Quobyte Terms and Conditions

Version 2 - August 14, 2020

These terms and conditions (these Terms and Conditions) set forth herein, together with any Cover Pages (collectively, this Agreement), constitute the full and complete agreement between you (the Licensee) and Quobyte Inc., a Delaware corporation (Quobyte). By using the Software or otherwise indicating your acceptance to these Terms and Conditions, you agree (i) you have read and understand this Agreement; (ii) you are bound by this Agreement; (iii) this Agreement is valid and enforceable against you; and (iv) to the extent you are using the Software on behalf of a business entity you have the power and authority to bind that business entity to this Agreement. We use the term you to refer to you as an individual and to any business entity for which you are acting as an agent or representative.


1. Grant of License. Subject to the terms and conditions of this Agreement, Quobyte grants the Licensee a worldwide, non-exclusive, revocable, limited, non-transferable, non-sublicensable license during the Term:

1.1. to install and use, and to permit its Internal Users to install and use, the Server Software on the Licensees Authorized Systems;

1.2. to install and use the Client Software on the Licensees Authorized Systems to interact with the Server Software; and

1.3. to permit its Authorized Users to install and use the Client Software on their Authorized Systems to interact with the Server Software.


2. Use of Software.

2.1. Authorized Users. The Licensee shall inform all Authorized Users of the restrictions set forth herein, including without limitation those provisions relating to Intellectual Property Rights, confidentiality, disclaimer of warranties and limitations of liability. The Licensee will not make any representations or warranties on behalf of Quobyte regarding the Software. The Licensee shall be responsible for all acts and omissions of Authorized Users in connection with the Software. The Licensee agrees to secure and protect all copies of the Software in a manner consistent with the Licensees obligations hereunder.

2.2. Restrictions. Except as expressly permitted herein, the Licensee shall not, and shall not permit others to: (i)reproduce, publish, disclose or copy any portion of the Software or the Documentation, except for (A) a reasonable number of instances of the Software that are generated on Authorized Systems through normal operation in compliance with this Agreement and the Documentation, and (B) one archival copy solely for backup and disaster recovery purposes; (ii)remove any copyright or other Intellectual Property Rights notice from the Software or the Documentation; (iii)decompile, disassemble or reverse engineer the Software other than as expressly permitted by law (in which case the end results of such activities shall be the Confidential Information and intellectual property of Quobyte, and the Licensee hereby assigns all right, title and interest therein to Quobyte); (iv) assign, sublicense, transfer, sell, resell, rent or lease the Software or the Documentation, or any part thereof, without the prior written consent of Quobyte; (v) publish results of any storage benchmark or storage comparison tests run on Software or any other test that names or references Quobyte to any third party without the prior written consent of Quobyte; (vi) alter, modify, adapt or create any derivative work based upon the Software or the Documentation without the prior written authorization of Quobyte, or (vii) use the Software in any illegal or unethical manner or for illegal or unethical purposes. The Licensee shall comply with, and shall ensure that all Authorized Users comply with, any limitations on the maximum Usage set forth on the Cover Page. Quobyte reserves the right to limit the number of License Keys granted to any one Licensee or group of affiliated Licensees at any time in its sole discretion.

2.3. Records and Examinations. The Licensee agrees to make, and to maintain until the expiration of six years after the last payment under this Agreement is due, complete books, records and accounts regarding this Agreement and the Licensees performance hereunder. Quobyte or its third-party representatives shall have the right, not more than once every six months and on at least five days notice, to examine such books, records and accounts during the Licensees normal business hours to verify the Licensees compliance with this Agreement. The Licensee agrees to remedy immediately any non-compliance with this Agreement disclosed by such examination. If the examination discloses underpayment of fees greater than 5% of those due hereunder, then the Licensee shall additionally pay all costs of such examination. At Quobytes request, the Licensee shall provide Quobyte with a list of all copies and locations of the Software and the Documentation.

2.4. Unintended Uses. The Software is not designed, manufactured or intended for use as a security device, and should be installed and operated in connection with Licensees firewalls and other appropriate security measures. The Licensee is responsible for determining all security requirements necessary and appropriate for securing the Licensees network and computer systems and the operation of the Software in connection therewith. The Software is not designed, manufactured or intended for use in any environment in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage, such as in the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems or in the on-line control of equipment in any hazardous environment requiring fail-safe performance. Quobyte, its licensors and suppliers specifically disclaim any express or implied warranty of fitness for the foregoing activities, and the Licensee represents and warrants to Quobyte that the Licensee will not use the Software for such activities.

