These Service Agreement terms (this “Agreement”) govern Customer’s purchase and use of the Services and are offered by Bytebase, LLC, with a place of business at 651 N Broad St, Suite 206, Middletown, Delaware, 19709, United States (“Company”). By executing an Order Form that references this Agreement, the entity identified as the customer in that Order Form (“Customer”) agrees to this Agreement, and the “Effective Date” is the effective date of that Order Form. This Agreement contains, among other things, liability limitations and use limitations.
This Agreement incorporates the Product Use Terms set forth in Exhibit A and the Support Terms set forth in Exhibit B, each of which forms an integral part of this Agreement. Customer may purchase subscriptions and related services from Company from time to time under one or more ordering documents (each, an “Order Form”), each of which shall be governed by this Agreement. An Order Form may be an ordering document executed by the parties or, where Customer purchases through a cloud service provider marketplace, the applicable private offer accepted by Customer on that marketplace.
In the event of any conflict between this Agreement and an Order Form, the Order Form shall prevail with respect to the subject matter of that Order Form. Any terms contained in a purchase order or similar document issued by Customer shall have no force or effect and shall not modify or supplement this Agreement or any Order Form, even if signed or otherwise accepted after the Effective Date, and any such terms are hereby rejected. Any purchase order is accepted for administrative and payment-tracking purposes only.
For purposes of this Agreement, “Software” means the Bytebase Enterprise self-hosted software licensed by Company under this Agreement, and “Services” means, collectively, the Software, technical support, and any related services provided by Company under this Agreement.
1. Services
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. Customer’s use of the Services is subject to Exhibit A, and the Support Terms applicable to the Services are set forth in Exhibit B.
2. Payment of fees and license delivery
2.1 Customer will pay Company the fees set forth in the applicable Order Form for the Services in accordance with the payment terms set forth therein (the “Fees”). Unless otherwise specified in the applicable Order Form, all Fees are payable annually in advance. All Fees are non-refundable except as expressly set forth in this Agreement.
2.2 Notwithstanding Section 2.1, where the applicable Order Form is a private offer accepted on a cloud service provider marketplace, the Fees are listed, invoiced and payable through that marketplace in accordance with its terms and billing procedures.
2.3 The license will be issued within three (3) business days after (i) confirmation that the applicable payment has been received, and (ii) Customer provides the Bytebase Workspace ID and any other information reasonably required to issue the license.
2.4 All Fees are exclusive of taxes. Customer is responsible for all sales, use, value-added, withholding, and similar taxes and duties arising out of this Agreement, other than taxes based on Company’s net income. The tax treatment applicable to a given purchase is as set forth in the applicable Order Form.
3. Term and termination
3.1 Subject to earlier termination as provided below, this Agreement will commence on the Effective Date. The subscription term for the Services (the “Subscription Term”) will begin on the date the applicable license is issued by Company and will continue for the period specified in the applicable Order Form. The Subscription Term will not renew automatically; any renewal or extension of the Subscription Term will be pursuant to a new Order Form.
3.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, payment obligations, confidentiality obligations, proprietary rights, intellectual property ownership, indemnification obligations, warranty disclaimers, limitations of liability, and any other provisions that by their nature are intended to survive termination.
4. Confidentiality and proprietary rights
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data that Customer processes using the Software (“Customer Data”). Because the Software is self-hosted within Customer’s own environment, Customer Data remains under Customer’s control, and Company does not access or receive Customer Data except to the extent Customer chooses to provide it to Company in connection with support. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. The Software is licensed, not sold, to Customer. Company and its licensors shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation services or support, and (c) all intellectual property rights related to any of the foregoing. All rights not expressly granted to Customer under this Agreement are reserved by Company.
4.3 Company may identify Customer by name and logo as a customer of Company on Company’s website and in customer lists, subject to Customer’s applicable brand usage guidelines.
5. Customer representations and indemnity
Customer represents and warrants that it will use the Services only in compliance with all applicable laws and regulations and the terms of this Agreement (including the restrictions in Exhibit A). Customer will indemnify and hold Company harmless from any damages, losses, liabilities, settlements and expenses (including reasonable attorneys’ fees) arising from a third-party claim that results from Customer’s breach of the foregoing.
6. Disclaimer of warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS”, AND COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE.
7. Limitation of liability
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF EACH PARTY AND ITS AFFILIATES AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY CUSTOMER OR ITS AFFILIATES HEREUNDER IN THE ONE (1) YEAR PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT LIMIT CUSTOMER’S OR ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 2 ABOVE.
8. Miscellaneous
8.1 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent; provided that either party may assign this Agreement in its entirety, without the other party’s consent, to an affiliate or to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets. Company may otherwise transfer and assign any of its rights and obligations under this Agreement without consent. Any purported assignment in violation of this Section is void.
8.2 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
8.3 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to conflicts of law principles.
8.4 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement, other than payment obligations, to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental actions, interruption or failure of the internet or telecommunications services, or other similar events. The affected party shall use commercially reasonable efforts to mitigate the effects of such event and resume performance as soon as reasonably practicable.
8.5 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
8.6 Entire Agreement. This Agreement, together with the Order Forms and any exhibits, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to its subject matter. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
8.7 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Exhibit A – Product Use Terms
1. Permitted use
Subject to this Agreement and during the applicable Subscription Term, Company grants Customer a non-exclusive, non-transferable, non-sublicensable right to use the Services and any Software provided for use on Customer premises or devices solely for Customer’s internal business purposes and in accordance with the applicable license scope and usage metrics set forth in the applicable Order Form.
2. Restrictions
Except as otherwise expressly permitted by this Agreement, Customer shall not, and shall not permit any third party to: (a) rent, lease, sell, sublicense, or otherwise make the Software available to a third party; (b) use the Software for timesharing, service bureau, outsourcing, or other third-party benefit purposes; (c) modify, translate, or create derivative works based on the Software; (d) reverse engineer, decompile, or disassemble the Software, except to the extent such restriction is prohibited by applicable law; (e) remove, alter, or obscure any proprietary notices or labels; (f) use the Software in violation of applicable laws or regulations; (g) use the Software beyond the license scope or usage metrics purchased under the applicable Order Form; (h) interfere with, disable, circumvent, or attempt to circumvent any license key, access control, or other usage control mechanism of the Software; (i) access or use the Software for the purpose of developing, providing, or supporting a competing product or service; or (j) share any login credentials, license keys, or similar access credentials with any unauthorized third party.
3. Customer responsibilities
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including hardware, servers, software, operating systems, networking, and web servers. Customer shall also be responsible for maintaining the security of its equipment, accounts, passwords, and files, and for all uses of Customer accounts or equipment with or without Customer’s knowledge or consent.
Exhibit B – Support Terms
The Support Terms applicable to the Services are set forth in the Service Level Agreement available at SLA, which is incorporated into and forms an integral part of this Agreement.