This ClickHouse Subscription Agreement, including all referenced URLs, which are incorporated herein by reference (collectively, this “Agreement”), is entered into as of the date on which an applicable Order Form is fully executed (“Effective Date”), by and between the ClickHouse entity (“ClickHouse”) set forth on such Order Form, and the entity identified thereon as the “Customer” (“Customer”).
1. DEFINITIONS
Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
1.1 “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
1.2 “Order Form” means an ordering document provided by ClickHouse pursuant to which Customer purchases Subscriptions under this Agreement.
1.3 “Qualifying PO” means a purchase order issued by customer for the purpose of purchasing a Subscription, which (i) references the number of an applicable Order Form provided to Customer by ClickHouse and (ii) clearly states the purchase order is subject to the terms and conditions of this Agreement.
1.4 “Software” means the ClickHouse software of the same name that is licensed for use under the Apache 2.0 license.
1.5 “Subscription” means Customer’s right, for a fixed period of time, to receive Support Services, as set forth in the applicable Order Form.
1.6 “Subscription Term” means the period of time for which a Subscription is valid, as further described in Section 7.1 of this Agreement.
1.7 “Support Services” means maintenance and support services for the Software, as more fully described in the Support Services Policy.
1.8 “Support Services Policy” means ClickHouse’s support services policy as further described at https://clickhouse.com/support/policy/. ClickHouse reserves the right to reasonably modify the Support Services Policy during a Subscription Term, provided however, ClickHouse shall not materially diminish the level of Support Services during a Subscription Term. The effective date of each version of the Support Services Policy will be stated thereon, and ClickHouse agrees to archive copies of each version, and make the same available to Customer upon written request (e-mail sufficient). The parties agree that the Support Services Policy is hereby incorporated into these terms and conditions by this reference.
2. AGREEMENT SCOPE AND PERFORMANCE OF SUPPORT SERVICES
2.1 Agreement Scope. This Agreement includes terms and conditions applicable to Subscriptions for Support Services purchased under each Order Form entered into by the parties under Section 2.2 below, which Support Services may be used by Customer solely for Internal use and in connection with the use case(s) set forth on the applicable Order Form.
2.2 Order for Support Services Subscriptions. Orders for Subscriptions may be placed by Customer through (1) the execution of Order Forms with ClickHouse or (2) issuance by Customer of a Qualifying PO, which will be deemed to constitute, for the purposes of this Agreement, the execution by Customer of the referenced Order Form.
2.3 Affiliates. The parties agree that their respective Affiliates may also conduct business under this Agreement by entering into Order Forms, which in some cases may be subject to such additional and/or alternative terms and conditions to those contained in this Agreement as may be mutually agreed in the Order Form or an attachment thereto, as applicable. Accordingly, where Affiliates of the parties conduct business hereunder, references to Customer herein shall include any applicable Customer Affiliate, and references to ClickHouse herein shall include any applicable ClickHouse Affiliate. The parties agree that where either of them or one of their Affiliates enters into an Order Form with an Affiliate of the other party, that such Affiliate shall be solely responsible for performing all of its obligations under this Agreement in connection with such Order Form.
2.4 Performance of Support Services. Subject to Customer’s payment of all fees (as set forth in an applicable Order Form), ClickHouse will provide Customer with Support Services for the Software during an applicable Subscription Term in accordance with this Agreement and the Support Services Policy. Customer will reasonably cooperate with ClickHouse in connection with the Support Services, including, without limitation, by providing ClickHouse reasonable remote access to its installations, server cloud (or hosting provider), Software and equipment in connection therewith. Further, Customer will designate appropriately skilled personnel to serve as ClickHouse’s central contacts in connection with the use, operation and support of the Software. Customer understands that ClickHouse’s performance of Support Services is dependent in part on Customer’s cooperation, actions, and performance. ClickHouse shall not be responsible for any delays or interruptions in its performance of Support Services, or any claims arising therefrom, due to Customer’s lack of cooperation or acts or omissions. ClickHouse may use its Affiliates or subcontractors to provide Support Services to Customer, provided that ClickHouse remains responsible to Customer for performance.
3. PAYMENT AND TAXES
3.1 Payment. ClickHouse will invoice Customer for the fees due under each Order Form or otherwise under this Agreement, and Customer will pay such fees within thirty (30) days after receipt of an applicable invoice. All invoices will be paid in the currency set forth on the applicable Order Form. Payments will be made without right of set-off or chargeback. Except as otherwise expressly provided in this Agreement, any and all payments made by Customer pursuant to this Agreement or any Order Form are non-refundable, and all commitments to make any payments hereunder or under any Order Form are non-cancellable.
3.2 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value added and excise taxes levied upon the delivery or use of the taxable components, if any, of any Subscription purchased by Customer under this Agreement (collectively, “Taxes”). Taxes do not include any taxes on the net income of ClickHouse or any of its Affiliates. Unless Customer provides ClickHouse a valid state sales/use/excise tax exemption certificate or Direct Pay Permit, and provided that ClickHouse separately states any such taxes in the applicable invoice, Customer will pay and be solely responsible for all Taxes. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of Support Services under this Agreement, Customer shall increase the sum paid to ClickHouse by an amount necessary for the total payment to ClickHouse equal to the amount originally invoiced.
4. CONFIDENTIAL INFORMATION
4.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature (“Confidential Information”). Confidential Information includes materials and all communications concerning ClickHouse’s or Customer’s business and marketing strategies, including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with the Products, anything provided by either party to the other in connection with the Products and/or Support Services provided under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party.