2.5. Monitoring; Usage and License Keys. The Software may provide to Quobyte information regarding the systems on which the Software is installed, including without limitation available system resources (such as installed disk space and number of processors) and usage (such as used disk space and data throughput). Quobyte may monitor and obtain such data from time to time during the Term, and may use such data for the development and testing of its products and to confirm that the Licensees and Authorized Users installation and use of the Software is in compliance with this Agreement, including any limitations on Usage set forth on the Cover Page.

2.6. Third Party Software. Third Party Software required for use of the Software set forth on the Cover Page can be found at https://support.quobyte.com/docs/3/latest/third_party_software_license.html. The Licensee may already have or may be required to download or otherwise obtain such Third Party Software in order for the Licensee to use the full functionality of the Software. Third Party Software is protected by copyright and other Intellectual Property Rights of Third Party Software licensors. The Licensees use of such Third Party Software shall be subject to the license terms and conditions under which such Third Party Software is made available. In the event of any conflicts between this Agreement and any applicable third party license terms, as to that specific component only and to the extent of such conflict, the terms of the applicable third party license agreement shall control.

2.7. Community and Demo Versions. Quobyte reserves the right to limit the functionality of each of the Community Version and Demo Version of the Software at any time in its sole discretion with or without notice, including without limitation making certain versions or updates unavailable, or otherwise discontinuing to offer the Community Version and Demo Version of the Software. Quobyte further reserves the right to make each of the Community Version and Demo Version unavailable to any particular Licensee for any reason and at any time in its sole discretion, with or without notice to such Licensee.


3. Delivery and Installation. Upon your acceptance of the terms and conditions of this Agreement, Quobyte will make available to you the Software, the Documentation and, to the extent you have requested a Commercial License Key or a Community License Key, the applicable License Key for download. The Licensee will be responsible for installation of the Software, and will install the Software only on appropriate computer hardware and operating systems in accordance with the specifications in the Documentation. Any installation, deployment or configuration services that the Licensee requests Quobyte to provide, unless expressly set forth on the Cover Page, shall be provided (if at all) pursuant to Section5(d) of this Agreement.


4. Payments and Fees.

4.1. Fees. To the extent you are using a Commercial Version of the Software, you shall pay Quobyte the fees set forth on the Cover Page (the Fees) in accordance with the terms and conditions set forth therein and herein. The Licensees failure to comply with the payment terms set forth herein constitutes a material breach of this Agreement. To the extent you are using the Demo Version or the Community Version of the Software, Quobyte is providing the Software to you free of charge in accordance with the terms and conditions of this Agreement.

4.2. Taxes. Any federal, state, local or foreign sales, use, or other taxes (excluding only taxes based on Quobytes net income), assessments, or other governmental fees or charges relating to or arising out of this Agreement (collectively, Taxes) shall be paid by the Licensee. If Quobyte is required to pay any Taxes, the Licensee shall reimburse Quobyte for those payments.

4.3. Invoices and Payment. All amounts payable by the Licensee to Quobyte under this Agreement shall be payable in full within 30 days following the date of Quobytes invoice therefor. Any amounts payable by the Licensee hereunder which remain unpaid after the due date shall be subject to a late charge equal to the lesser of (i) 1.5% per month or (ii) the highest amount permitted under applicable law. The Licensee agrees to pay applicable media and shipping charges, wire transfer fees and currency conversion fees.

4.4. NON-REFUNDABLE. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL FEES PAID HEREUNDER ARE NON-REFUNDABLE.


5. Support Services. This Section 5 shall apply solely to the extent the Licensee has a Commercial Version of the Software as set forth on the Cover Page.

5.1. Support Services. Subject to the Support Conditions (as defined below), during the Term Quobyte agrees to provide the Licensee with the support and maintenance services set forth in ExhibitA attached hereto (the Support Services). The Support Services do not include multi-tiered technical support, and any support services not expressly set forth in ExhibitA shall be made available only pursuant to a separate agreement with Quobyte and for additional fees, if at all.

