INFLUXDATA INC.
InfluxDB® Clustered
Software License Agreement
v1.0 07-24
NOTICE TO USER: THIS AGREEMENT GOVERNS INSTALLATION AND USE OF THE INFLUXDATA SOFTWARE DESCRIBED ABOVE AND ACCOMPANYING THIS README FILE. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BY COPYING, INSTALLING, RUNNING OR USING THE SOFTWARE, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT INSTALLS, RUNS OR USES THE SOFTWARE OR AGAINST ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT, OR CONTRACTOR) THAT INSTALLS, RUNS OR USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.  YOU MAY HAVE ANOTHER WRITTEN AGREEMENT WITH INFLUXDATA THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.  
1.	Definitions
For the purposes of this Agreement, the following capitalized words and phrases are ascribed the following meanings:
“Documentation” means the Software user manuals and other Software documentation, including updated or revised documentation, provided to Licensee by InfluxData.
“License Term” means the six (6) month period commencing on Licensee’s first installation of the Software (or such longer period as InfluxData may authorize in its discretion in a written instrument executed by an officer of InfluxData).
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Software” means the InfluxData software described above and accompanying this readme file.
The following words will be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or items will not be exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation; and (v) “may” is, unless the context requires otherwise, an expression of permission, but not an obligation.
2.	Rights to Use Software; Delivery
2.1.	Copying, Installation and Operation. Subject to the terms and conditions of this Agreement, InfluxData hereby grants Licensee the following non-exclusive, non-transferable, worldwide licenses, without right to sub-license, for the License Term, solely for its internal purposes: (a) to reproduce a reasonable number of copies of the Software consistent with Licensee’s standard non-production testing, backup and failover practices; (b) to distribute such copies to and install them on computers owned by Licensee or under its control; (c) to run the Software on the computers described in Section 2.1(b) above; and (d) to reproduce copies of the Documentation to the extent reasonably necessary to evaluate the Software, and to distribute and display such copies internally within Licensee to its employees and service providers. 
2.2.	Reservations. All rights to the Software, Documentation and all related and other Intellectual Property Rights of InfluxData not expressly granted to Licensee are reserved to InfluxData. Licensee may not make the Software or Documentation available to any third parties as part of any rental, leasing, time-sharing, SaaS, or service bureau arrangement. All Software provided under this Agreement is licensed, not sold.
2.3.	Proprietary Rights; Reverse Engineering. As between InfluxData and Licensee, InfluxData will own all Intellectual Property Rights in or to the Software and Documentation, and any derivative works of or improvements or enhancements to any of the foregoing created or developed by or on behalf of InfluxData, or created or developed by or on behalf of Licensee in violation of any of InfluxData’s Intellectual Property Rights. Licensee acknowledges that the Software (including its structure, organization and code) constitute trade secrets and are the valuable property of InfluxData. The Software is Confidential Information of InfluxData under any non-disclosure agreement or other obligations of confidentiality between InfluxData and Licensee. Licensee will not remove, obscure or alter this readme file or any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or Documentation. Except to the extent (if any) permitted by applicable law or required by InfluxData’s licensors, Licensee will not decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the executable code supplied under this Agreement or use it to create a derivative work.
3.	InfluxData’s Warranties
3.1.	Warranties. InfluxData warrants to Licensee that:
3.1.1.	Viruses. InfluxData will use all commercially reasonable efforts, using applicable current industry practices, to ensure that the Software, in the form provided by InfluxData to Licensee under this Agreement, contains no computer virus, Trojan horse, worm or other similar malicious code. 
3.1.2.	Infringement. The Software and any services performed by InfluxData under this Agreement, as provided by InfluxData to Licensee, do not infringe any third party patent existing under the laws of the United States, Canada, any member state of the European Economic Area, the United Kingdom, Switzerland, Australia, New Zealand, Singapore, South Korea or Japan, or infringe any third party copyright, trademark or service mark, or result from misappropriation by InfluxData of any third party’s trade secrets.
3.2.	Scope. The warranties in this Agreement are for the sole benefit of Licensee, and may not be extended to any other person or entity.
3.3.	Infringement Remedy. Licensee’s sole and exclusive remedy for any non-conformance with the warranty in Section 3.1.3 above will be InfluxData’s defense and indemnification obligations under Section 4 below.
3.4.	Disclaimer Of Implied Warranties. Except as expressly warranted in this Agreement, InfluxData makes no representation or warranty in connection with the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE AND ANY STATUTORY REMEDY.
