by Customer's or a third party's software or equipment (except to the extent PlanetScale has incorporated or packaged such third party's software or equipment in or with the Licensed Software); or (c) the version of the Licensed Software on which the Error has purportedly occurred is not the most current version of such Licensed Software made available to Customer under this Agreement.

    b. "New Version" means a release of a Licensed Software product or component thereof that implements a fundamental change in the software system philosophy and/or the software architecture, as determined by PlanetScale in its sole discretion, typically identified by a change in the digit to the left of the decimal point of the product numbering convention (x.x) (e.g., Product 3.0 to Product 4.0).

    c. "Update" means a change to the current version of a Licensed Software product or a component thereof that does not constitute a New Version, as determined by PlanetScale in its sole discretion. An Update may include, without limitation, bug fixes, enhancements to the capability of an already partially supported feature or changes in the number, type, and/or specification of the supported platform(s), and is typically identified by a change in the digit to the right of the decimal point of the product numbering convention (x.x) (e.g., Product 3.1 to Product 3.2).

    d. "Upgrade" means a migration by an existing Customer to a New Version.