5.2. Support Conditions.

5.2.1. Quobytes obligation to provide Support Services is subject to the following conditions (Support Conditions): (A) the Licensee shall have paid all Fees then due hereunder; (B) the Software is being used by the Licensee and all Authorized Users in accordance with the terms and conditions of this Agreement; (C) the release of the Software being used by the Licensee is the most recent release provided or made available by Quobyte hereunder, and the Licensee has installed all bug fixes and updates provided or made available by Quobyte hereunder; and (D) the Licensee shall have provided Quobyte with all information reasonably requested by Quobyte from time to time in connection with Quobytes performance of Support Services.

5.2.2. If the Licensee requests that Quobyte provide Support Services under circumstances where Quobyte is aware that a Support Condition has not been satisfied, then Quobyte will notify the Licensee prior to performing the requested Support Services. If Quobyte provides Support Services to the Licensee where a Support Condition has not been satisfied, or if Quobyte determines that the problem reported by the Licensee resulted from problems with the Licensees computer equipment, operating systems or other system software, or from problems with any other software, network or database not provided by Quobyte upon which the applicable Software relies or with which the applicable Software interfaces or is interdependent, then such services will be deemed not to be Support Services hereunder. In such case, the Licensee will pay to Quobyte a separate fee based on the services provided and Quobytes then-current rates for such services pursuant to Section5(d). Acceptance of such fee shall not be deemed to constitute a waiver of any failure to pay fees otherwise due hereunder or other breach of this Agreement.

5.2.3. Cessation of Platform Support. Upon three months notice to the Licensee, Quobyte may elect to cease support of the Software on a particular operating system or other platform. Following the effective date of cessation, Quobyte will no longer be required to provide Support Services for the use of the Software on the operating system or platform, and the Documentation will be deemed to be modified to eliminate references to that operating system or platform in the specifications therein.

5.2.4. Other Services. Except for the Support Services, all installation, deployment, configuration, training, implementation, consulting, planning, and other services provided by Quobyte to the Licensee will be billed by Quobyte to the Licensee at Quobytes then-current standard rates, including reasonable travel expenses, for the services so provided. Except for services set forth on the Cover Page or in a statement of work entered into hereunder, Quobyte may determine in its sole discretion whether or not to provide any additional services requested by the Licensee.


6. Intellectual Property Rights.

6.1. Quobyte Ownership Rights. As between the parties, Quobyte owns and retains all right, title and interest in and to the Software and the Documentation and all copies, derivative works and modifications thereof, including all Intellectual Property Rights therein. The Licensee shall have no rights therein other than the limited licenses expressly granted hereunder. Quobyte reserves all rights not expressly granted by it under this Agreement.

6.2. Licensee Data. Subject to Quobytes rights set forth in Section6(a), the Licensee shall retain all right, title and interest in and to all of the Licensees data and content that the Licensee accesses and stores via its use of the Software (the Licensee Data). Licensee represents and warrants that it has, and hereby grants Quobyte, all necessary rights with respect to the Licensee Data solely to enable Quobyte to perform its obligations under this Agreement and take such further actions as may be requested by Licensee from time to time.


7. Confidentiality.

7.1. Confidential Information. Each party agrees not to disclose or use Confidential Information of the other party except to the extent required to implement, maintain, and support the Software or the Documentation for the Licensees use under this Agreement. Notwithstanding the foregoing, a party may disclose Confidential Information of the other party to those employees and contractors of the first party who (i) are directly involved in the performance of this Agreement; and (ii) have been made aware of the informations confidential nature and are under a contractual restriction on non-use, non-disclosure and proper treatment of Confidential Information. The receiving party shall at all times maintain the disclosing partys Confidential Information in confidence in the same manner and to the same extent as the receiving party protects its own confidential information of a similar nature (which shall in no event be less than a reasonable degree of care). Confidential Information shall not include information that (a) was in the receiving partys possession without confidentiality restriction prior to disclosure hereunder, (b) is or has become generally available to the public through no act or omission of the receiving party or (c) has been rightfully received by the receiving party from a third party without restriction on use or disclosure. Either party may disclose Confidential Information to the extent required by applicable law, subpoena or judicial order, provided that such party provides the other party with as much prior notice as possible and cooperates to assist the other party to seek a protective order or other appropriate relief. The Licensee agrees to keep confidential the terms and conditions of this Agreement, provided that the existence of this Agreement shall not be considered confidential.

