THESE TERMS OF SERVICE (THE “TERMS“) GOVERN THE ACCESS TO AND/OR USE OF THE CLICKHOUSE CLOUD SERVICE PRIVATE PREVIEW (THE “CLICKHOUSE SERVICE“), AND ARE PART OF A LEGAL CONTRACT BETWEEN CLICKHOUSE, INC. (“CLICKHOUSE”, “WE” OR “US“) AND PERSONS OR ENTITIES (“CUSTOMER” OR “YOU“) SEEKING TO ACCESS AND/OR USE THE CLICKHOUSE SERVICE. THE TERMS, TOGETHER WITH ANY ADDITIONAL TERMS AND CONDITIONS AND/OR POLICIES REFERENCED AND INCORPORATED HEREIN, PROVIDE ALL OF THE TERMS AND CONDITIONS INCLUDED IN A LEGALLY BINDING CONTRACT BETWEEN YOU AND CLICKHOUSE (THE “AGREEMENT“), WHICH BECOMES EFFECTIVE UPON YOUR REGISTRATION FOR AN ACCOUNT ON THE CLICKHOUSE SERVICE. IF YOU ACCESS OR USE THE CLICKHOUSE SERVICE ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO CLICKHOUSE THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS IN THE AGREEMENT, YOU SHOULD NOT ACCESS OR USE THE CLICKHOUSE SERVICE, BECAUSE BY ACCESSING OR USING THE CLICKHOUSE SERVICE, YOU IRREVOCABLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. NOTWITHSTANDING THE FOREGOING, ANY WRITTEN AGREEMENT BETWEEN CLICKHOUSE AND YOU, OR AN ENTITY ON WHOSE BEHALF YOU ARE ACTING, THE TERMS OF WHICH ADDRESS YOUR USE OF THE CLICKHOUSE SERVICE, SHALL GOVERN YOUR USE OF THE CLICKHOUSE SERVICE IN LIEU OF THIS AGREEMENT.
Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
Customer Account. In order to use the ClickHouse Service, you must first register an account (“Account”). By creating the Account, you are responsible for maintaining the security of your Account (including, but not limited to, login credentials and the correct configuration of access control lists), and you are fully responsible for all activities that occur under your Account, and any other actions taken in connection with your Account. You agree to immediately notify ClickHouse of any unauthorized use of your Account, or any other breaches of security, of which you become aware. ClickHouse will have no liability for any acts or omissions on your part, including any damages of any kind incurred as a result of such acts or omissions. Any notifications (including notices, which shall be deemed delivered when sent) regarding the ClickHouse Service will be sent to the ClickHouse Service user interface or to the email address registered with your Account.
Provision of Click House Service and Support Services
Restrictions on use of the ClickHouse Service and Support Services
CUSTOMER CONTENT; DATA PROCESSING
Definition of Content. In connection with Customer’s use of the ClickHouse Service, Customer and/or its end users may enable the ingestion of information, content and data to the ClickHouse Service or may retrieve such information, content and data (collectively, “Content”) from, the ClickHouse Service.
ClickHouse Security. ClickHouse will implement reasonable and appropriate security measures for the ClickHouse Service designed to protect Content against unauthorized access, modification, destruction or disclosure in accordance with the ClickHouse Security Standards. ClickHouse may modify the ClickHouse Security Standards from time to time, but will continue to provide at least the same level of security as is described in the ClickHouse Security Standards as of the Effective Date.
Customer Responsibility for Content. Customer is fully responsible for the content, accuracy and completeness of the Content, and any loss, liabilities or damages resulting from the Content, regardless of the nature of the Content including, without limitation, whether the Content consists of, including but not limited to, data, text, graphics, audio, video, or computer software. Customer is solely responsible for backing up or otherwise making duplicates of Content. Customer represents and warrants to ClickHouse that: (i) Customer owns or has the necessary licenses to provide the Content to ClickHouse, and the provision of the Content to, and use of the Content by, ClickHouse as contemplated herein will not infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; and (ii) the Content does not contain any executable Malware. Customer is solely responsible for verifying that use by its end users of the ClickHouse Service complies with any requirements under applicable law or regulation governing access to or use of the Content.
(a) To the extent Customer submits or communicates any Content relating to an identified or identifiable individual (“Personal Data”) to ClickHouse, or ClickHouse obtains any Personal Data from Customer, ClickHouse agrees that it (and/or its contractors) will not knowingly collect, access, use, store, disclose, transfer or otherwise process (collectively, “Process” or “Processing”) any such Personal Data except (i) for the purposes of this Agreement, including without limitation, to implement and deliver the ClickHouse Service and its features and associated services, provide customer support, and help Customer prevent or address service or technical problems; (ii) as expressly permitted by Customer in this Agreement or otherwise; or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the Processing of Personal Data of any individual whose Personal Data is Processed by Customer (including, without limitation, by disclosing the Personal Data to ClickHouse) in connection with Customer’s use of or access to the ClickHouse Service.