4.	InfluxData’s Infringement Indemnification
4.1.	Defense and Indemnity. If any third party makes any claim against Licensee that the Software or any services performed by InfluxData under this Agreement, in the form provided by InfluxData to Licensee, infringe any third party patent existing under the laws of the United States, Canada, any member state of the European Economic Area, the United Kingdom, Switzerland, Australia, New Zealand, Singapore, South Korea or Japan, or infringe any third party copyright, trademark or service mark, or result from misappropriation by InfluxData of any third party’s trade secrets (collectively, an “Infringement”) then, upon notification of such claim, InfluxData will, at its sole cost and expense, defend Licensee against such claim and any related proceeding brought by such third party against Licensee. InfluxData will indemnify Licensee from and against damages, (including taxes, fees, fines, penalties, and interest) (collectively “Damages”) required to be paid by Licensee to the third party as a result of the Infringement. InfluxData’s obligations under this Section 5.1 are subject to Licensee’s compliance with the “Indemnification Conditions” (defined below).
“Indemnification Conditions” means the following obligations of a party entitled to defense or indemnification under this Agreement: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party will relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defense of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement; and (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expense.
4.2.	InfluxData’s Mitigation Rights. If the Software is, or in InfluxData’s reasonable opinion is likely to become, the subject of a claim of infringement of any Intellectual Property Right of any third party, then InfluxData may: (i) procure the continuing right for Licensee to use the Software; (ii) replace or modify the Software in a functionally equivalent manner so that it no longer infringes; or (iii) terminate the applicable Sales Order and License Term and refund to Licensee the fees paid by Licensee to InfluxData under the Sales Order.
4.3.	Exclusions. Notwithstanding the foregoing, InfluxData will have no obligation under this Section 5 or otherwise with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Software not in accordance with this Agreement or the Documentation, (ii) the combination of the Software with other equipment, software, services or data not supplied by InfluxData, to the extent the infringement would not have occurred but for such combination, iii) InfluxData’s compliance with Licensee’s written requirements, specifications or instructions, (iv) any use of any release of the Software other than the most current release made available to Licensee after notice from InfluxData that Licensee must upgrade to such release to avoid an infringement or misappropriation claim and Licensee has had a reasonable time in which to implement such upgrade, or (v) any modification of the Software not made by InfluxData or at its express direction.
5.	Term and Termination
5.1.	Termination for Cause. If either party materially breaches any of its obligations under this Agreement and fails to cure such breach within ten (10) days from the date it receives from the non-breaching party a notice of the breach and a demand for cure, then the non-breaching party may terminate the License Term immediately on notice. 
5.2.	Obligations on Termination. Upon any termination or expiration of this Agreement or the License Term, (i) Licensee will destroy all copies of the Software and the Documentation within its custody or control within twenty (20) days of such termination and, if requested by InfluxData, immediately certify that all copies of the Software have been destroyed and all use of the Software has been discontinued; and (ii) each party will return or destroy all copies of any Confidential Information of the other, as certified by an authorized representative of the returning party.
5.3.	Survival. The provisions of Sections 1, 2.3, 3.4, 4, 5.2, 5.3, and 6-8 of this Agreement, will survive any termination or expiration of this Agreement.
6.	Limitations and Exclusions of Liability
6.1.	 Exclusion of Consequential Damages. SUBJECT TO SECTION 6.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THIS AGREEMENT, ANY RELATED AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT. 
6.2.	 Liability Cap. Subject to Section 6.3, neither party’s maximum aggregate liability arising out of this Agreement will in any event exceed the fees paid to InfluxData under the Sales Order giving rise to the claim, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise. 
6.3.	 Exceptions.
6.3.1.	Sections 6.1 (Exclusion of Consequential Damages) and 6.2 (Liability Cap) do not apply to either party’s (a) willful misconduct or gross negligence, (b) infringement or misappropriation of any of the other’s Intellectual Property Rights, or (c) liability or loss which may not be limited by applicable law.
6.3.2.	 Notwithstanding Section 6.1 (Exclusion of Consequential Damages), the following will be deemed direct damages for purposes of this Agreement: (a) any amounts payable by an indemnified party to a third party pursuant to a judgment or to a settlement agreement approved in writing by an indemnifying party, liability for which falls within the indemnifying party’s indemnification obligations under this Agreement, and (b) all fees, if any, payable by Licensee under this Agreement.
6.3.3.	 Section 8.2 (Liability Cap) does not apply to (i) InfluxData’s defense and indemnification obligations, nor (ii) Licensee’s obligations to pay fees and expenses when due and payable under this Agreement.
7.	Dispute Resolution
7.1.	Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the internal laws of the states or countries specified in the table below, without regard to conflicts of laws principles. In the event of any controversy or claim arising out of or relating to this Agreement, or its breach or interpretation, the parties will submit to the jurisdiction of and venue in the applicable courts or arbitration bodies specified in the table below. Each party waives all defenses of lack of personal jurisdiction and inconvenient forum. 