7.2. Feedback. The Licensee may from time to time provide suggestions, comments or other feedback to Quobyte regarding Quobytes current or future products and services, including the Software and the Documentation (collectively, Feedback). The Licensee agrees that Feedback, even if designated as confidential by the Licensee, shall not create any confidentiality obligation hereunder for or upon Quobyte or its suppliers. Except as otherwise provided herein or in a separate subsequent written agreement signed by authorized representatives of the parties, the Licensee agrees that Quobyte shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit any and all Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property or otherwise.

7.3. Injunctive Relief. Each party hereby acknowledges that unauthorized disclosure or use of the Confidential Information of the other party would cause irreparable harm and significant injury to the disclosing party that may be difficult to ascertain. Accordingly, each party agrees that the other party will have the right to seek immediate injunctive relief, without posting a bond or other security, to enforce the receiving partys obligations under this Agreement in addition to any other rights and remedies the disclosing party may have.


8. Limited Warranties; Limitations of Warranties.

8.1. Commercial License Warranties. This Section 8(a) shall apply solely to the extent the Licensee has a Commercial Version of the Software.

8.1.1. Product Warranty. Quobyte hereby warrants to the Licensee that the Software will perform substantially in accordance with its specifications set forth in the Documentation for a period of 60 days following the Effective Date (the Product Warranty). The Licensees sole and exclusive remedy for any breach of the Product Warranty shall be to have Quobyte replace or modify the Software to correct the defect giving rise to the breach within up to 60 days from Quobytes receipt of written notification of the defect from the Licensee (the Cure Period). If Quobyte is unable to replace or modify the defective Software within the Cure Period using reasonable efforts, then, unless Quobyte is able to provide the Licensee with another method of achieving the desired effect using reasonable efforts, the Licensee may terminate this Agreement solely with regards to the nonconforming portion of the Software by giving written notice thereof to Quobyte within 10 days following the end of the Cure Period and returning all copies of that Software to Quobyte. Upon Quobytes receipt thereof, Quobyte shall refund the License Fee paid by the Licensee for that Software.

8.1.2. Support Services Warranty. Quobyte hereby warrants to the Licensee that the Support Services will be provided in a workmanlike manner (the Support Services Warranty). The Licensees sole and exclusive remedy for any breach of the Support Services Warranty shall be to have Quobyte reperform the nonconforming services so that they conform with the Support Services Warranty at no additional cost to the Licensee.

8.1.3. Exclusions. Quobyte shall have no obligation for any breach of any of the foregoing warranties (i) if the breach is caused, in whole or in part, by negligence of the Licensee or any Authorized User, improper or unauthorized use of the Software, use of the Software in a manner for which it was not designed, or by causes external to the Software, including without limitation power failure, electric power surges or network unavailability; (ii) if the breach relates to Third Party Software obtained by Licensee; (iii) if the Licensee or any of its Authorized Users, employees, agents or contractors has modified the Software without Quobytes prior written consent; or (iv) if the release of the Software being used by the Licensee is not the most recent release provided or made available by Quobyte hereunder, or the Licensee has not installed all bug fixes and updates provided or made available by Quobyte hereunder.

8.2. COMMUNITY AND DEMO VERSIONS PROVIDED AS-IS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE COMMUNITY VERSION AND THE DEMO VERSION ARE PROVIDED TO LICENSEE AS IS AND AS AVAILABLE, WITH ALL FAULTS AND WITHOUT WARRANTY, OBLIGATION, PERFORMANCE ASSURANCE OR GUARANTEE TO LICENSEE OF ANY KIND. LICENSEE ACKNOWLEDGES AND AGREES THAT THE COMMUNITY VERSION AND THE DEMO VERSION ARE PROVIDED FOR NO COST AND THAT QUOBYTE WOULD NOT HAVE PROVIDED SUCH SOFTWARE TO LICENSEE WITHOUT THE BENEFITS OF THIS SECTION 8(B), AND THAT THIS SECTION 8(B) IS AN ESSENTIAL COMPONENT OF THIS AGREEMENT. LICENSEE EXPRESSLY ASSUMES ALL RISK IN CONNECTION WITH USING THE COMMUNITY VERSION AND THE DEMO VERSION. 

