This Subscription Agreement (“Agreement”) provides the terms and conditions under which the Timescale Products are licensed to end customers (“Customer”).
1.1 Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Timescale grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license: (a) to use the Timescale Product and only for Customer’s Internal Use; (b) to copy the Timescale Products as reasonably necessary to exercise the license rights granted in subsection (a), including making a reasonable number of copies for backup and archival purposes; and (c) to use Timescale Materials (excluding the Timescale Products) only for Customer’s internal use in connection with the use of the Timescale Products, the Support Services, and related Services. “Internal Use” means utilization of Timescale Products solely for Customer’s internal business purposes and not for any commercial purpose; provided that, subject to those restrictions set forth in Section 2.2 of this Agreement, Customer is permitted to include the Timescale Products as part of Customer’s commercially available products and services such that Timescale Products may not be accessed or used by Customer’s end users except indirectly through Customer’s products and services.
1.2 License Restrictions. Customer has no right to transfer, sublicense, or otherwise distribute any Timescale Material to any third party other than the distribution by Customer to its end users of Customer’s commercially available products and services that incorporate the Timescale Products. Except as expressly authorized in this Agreement, Customer will not copy or modify the Timescale Products, in whole or in part. Except as expressly authorized in this Agreement, Customer will not sell, resell, lease, lend, or rent the Timescale Products, use the Timescale Products to provide service bureau, time sharing, rental, application services provider, hosting, or other computer services to third parties, or otherwise make the functionality of the Timescale Products available to third parties. Customer acknowledges that the Timescale Products constitutes and contains trade secrets of Timescale and its licensors, and, in order to protect such trade secrets and other interests that Timescale and its licensors may have in the Timescale Products, Customer agrees not to disassemble, decompile, or reverse engineer the Timescale Products nor permit any third party to do so, except to the extent such restrictions are prohibited by law.
1.3 Open Source Software. The Timescale Products contains or links to open source files or components, each of which continue to be licensed under the terms of the applicable open source license agreement.
1.4 Limited Rights. Customer’s rights in the Timescale Materials will be limited to those expressly granted in this Agreement. Timescale reserves all rights and licenses in and to the Timescale Material not expressly granted to Customer under this Agreement.
1.5 Government Rights. The Timescale Products and Documentation are “commercial computer software” and “commercial computer software documentation”, respectively, as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. Any use, duplication or disclosure of the Timescale Products or the Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement. Manufacturer is Timescale, Inc.
1.6 Ownership of Timescale Materials. Customer expressly acknowledges that, as between Timescale and Customer, Timescale owns all worldwide right, title, and interest in and to the Timescale Materials, including all worldwide Intellectual Property Rights therein. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Timescale Materials as delivered to Customer. Customer will reproduce such notices on all copies it makes of the Timescale Products.
1.7 Ownership of Customer Materials. Timescale expressly acknowledges that, as between Timescale and Customer, Customer owns all worldwide right, title, and interest in and to the Customer Materials (as defined below), including all worldwide Intellectual Property Rights therein.
1.8 Verification and Audit. At Timescale’s written request, Customer will furnish Timescale with a certification signed by an officer of Customer verifying that the Timescale Products is being used pursuant to the terms of this Agreement. Upon at least thirty (30) days prior written notice but for no more than once during each calendar year during the term of the Agreement, Timescale may audit Customer’s use of the Timescale Products to ensure that Customer is in compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. Customer will provide Timescale with access to the relevant Customer records and facilities. If an audit reveals that Customer has underpaid fees to Timescale during the period audited (including by using the Timescale Products in a manner that exceeds the Licensed Configuration), then Timescale will invoice Customer, and Customer will promptly pay Timescale, for such underpaid fees based on Timescale’s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the Subscription fees paid by Customer or if an audit reveals that Customer has breached this Agreement, then Customer will also pay Timescale’s reasonable costs of conducting the audit.
1.9 Responsibilities for End Users. To the extent that Customer is permitted under the Agreement to distribute to its end users Customer’s commercially available products and services that incorporate the Timescale Products: (i) Customer will ensure that the Timescale Products will not be used, directly or indirectly, by its end users for any purpose or in any manner inconsistent with the restrictions, limitations and obligations this Agreement; (ii) Customer will ensure that end users agree to terms no less protective for Timescale than the terms in this Agreement; and (iii) to the extent that any use or access of the Timescale Products by Customer’s end users violates any term in this Agreement, Customer will be fully responsible for such violation.
2.1 Limited Software Warranty. Timescale warrants that, for a period of thirty (30) days after the date the Timescale Products is initially licensed under this Agreement, the Timescale Products will be capable of performing in all material respects in accordance with the functional specifications set forth in the applicable Documentation. As Customer’s sole and exclusive remedy and Timescale’s entire liability for any breach of the warranty set forth in Section 5.1, Timescale will, at its option: (a) promptly correct any Timescale Products that fails to meet this limited warranty; (b) provide Customer with a reasonable procedure to circumvent the nonconformity; or (c) refund the Subscription Fees paid by Customer for the non-conforming Timescale Products upon Customer’s return of such Timescale Products to Timescale.
