This TiDB Enterprise Trial License Agreement (this “Agreement”) shall take effect when you agree to the terms of this Agreement and download TiDB Enterprise for a free trial. If you agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this Agreement. Each of the foregoing parties is referred to herein individually as a “Party” and collectively as the “Parties”. For the avoidance of doubt, this Agreement is only applicable to the free trial license of TiDB Enterprise, and if you have already signed an order form to purchase TiDB Enterprise subscription, then the terms of the order form, the general terms and Schedule A will prevail.
The following terms have the following meanings:
1.1. “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
1.2. “Confidential Information” means all information agreed in writing by both Parties to be confidential or clearly identified as confidential by the disclosing Party at the time of disclosure. All technology and specifications relating to TiDB Enterprise constitute the Confidential Information of PingCAP. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (iv) is independently developed by the other Party, without reference to the disclosing Party’s Confidential Information.
1.3. “TiDB Enterprise”, different from TiDB Community Access Edition, refers to the TiDB product provided to you with the core components (TiDB/TiKV/PD/TiFlash) and toolkit such as Deployment & Management tools, Monitoring & Alerting systems, Backup/Restore & Data Migration tools, Security Enhancement, and TiDB-Operator, etc.
1.4. “You” and “your” means the organization that downloads TiDB Enterprise for a free trial.
2. Grant of Trial License
PingCAP grants you a thirty (30)-day royalty-free, nontransferable and nonexclusive trial license to use TiDB Enterprise in your internal environment solely for evaluation and development purposes. You shall not use TiDB Enterprise for any other purpose, including quality assurance or production purposes without purchasing a TiDB Enterprise subscription. PingCAP provides the free trial license on an “AS-IS” basis without any warranty or support.
3. Your Responsibilities
3.1. If the software provided by PingCAP includes any software in binary or any other formats than source codes, you may not, and you agree not to or enable others to, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the software provided by PingCAP, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of open-sourced components included with TiDB Enterprise).
3.2. You shall comply with applicable laws in connection with your use of TiDB Enterprise, including any applicable U.S. export regulations and anti-corruption laws.
4.1. Each Party agrees not to disclose the other Party’s Confidential Information to any third party for a period of five (5) years from the date of the disclosing Party’s disclosure of the Confidential Information to the receiving Party. Each Party may disclose Confidential Information only to its employees, agents, Affiliates or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by law, provided, however, that, where legally permissible, the Recipient will provide advance notice to the disclosing Party to enable the disclosing Party to seek a protective order or other similar protection if feasible.
4.2. Confidential Information that is disclosed prior to termination of this Agreement will remain subject to this Agreement for the period set forth above. Upon written request by the disclosing Party, the receiving Party will promptly return or destroy all Confidential Information, except a copy of Confidential Information for legal compliance or archive purposes only. Any such retained Confidential Information will remain subject to the terms of this Section 4.
5.1. This Agreement does not transfer any right, title or interest in or to any intellectual property rights to any person or entity. Except as expressly set forth in this Agreement, no right or license is granted by a Party or its Affiliates to any person pursuant to this Agreement.
5.2. PingCAP or its licensors retain all ownership and intellectual property rights to TiDB Enterprise, and anything arising out of or in any way connected with the foregoing (including but not limited to ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials) that PingCAP has developed or delivered to you under this Agreement.
6. Disclaimer and Limitation of Liability
6.1. Disclaimer of Any Warranties. PINGCAP MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PINGCAP SOFTWARE OR ANY OTHER MATERIALS PROVIDED HEREUNDER. PINGCAP SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. PINGCAP’S SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
6.2. Limitation of Liability. IN NO EVENT SHALL PINGCAP’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED $500. PINGCAP WILL NOT BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF PINGCAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. Term and Termination
The term of this Agreement commences when you download TiDB Enterprise for a free trial, and will remain in effect for thirty (30) days thereafter. PingCAP may terminate this Agreement for any reason at any time. Upon termination or expiration of this Agreement, you shall immediately cease to use, and remove TiDB Enterprise from your internal environment. Provisions intended by their nature to survive termination of this Agreement survive termination. During the term of this Agreement and one year following termination, PingCAP may inspect your records relating to your use of TiDB Enterprise for the purposes of verifying compliance with this Agreement.
8.1. Governing Law and Claims. This Agreement, any claim, controversy or dispute related to this Agreement, are governed by and construed in accordance with the laws of the State of California. The Parties agree that the avoidance or early resolution of disputes is crucial for a smooth execution of this Agreement. The Parties shall use their best efforts to settle amicably all disputes arising out of or in connection with this Agreement or its interpretation. Any dispute, claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter, including breach thereof, will be finally resolved exclusively by the competent courts in San Mateo, California, United States.
8.2. Notices. PingCAP may provide any notice to you under this Agreement by (a) posting a notice on our website; or (b) sending a message to the email address designated by you. Notices provided by posting on our website will be effective upon posting and notices provided by email will be effective when PingCAP sends out the email. It is your responsibility to keep your email address current. If you have a legal dispute with us or if you wish to provide a notice under this Agreement, you shall promptly send written notice in English to: Deal Management Team, 1250 Borregas Ave, Office 131, Sunnyvale, CA 94089 and have a copy delivered via email to firstname.lastname@example.org.
8.3. Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If any translation of the English language version of this Agreement is provided, the English language version of this Agreement will control in the event of any conflict.
8.4. No Waivers. The failure by PingCAP to enforce any right or provision of this Agreement will not constitute a present or future waiver of such provision or right, nor will it limit our right to enforce such terms at a later time. No waiver by PingCAP of any provision or right hereunder will be deemed a further or continuing waiver of such provision or right or a waiver of any other provision or right. Any waiver by PingCAP hereunder must be in writing and signed by an authorized representative to be effective.
8.5. Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.