8.3. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(A), QUOBYTE AND QUOBYTES LICENSORS MAKE, AND THE LICENSEE RECEIVES FROM QUOBYTE, NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO ANY SOFTWARE, DOCUMENTATION OR SERVICES PROVIDED HEREUNDER AND ANY MATTERS RELATING TO THIS AGREEMENT. QUOBYTE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. QUOBYTE AND QUOBYTES LICENSORS MAKE NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE. THE LICENSEE ACKNOWLEDGES THAT THE LICENSEES USE OF THE SOFTWARE AND THE DOCUMENTATION SHALL BE AT THE LICENSEES SOLE RISK. THE LICENSEE SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY DATA USED IN CONNECTION WITH THE SOFTWARE. QUOBYTE AND QUOBYTES LICENSORS DO NOT WARRANT THAT ACCESS TO OR USE OF THE SOFTWARE OR THE DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE.


9. Indemnification.

9.1. By Quobyte. This Section 9(a) shall apply solely to the extent the Licensee has a Commercial Version of the Software. Quobyte will defend any action brought against the Licensee claiming that its use of the Software constitutes infringement or misappropriation of any United States patent, copyright or trade secret of any third party, and will pay any reasonable costs incurred in connection with the defense of the third party claim and amounts actually awarded in a final judgment or negotiated pursuant to a settlement agreement with the third party. Quobytes obligations set forth in this Section9(a) are conditioned upon the Licensee providing Quobyte with prompt written notice of, and sole control of the defense of and any settlement negotiations for, any threatened or pending claim or proceeding, and the Licensee providing support reasonably requested by Quobyte in connection therewith. Quobyte shall have no liability under this Section9(a) for any claim resulting from (i) any modification of the Software done by anyone other than Quobyte, (ii) any use of the Software other than in accordance with this Agreement and the Documentation, (iii) the Licensees use of any non-current version of the Software (to the extent that the Licensees liability for the infringement would have been avoided by the use of a more recent version of the Software which had been made available by Quobyte to the Licensee) or (iv) any combination, operation or use of the Software with any hardware or software not provided by Quobyte (other than the Third Party Software). If the use of the Software infringes any third partys Intellectual Property Rights or is enjoined, or Quobyte believes it is likely to infringe any third partys Intellectual Property Rights or be enjoined, Quobyte may (a) procure for the Licensee the right to continue use of the Software as furnished; (b) replace or modify the licensed Software to make it non-infringing, provided that the Software still substantially conforms to the applicable Documentation; or (c) terminate this Agreement and refund the prorated amount of any Fees prepaid for the terminated period. This Section9(a) sets forth Quobytes sole and exclusive liability to the Licensee with respect to any alleged or actual infringement, misuse, misappropriation, or other violation of a third partys Intellectual Property Rights related to any Software, or any part thereof or the Licensees use thereof.

9.2. By the Licensee. The Licensee will defend any action brought against Quobyte arising out of or relating to (i) representations or warranties made by the Licensee, or by any agent, contractor or other third party performing services for or on behalf of the Licensee, regarding Quobyte or the Software (except to the extent approved by Quobyte in a prior writing) or (ii) any claim that the use of the Licensee Data constitutes infringement or misappropriation of any United States patent, copyright or trade secret of any third party. The Licensee will pay any reasonable costs incurred in connection with the defense of the third party claims and amounts actually awarded in a final judgment or negotiated pursuant to a settlement agreement with the third party. The Licensees obligations set forth in this Section9(b) are conditioned upon Quobyte providing the Licensee with prompt written notice of, and sole control of the defense of and any settlement negotiations for, any threatened or pending claim or proceeding.

9.3. No Indemnification for Community or Demo Versions. Quobyte is providing the Community Version and the Demo Version to Licensee at no cost and expressly provides no indemnity for Licensees use of such Software. Quobyte would not have provided the Community Version or the Demo Version to Licensee without the benefit of this Section 9(c).


10. Term and Termination.

10.1. Term. This Agreement shall commence on the Effective Date and shall continue for the Initial Term. Following the Initial Term, this Agreement shall renew, solely with respect to the Commercial Version and the Community Version, for successive 12-month terms (each, a Renewal Term and together with the Initial Term, the Term) unless either party provides the other with 90 days prior written notice of its intention not to renew in accordance with this Agreement. For further clarity, the Demo Version shall not renew following the Initial Term, provided, however, Quobyte reserve the right to (i) transition Licensees license over to a Commercial Version and charge Licensee the applicable fees for such commercial license, or (ii) discontinue Licensees access to the Software with no liability or further obligation to Licensee.