4.2 Non-use and Non-disclosure. The parties shall at all times, both during the Term and thereafter keep in trust and confidence all Confidential Information of the other party using commercially reasonable care (but in no event less than the same degree of care that the receiving party uses to protect its own Confidential Information) and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than to Affiliates or as necessary to carry out its duties under this Agreement without the other party’s prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.
4.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.
4.4 Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, referral partners involved in an applicable transaction, accountants, attorneys and Affiliates pursuant to the terms of a non-disclosure or confidentiality agreement. If Customer is using a third party provider to host a Product, then such provider may also receive, subject to a confidentiality obligation, information related to the terms of this Agreement or Customer’s usage of the applicable Product.
4.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party’s Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.
5. WARRANTIES AND DISCLAIMER OF WARRANTIES
5.1 Limited Support Services Performance Warranty. ClickHouse warrants that it will perform the Support Services in a professional, workmanlike manner, consistent with generally accepted industry practice, and in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, ClickHouse’s sole obligation, and Customer’s exclusive remedy, shall be for ClickHouse to re-perform the applicable Support Services.
5.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 5.1 ABOVE, THE SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND CLICKHOUSE MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SUPPORT SERVICES OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CLICKHOUSE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SUPPORT SERVICES AND ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT THE SUPPORT SERVICES AND ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT ARE NOT DESIGNED OR INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, WEAPONS SYSTEMS, OR LIFE SUPPORT SYSTEMS.
6. LIMITATION OF LIABILITY
6.1 Excluded Damages. IN NO EVENT SHALL CUSTOMER OR CLICKHOUSE, OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Damages Cap. EXCEPT WITH RESPECT TO (I) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 4, (II) AMOUNTS PAYABLE BY CUSTOMER UNDER SECTION 3 OF THIS AGREEMENT AND EACH ORDER FORM, AND (III) CUSTOMER’S VIOLATIONS OF THE USE RESTRICTIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL CLICKHOUSE’S OR CUSTOMER’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CLICKHOUSE UNDER THIS AGREEMENT FOR THE AFFECTED SUPPORT SERVICES DELIVERED AND/OR MADE AVAILABLE TO CUSTOMER UNDER SUCH ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY.
6.3 Basis of the Bargain. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 6 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF CLICKHOUSE FOR THE SUPPORT SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
7. TERM AND TERMINATION
7.1 Subscription Term. The initial Subscription Term for each Subscription will commence and expire in accordance with the start date and end date set forth on the applicable Order Form, unless earlier terminated in in accordance with Section 7.3 below. Thereafter, each Subscription may be renewed for additional one (1) year periods upon the mutual written agreement of the parties. The initial Subscription Term, plus any subsequent renewal Subscription Term shall be the “Subscription Term”.
7.2 Agreement Term. This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with Section 7.3(b) below, continue in force and effect for a period of two (2) years. Thereafter, the term of this Agreement shall automatically renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current term. The initial term of this Agreement, plus any subsequent renewal term, shall be the “Term” of this Agreement. Notwithstanding any expiration of this Agreement, its terms will continue to apply to any Subscription that has not been terminated or for which the Subscription Term has not expired.
7.3 Termination.
- Subscriptions. Each party may terminate a Subscription upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement with respect to such Subscription, and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Upon the termination or expiration of a Subscription, the rights and obligations of the parties with respect thereto will, subject to Section 7.4 below, cease, provided that termination of a Subscription under this subsection (a) will not result in termination of any other Subscriptions.
- Agreement. Either party may terminate this Agreement upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement with respect to any active Subscriptions hereunder, and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. For the avoidance of doubt, termination of this Agreement under this subsection (b) will result in the termination of all Subscriptions and Order Forms.
7.4 Survival. Upon the expiration or termination of an Order Form or this Agreement, (i) Customer shall have no further rights under any affected Subscription(s); and (ii) any payment obligations accrued under Section 3, as well as the provisions of Sections 1, 4, 5, 6, 7, 7.4 and 9 of this Agreement will survive such expiration or termination.
8. GENERAL
8.1 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.
8.2 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.
8.3 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.
8.4 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 Support Services specified in this Agreement or for such other business purpose as is specified in this Agreement.
8.5 Customer Identification. ClickHouse may identify Customer as a user of the Support Services, on its website, through a press release issued by ClickHouse and in other promotional materials.
8.6 Feedback. Customer, Customer’s Affiliates, and their respective agents, may volunteer feedback to ClickHouse, and/or its Affiliates, about the Support 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.
8.7 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.
8.8 Governing Law, Jurisdiction and Venue.
- Customers in California. If Customer is located in California (as determined by the Customer address on the applicable Order Form), 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.
- Customers Outside of California. If Customer is located anywhere other than California (as determined by the Customer address on the applicable Order Form), 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.
- 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.
- 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.
8.9 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.
8.10 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 in person or by e-mail, if acknowledged received by return e-mail or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified on an Order Form. Notices to ClickHouse may also be sent to [email protected]. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section.
8.11 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.
8.12 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.
8.13 Entire Agreement; Amendment. This Agreement, together with any Order Forms executed by the parties, and the Support Services Policy, 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 Order Form (but only for the transaction thereunder), (ii) an applicable Addendum (including any exhibits, attachments and addenda thereto), (iii) this Agreement, and (iv) the Support Services Policy. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Customer issues any purchase orders or similar documents in connection with its purchase of a Subscription, it shall do so only for the purpose of Section 2.2(2) or for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Customer’s purchase order or any 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.