(b) Customer will not, and will not permit its authorized users to, submit Prohibited Data for processing by the ClickHouse Service. Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) classified information (i.e., information given a security classification by a government body and protected against unauthorized disclosure under applicable law) or data subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State; (c) special categories of data as defined in the GDPR; and (d) other similar categories of sensitive information as set forth in the applicable data protection laws.
License to ClickHouse. By submitting Content to ClickHouse, Customer hereby grants ClickHouse a sublicensable, worldwide, royalty-free, and non-exclusive right to reproduce, modify, adapt and publish the Content solely for the purpose of enabling ClickHouse to provide Customer with the ClickHouse Service and Support Services. If Customer wishes to delete Content from Customer’s Account, ClickHouse will use reasonable efforts to remove it, but Customer acknowledges that backups, caching or references to the Content may not be made immediately unavailable.
Content Retrieval. Customer is solely responsible for deleting or retrieving Content from the ClickHouse Service prior to termination of the applicable Subscription and/or Customer’s Account for any reason.
Third Party Content. Furthermore, while ClickHouse reserves the right, it has no obligation to monitor all of the content, data or information uploaded on the ClickHouse Service by third parties (“Third Party Content”), and is not responsible for any such content, data or information. ClickHouse does not represent or imply that such Third-Party Content is accurate, useful or non-harmful. Customer must take all precautions necessary to protect itself, and its computer systems from viruses, worms, Trojan horses, and other harmful or destructive materials. ClickHouse disclaims any responsibility for any harm resulting from any Third-Party Content.
DISCLAIMER OF WARRANTIES
LIMITATION OF LIABILITY
TERM AND TERMINATION
Anti-Corruption. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti-Corruption Laws“). Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this Agreement.
Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets. Any assignment in violation of this Section shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
Attorneys’ Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, “prevailing party” includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.
California Consumer Privacy Act (CCPA). ClickHouse is a “Service Provider” as such term is defined under §1798.140(v) of the CCPA. As such ClickHouse shall not retain, use or disclose any personal information (as defined in the CCPA) received from Customer during the Term of this Agreement for any purpose other than the specific purpose of providing the ClickHouse Services and Services specified in this Agreement or for such other business purpose as is specified in this Agreement.
Customer Identification. Unless ClickHouse has first obtained Customer’s prior written consent, ClickHouse shall not identify Customer as a user of the ClickHouse Services , on its website, through a press release issued by ClickHouse and in other promotional materials.
Export Control. Customer acknowledges that the ClickHouse Services, Support Services, Services, and technologies related thereto are subject to the Export Administration Regulations (“EAR“) (15 C.F.R. Parts 730-774 (2010)) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control. Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any ClickHouse goods, software or technology or disclose any ClickHouse software or technology to any person contrary to such laws or regulations. Customer acknowledges that remote access to the ClickHouse Services may in certain circumstances be considered a re-export of such ClickHouse Services, and accordingly, may not be granted in contravention of U.S. export control laws and regulations.
Feedback. Customer, Customer’s Affiliates, and their respective agents, may volunteer feedback to ClickHouse, and/or its Affiliates, about the ClickHouse Services and/or Services (“Feedback”). ClickHouse and its Affiliates shall be irrevocably entitled to use that Feedback, for any purpose and without any duty to account. provided that, in doing so, they may not breach their obligations of confidentiality under Section 4 of this Agreement.
Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
Future Features and Functions. Customer understands and agrees that any features or functions of ClickHouse Services referenced on any ClickHouse website, or in any presentations, press releases or public statements, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for ClickHouse’s ClickHouse Services remains at ClickHouse’s sole discretion. Accordingly, Customer agrees that it is purchasing ClickHouse Services based solely upon features and functions that are currently available as of the Effective Date, and not in expectation of any future feature or function.
Governing Law, Jurisdiction and Venue.
(a) Customers in California. If Customer is located in California, this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.
(b) Customers Outside of California. If Customer is located anywhere other than California, this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.
(c) All Customers. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth in (a) or (b) above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
(d) Equitable Relief. A breach or threatened breach, by either party of Section 4 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.
Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered by e-mail. Notices to ClickHouse shall be sent to [email protected]. Notices to Customer shall be sent to the e-mail address provided by at the time of registration for an Account, as the same may be updated by Customer.
Relationship of the Parties. The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.
Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
Entire Agreement; Amendment. This Agreement and the Support Services Policy and the DPA where applicable, each of which is hereby incorporated herein by this reference, constitutes the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Execution of a scanned copy will have the same force and effect as execution of an original, and a scanned signature will be deemed an original and valid signature. In the event of any conflict between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) an applicable DPA, (ii) this Agreement, and (iii) the Support Services Policy. By entering into this Agreement, whether prior to or following receipt of any Customer purchase order or similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and ClickHouse’s performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement, nor (iii) an agreement to amend this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of ClickHouse and Customer by their duly authorized representatives. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations. Therefore, the rule of construction that any ambiguity shall apply against the drafter is not applicable and will not apply to this Agreement. Any ambiguity shall be reasonably construed as to its fair meaning and not strictly for or against one party regardless of who authored the ambiguous language.