10.2. Termination. Either party may terminate this Agreement upon written notice to the other party if the other party (i) materially breaches this Agreement and does not cure the breach within 30 days after receiving notice thereof or (ii) becomes or is declared insolvent or bankrupt, commits an act of bankruptcy, or is subject to a proceeding in bankruptcy, receivership, liquidation or insolvency. In the event of Quobytes bankruptcy, the Licensee may exercise the rights provided to the Licensee by Section365(n) of the United States Bankruptcy Code with regards to the licenses granted herein.

10.3. Effects of Expiration or Termination. Upon expiration or termination of this Agreement, the Licensees access to the storage space accessible via the Software shall cease. Except as set forth in the preceding sentence, all licenses granted by Quobyte hereunder shall terminate immediately upon the termination or expiration of this Agreement. Within ten days of termination pursuant to Section 11(b) above, the Licensee will purge all copies of the Software and Documentation from all computers and storage media on which the Licensee has maintained them, destroy or return to Quobyte all physical copies of the Software and Documentation provided to or made by the Licensee under this Agreement, and promptly certify in writing to Quobyte that it has completed those actions. Each party will return or destroy all Confidential Information of the other party. Expiration or termination of this Agreement shall not relieve either party of any payment or other obligation under this Agreement which was to have been previously performed by such party. The Licensee shall remain obligated for all fees hereunder.

10.4. Survival. Sections2(b)-2(e), 4, 6, 7(b), 8(b), 8(c) and 9-13 shall survive any expiration or termination of this Agreement. Sections7(a) and 7(c) shall survive any expiration or termination of this Agreement for a period of three years; provided, that for Confidential Information that is a trade secret, such sections shall survive for so long as the Confidential Information remains a trade secret.


11. Miscellaneous.

11.1. Amendments. This Agreement may not be amended, in whole or in part, except by a writing signed by both Quobyte and the Licensee. The headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and shall not modify or limit any of the terms thereof.

11.2. Export Control. The Licensee shall comply with all United States and foreign export and import laws, rules, and regulations related to the Licensees implementation, license, and/or use of any Software outside the United States. The Licensee shall be responsible for and shall pay (or reimburse Quobyte for) all United States and foreign export and import duties, fees, and other governmental charges, however designated, associated with the Licensees implementation, license, or use of any Software outside the United States.

11.3. Government Use. In the event that the Licensee is an agency of the United States Government, or that the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, the Licensee agrees that the Software is provided with restricted rights. In that case, the Software and Documentation are Commercial Items, as that term is defined at 48 C.F.R. Section2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. Section12.212 or 48 C.F.R. Section227.7202, as applicable. Consistent with 48 C.F.R. Section12.212 or 48 C.F.R. Sections227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (i)only as Commercial Items and (ii)with only those rights as are granted to all other licensees and end users pursuant to Quobytes standard Software License Agreement.

11.4. Force Majeure. Except for obligations to make payments hereunder, neither party shall be liable to the other for any delay or failure to perform any of such partys obligations under this Agreement if the delay or failure arises from any cause or causes beyond the reasonable control of such party, including without limitation act of God, accident, earthquake, fire, flood, hurricane, tornado, storm or other weather condition, outbreak, epidemic, pandemic, war, terrorism, cyberterrorism, hacking, sabotage, riot, civil disorder, act or decree of any governmental body, power or network failure, lockout, strike or other labor disturbance, illness, death or any other natural or artificial disaster. In the event of any such failure or delay, the parties shall use commercially reasonable efforts to perform as soon as practicable.

11.5. Assignment. This Agreement shall be binding upon and for the benefit of Quobyte and the Licensee and their respective legal representatives, successors, and permitted assigns. The Licensee is not entitled to assign, sublicense, delegate, or otherwise transfer any of the Licensees rights or obligations under this Agreement without Quobytes prior written consent.

11.6. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions. The Licensee consents to, and agrees that the Licensee is subject to, the jurisdiction of the state and federal courts of the State of California with respect to any actions for enforcement of or breach of this Agreement brought by Quobyte against the Licensee. The original of this Agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. The parties hereby exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act to this Agreement. 

11.7. Waiver. No waiver by either party of any breach or default by the other party of any of its obligations under this Agreement shall be deemed to be a waiver of any other breach or default of the same or any other nature.

11.8. Severability. If any provision hereof shall be deemed by any court to be invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permissible by law, and the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired.