If the Licensee’s address in the Sales Order is in:	The governing law is that of:	The arbitration bodies or courts having exclusive jurisdiction are:
The USA, Mexico, Canada or any country in Central or South America or the Caribbean, or any country falling outside the regions listed in this table	California, USA, and controlling United States federal law	Arbitration in San Francisco, California, USA under the Commercial Arbitration Rules and the Optional Rules for Emergency Measures of Protection of the American Arbitration Association; those rules are incorporated by reference in this clause.1
Any country in the United Kingdom, the Middle East, or Africa 	England	Arbitration in London, England under the Rules of the London Court of International Arbitration (LCIA); those rules are incorporated by reference in this clause.1
Any country in the European Economic Area or Switzerland
Republic of Ireland
Arbitration in Dublin, Ireland under the UNCITRAL Arbitration Rules; those rules are incorporated by reference in this clause.1

Any country located in Asia or the Pacific region, other than Australia and New Zealand	Singapore	Arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre then in force; those rules are incorporated by reference in this clause.1 
Australia or New Zealand	New South Wales, Australia	Courts located in Sydney, New South Wales, Australia
Note 1:	The Tribunal will consist of one independent, disinterested arbitrator. The language of the arbitration will be English. The determination of the arbitrator will be final, conclusive and binding. Judgment upon the award rendered may be entered in any court of any state or country having jurisdiction.
7.2.	 Legal Expenses. If any proceeding is brought by either party to enforce or interpret any term or provision of this Agreement, the substantially prevailing party in such proceeding will be entitled to recover, in addition to all other relief arising out of this Agreement, its reasonable attorneys' and other experts' (including without limitation accountants) fees and expenses.  
8.	Miscellaneous Provisions
8.1.	Compliance with Laws – Export Control; Anti-Bribery; Modern Slavery. Each party will comply with all laws and regulations applicable to it, including U.S. export control laws. Neither party will have any liability to the other for any non-performance of their obligations under this Agreement to the extent that the non-performance is mandated by applicable law. Each party represents and warrants to the other that neither it nor its Affiliates, nor any of its or their users, officers or directors, are persons, entities or organizations with whom the other party is prohibited from dealing (including provision of Software, products or services) by virtue of any applicable law, regulation, or executive order, including US export control laws, and names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List. Each party will comply with the requirements of applicable anti-bribery and modern slavery laws, including: (i) the Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010; and (ii) the UK Modern Slavery Act 2015, California Transparency in Supply Chains Act 2010 and any applicable anti-slavery laws.
8.2.	Equitable Relief. Each of Licensee and InfluxData acknowledges that damages will be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of a Party’s Intellectual Property Rights or Confidential Information. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to seek in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of such obligations in this Agreement.
8.3.	Captions and Headings. The captions and headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.
8.4.	Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
8.5.	Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.
8.6.	Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party. If the law governing this Agreement is English law, then a person who is not a party to this Agreement will not have any rights under the Contracts (Rights of Third Parties) Act 1999) to enforce any term of this Agreement. 
8.7.	Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, which will not be unreasonably withheld, provided, however that either party may assign all, but not some of its rights and obligations under this Agreement to any of its Affiliates, or to any entity into or with which it is merged, or that acquires all or substantially all of its assets, upon notice to the other party, but without requiring consent. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
8.8.	Notices. InfluxData will provide Licensee with notices that affect InfluxData’s Licensees generally (e.g., notices that relate to updates to the Software) via e-mail or the support program platform. InfluxData will provide Licensee with any legal notices by pre-paid first class mail, air courier or email to the mailing or email address Licensee provided InfluxData on the applicable Sales Order, or during Licensee’s registration for the Subscription Services, or to a substitute, updated mailing or email address that Licensee has provided to InfluxData for these purposes. Licensee is responsible for keeping its mailing and email address current with InfluxData. Except as otherwise specified in this Agreement, all notices to be given to InfluxData under this Agreement must be in writing and sent by email to legal@influxdata.com, or by prepaid first class mail or air courier at the address specified on the first page of this Agreement, or to a substitute, updated address notified by InfluxData, marked “Attention: Legal Department”. Notices sent electronically will be deemed received within 1 business day of dispatch. Notices sent by prepaid first class mail will be deemed received within 5 business days of dispatch (however, notices sent by mail to addressees in a different country from that of the sender will be deemed received upon delivery). Notices sent by air courier, or personally delivered, will be deemed received upon delivery.
8.9.	Governing Language. The governing language for this Agreement and its related transactions, for any notices or other documents transmitted or delivered under this Agreement, and for the negotiation and resolution of any dispute or other matter between the parties, will be the English language.  If there is any conflict between the provisions of any notice or document and an English version of the notice or document (including this Agreement), the provisions of the English version will prevail.  Licensee waives any rights it may have under any law in any state or country to have the Agreement written in any language other than English. In transactions between the parties, a decimal point will be indicated by a period, and not by a comma. 
8.10.	Entire Agreement; Amendments. This Agreement constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties. Any additional, supplementary or conflicting terms supplied by either party (whether in hard copy or electronic form), including those contained on or within any invoice, purchase order, standard terms of purchase, vendor onboarding documents, or any click through license agreement or terms of use, are specifically and expressly rejected by each party. In the event of any conflict between the provisions of this Agreement and any Sales Order, the provisions of this Agreement will prevail, except to the extent expressly specified otherwise in the Sales Order.