2.2 Disclaimer. Timescale does not warrant that the Timescale Products will meet Customer’s requirements that the Timescale Products will operate in the combinations that Customer may select for use, that the operation of the Timescale Products will be error-free or uninterrupted, or that all Timescale Products errors will be corrected. TIMESCALE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TIMESCALE OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
3.1 Timescale Indemnity. Timescale will defend or settle any action brought by any third party against Customer to the extent that it is based upon a claim that the Timescale Products, as provided by Timescale to Customer under this Agreement and used within the scope of this Agreement, infringes any Intellectual Property Rights of such third party and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer.
3.2 Indemnification Procedure. The indemnification obligations in this Section are subject to the indemnified party: (i) promptly notifies the indemnifying party in writing of the claim; (ii) grants the indemnifying party sole control of the defense and settlement of the claim; and (iii) provides the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably requested for the defense and settlement of the claim. The indemnified party will have the right to assist the indemnifying party in the defense at settlement at the indemnified party’s expense. The indemnifying party will have no indemnification obligation to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party or its personnel.
3.3 Injunctions. If Customer’s use of any of the Timescale Products hereunder is, or in Timescale’s opinion is likely to be, enjoined due to the type of claim specified in this Section, Timescale may, at its sole option and expense: (a) procure for Customer the right to continue using such Timescale Products under the terms of this Agreement; (b) replace or modify such Timescale Products so that it is non-infringing and substantially equivalent in function to the enjoined Timescale Products; or (c) if options (a) and (b) above cannot be accomplished despite Timescale’s reasonable efforts, then Timescale may terminate Customer’s rights and Timescale’s obligations hereunder with respect to such Timescale Products.
3.4 Exclusions. Notwithstanding the terms of this Section, Timescale will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) modifications to the Timescale Products and a claim would not have occurred but for such modifications; (b) the combination, operation or use of the Timescale Products with equipment, devices, software or data not supplied by Timescale, if a claim would not have occurred but for such combination, operation or use; (c) Customer’s failure to use updated or modified Timescale Products provided by Timescale to avoid a claim; (d) third-party open source software; (e) Timescale’s compliance with any designs, specifications or plans provided by Customer; or (f) Customer’s use of the Timescale Products other than in accordance with this Agreement or the Documentation.
3.5 Sole Remedy. THE PROVISIONS OF THIS SECTION SET FORTH EITHER PARTY’S SOLE AND EXCLUSIVE OBLIGATIONS AND EXCLUSIVE REMEDIES, WITH RESPECT TO THE OTHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
4.1 Definition. “Confidential Information” means: (a) Timescale Materials; (b) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; (c) the specific terms set forth in this Agreement; and (d) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
4.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to provide such information and who provides it without restrictions on use or disclosure.
4.3 Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (b) on a confidential basis to its legal or financial advisors; and (c) as required under applicable securities regulations. In addition, Timescale may disclose the terms and conditions of this Agreement on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of Timescale.
5.1 IN NO EVENT WILL TIMESCALE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE TIMESCALE PRODUCTS, SUBSCRIPTION SERVICES OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT TIMESCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TIMESCALE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO TIMESCALE ON BEHALF OF CUSTOMER FOR THE SPECIFIC SUBSCRIPTION GIVING RISE TO THE LIABILITY.
6.1 Term of the Agreement. This Agreement will begin on the Effective Date and will remain in effect during the time that Customer has a valid subscription for the Timescale Products.
6.2 Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches any term of this Agreement and fails to cure such breach within thirty (30) days after written notice.
6.3 Effect of Termination. Upon termination of this Agreement, all licenses for the Timescale Products will terminate and all other provisions will survive.
7.1 Assignment. Each party may assign this Agreement only in the event of a merger or sale of all or substantially all of its assets or stock. Any other attempt to assign this Agreement, without the consent of the other party, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
7.2 Freedom of Action. Nothing in this Agreement will be deemed to restrict or limit Timescale’s right to perform services for any other party or to assign any employees or subcontractors to perform services for any other party; provided that Timescale complies with its confidentiality obligations under Section 8.
7.3 Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, Customer will not recruit or otherwise solicit for employment any Timescale personnel (including Timescale’s current and former personnel) or subcontractors who participated in the performance of Subscription Services or Services, without Timescale’s express prior written approval.
7.4 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York excluding that body of law known as conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Southern District of New York and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
7.5 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise
7.6 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
7.7 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
7.8 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
7.9 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God, or governmental action.
7.10 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
7.11 Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (the “Export Laws”) to ensure that neither the Timescale Products, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
7.12 Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
7.13 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
8.1 “Documentation” means the standard user documentation for the Timescale Products located at https://docs.timescale.com/.
8.2 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how, and any other intellectual property rights
8.3 “Software” means the software included in the Timescale Products.
8.4 “Subscriptions” means the annual license for the Timescale Products and Subscription Services provided by Timescale.
8.5 “Subscription Services” means the services offered through a subscription as described at https://www.timescale.com/legal/subscription-services.
8.6 “Timescale Materials” means any work product, documents, content, diagrams, software programs, software code, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques, materials, data or other information provided, developed, used or made available by Timescale to Customer in connection with the Agreement. For greater certainty, Timescale Materials include, without limitation, the Timescale Products and Documentation.