11.9. Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given (i) if delivered personally, as of the date received; (ii) if delivered by certified mail, return receipt requested, three business days after being mailed; or (iii) if delivered by a nationally recognized overnight delivery service, one business day after being deposited with the delivery service. Notices shall be delivered to the recipients address listed on the Cover Page or to such other address as the recipient may specify from time to time by a written notice given pursuant to this Section12(i).

11.10. Counterparts. This Agreement may be executed in separate counterparts (including by facsimile, Portable Document Format (.pdf) or other electronic transmission), each of which is deemed an original, and all of which are deemed one and the same instrument.


12. Definitions.

12.1. Activation Date means the date on which the Software and License Keys have been delivered or made available to the Licensee, and the Licensee has been permitted to commence use of the Software.

12.2. Authorized System means a computer system that satisfies the specifications set forth in the Documentation on which the Licensee or an Authorized User has installed the Software with a valid License Key for use by Authorized Users.

12.3. Authorized User means an Internal User and, if the Software is designated on the Cover Page as provided to the Licensee pursuant to a Capacity-based Model or a Device-based Model Usage License, any Licensee customer or partner (other than a competitor of Quobyte) whom the Licensee permits to use the Client Software.

12.4. Client Software means the executable code versions of the client portion of the Software set forth on the Cover Page, including all Updates provided hereunder, but excluding any Third Party Software contained in or bundled with the client portion of the Software.

12.5. Commercial License Key means one or more documents in physical or electronic form provided by Quobyte to the Licensee which (i) reflects this Agreement and any limits on Usage set forth on the Cover Page, (ii) includes a reference to the Software, and (iii) includes related encrypted codes which must be referenced by the Software to initialize installation and use of the Software as further described in the Documentation and on the Cover Page.

12.6. Commercial Version means Licensees use of the Software pursuant to a Commercial License Key.

12.7. Community License Key means one or more documents in physical or electronic form provided by Quobyte to the Licensee that includes related encrypted codes which must be referenced by the Software to initialize installation and use of the Software on a limited basis.

12.8. Community Version means use of the Software pursuant to a Community License Key.

12.9. Confidential Information means information pertaining to a partys business, technology, actual or potential customers, marketing or product strategy or product offerings identified by the disclosing party as confidential or which the receiving party knows or should reasonably expect to be confidential, including without limitation the Software and the Documentation.

12.10. Demo Version means Licensees use of the Software other than pursuant to a Community License Key or Commercial License Key.

12.11. Documentation means the documentation for the Software supplied by Quobyte with the Software to assist the Licensee and Authorized Users in the use thereof.

12.12. Effective Date means (i) for the Commercial Version, the date set forth on the Cover Page, and (ii) for the Demo and Community Version, the date that the Licensee first accesses the Software.

12.13. Initial Term means (i) for the Commercial Version, the initial term set forth on the Cover Page, (ii) for the Demo Version, [seven (7) days], and (iii) for the Community Version, one (1) year.

12.14. Intellectual Property Rights means all current and future worldwide intellectual property rights including, without limitation, all patents, copyrights, trademarks, trade secrets and any and all applications and registrations for any of the foregoing.

12.15. Internal User means an employee or consultant of the Licensee who is authorized by the Licensee to use the Software pursuant to the Documentation and this Agreement.

12.16. License Key means the Community License Key or the Commercial License Key, as applicable.

12.17. Server Software means the executable code versions of the server portion of the Software set forth on the Cover Page, including all Updates provided hereunder, but excluding any Third Party Software contained in or bundled with the server portion of the Software.

12.18. Software means the Client Software and the Server Software.

12.19. TB means 1,000,000,000,000 bytes.

12.20. Third Party Software means, with respect to the Software designated on the Cover Page, the third party software that is listed for such Software at https://support.quobyte.com/docs/3/latest/third_party_software_license.html. Third Party Software is provided pursuant to the terms under which such software is made available by the third party and is not subject to the terms applicable to Software under this Agreement.

12.21. Update means new versions (minor or major), patches, corrections, bug fixes, enhancements and other modifications to the Software which are made generally available to Quobytes customers during the Term.

12.22. Usage means the amount of logical storage space accessible via the Software and being utilized by Licensee and Authorized Users at a given point in time, when measured by Quobyte pursuant to Section2(e) of this Agreement.