Redpanda Subscription Terms and Conditions
PLEASE READ THESE SUBSCRIPTION TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY REDPANDA DATA, INC. (“REDPANDA DATA”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS, THE CUSTOMER IDENTIFIED THEREIN (“COMPANY”) AGREES TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS AND SERVICE SPECIFIC TERMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA REDPANDA DATA’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY REDPANDA DATA SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. REDPANDA DATA AND COMPANY MAY EACH BE REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.” THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS.
Capitalized terms used but not defined herein shall have the meanings set forth in an applicable Order Form.
“Applicable Laws” means applicable local, state, national and foreign law, treaties, rule and regulations.
“BYOC Terms” means the BYOC Service Terms located at https://www.redpanda.com/legal/byoc-service-terms.
“Content” means all data and information submitted to the Offerings by or on behalf of Company.
“Documentation” means Redpanda Data’s applicable official user documentation for a specific Offering, including the documentation set forth at https://docs.redpanda.com/home/, as may be updated and amended from time to time.
“Feedback” means suggestions, comments or other feedback submitted or made available to Redpanda Data with respect to the Offerings.
“Fees” means the fees for the Offerings as set forth in each Order Form.
“Force Majeure Event” means any cause beyond the impacted Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
“Free Offerings” means any Offerings that Company accesses on a free, unpaid, trial, beta, testing or similar basis.
“Offerings” means collectively, any Services or Software.
“Operational and Usage Data” means data generated from the usage, configuration, deployment, access, or performance of an Offering. For the avoidance of doubt, Operational and Usage Data is not derived from Content
“Order Form” means a Redpanda Data Order Form or other interactive features made available through the Redpanda Data Website setting forth the Services, that in each case, references these Terms and has been executed or otherwise entered into by the Parties.
“Redpanda Data Website” means the website currently located at https://redpanda.com/, as may be updated and amended from time to time.
“Service Level Agreement” means the Redpanda Cloud Service Level Agreement located at https://www.redpanda.com/legal/redpanda-cloud-service-level-agreement.
“Services” means Redpanda Data’s services as Redpanda Data may offer to licensees as described on the applicable Order Form.
“Software” means Redpanda Data software as specified on the applicable Order Form, and includes any change, improvement, enhancement, extension, upgrade or other new version or release thereof that is developed or otherwise generally made available by Redpanda Data in connection with the Services and related Documentation.
“Streaming or Queuing Service” means a commercial offering that allows third parties to access the functionality of the Offerings by performing an action directly or indirectly that causes the creation of a topic therein. For clarity, a Streaming or Queuing Service would include, by way of example, the offering of the Services or Software as a broader service to Company’s customers or subscribers as a part of cloud services, hosting services, data center services and similarly situated offerings.
“Subscription Fee” means the then-current subscription fees as set forth on the applicable Order Form(s), and any other fees set forth on the pricing page of Redpanda Data Website, as may be updated and amended from time to time.
“Subscription Term” means, with respect to a specific Order Form, the initial subscription term and all subsequent renewal terms set forth in an Order Form.
“Support Terms” means the Redpanda Support Services Terms and Conditions located at https://www.redpanda.com/legal/redpanda-support-services-terms-and-conditions.
“Third Party Services” means websites, data, application programming interfaces or other services made available by third parties not controlled by Redpanda Data.
“Update” means any upgrade, patch, enhancement, or fix for the Offerings that Redpanda Data makes available to its customers generally without additional charge.
2. ORDER FORMS AND ACCESS TO THE OFFERINGS.
2.1. Order Forms. Upon entering into one or more Order Forms referencing these Terms, the terms of such Order Forms will be fully incorporated herein and made a part of the Agreement. Only the Offerings indicated in an applicable Order Form will be provided to Company under the terms of the Agreement. To the extent that there is any conflict between these Terms and the terms of any Order Form, the Order Form will govern and control.
2.2. Free Offerings. Unless otherwise indicated in an applicable Order Form, certain of Company’s obligations under the Agreement will not apply with respect to the Free Offerings, as further described below. Company acknowledges and agrees that Free Offerings are experimental in nature, are provided “AS IS”, and may not be functional on any machine or in any environment. Redpanda Data’s representations, warranties, support and uptime commitments and indemnities shall not apply to Free Offerings.
2.3. Support; Service Level Agreement; Service Specific Terms. Company’s access to and use of certain Offerings is subject to service specific terms, including as applicable, (i) the Support Terms, (ii) for Bring Your Own Cloud Offerings, the BYOC Terms, (iii) for Redpanda Data Cloud Services, the Service Level Agreement, or (iv) as otherwise referenced in an Order Form (such terms, the “Service Specific Terms”), which are fully incorporated herein and made part of the Agreement. To the extent that there is any conflict between these Terms and the Service Specific Terms, the Service Specific Terms will govern and control. To the extent that there is any conflict between the Service Specific Terms and the terms of any Order Form, the Order Form will govern and control.
2.4. Account Security and Usage. To the extent that any account is required to access the Offerings, Company will select secure and strong passwords for any such accounts, and implement and employ reasonable procedures and security measures to protect the confidentiality of Company’s username, password and any other account credentials. Company will not share its account credentials. Company is responsible for all usage or activity of Company’s account. Company will promptly notify Redpanda Data of any known or suspected unauthorized use of, or breach of security with respect to, Company’s account or the Offerings, as well as any violation of the Agreement that would reasonably be expected to result in any such breach of security. Company will cooperate with Redpanda Data in good faith and as reasonably necessary to remedy any unauthorized use of Company’s account or any security breach. Company is also responsible for the use of the Offerings by any person that Company knowingly or negligently enables or permits, even if Company did not authorize such use.
2.5. Third Party Services. Company acknowledges and agrees that the Offerings may operate on, with or using Third Party Services, including without limitation through integrations or connectors to such Third Party Services that are provided by Redpanda Data. Redpanda Data is not responsible for the operation of any Third Party Services nor the availability or operation of the Offerings to the extent such availability and operation is dependent upon Third Party Services. Company is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any information relating thereto) and for complying with any applicable terms or conditions thereof. Redpanda Data does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Company and a third party provider is solely between Company and such third party provider and is governed by such third party’s terms and conditions.
3. OWNERSHIP, LICENSE AND FEEDBACK.
3.1. Offerings. As between the Parties, Redpanda Data and its licensors retain all right, title and interest in and to the Offerings, the Documentation, and all derivative works thereof and all intellectual property, proprietary and moral rights therein and thereto. No rights or licenses are granted to any of the foregoing except as expressly and unambiguously set forth in the Agreement and nothing in this Agreement should be construed as transferring any aspects of such rights to Company or any third party. Redpanda Data and its suppliers reserve any and all rights not expressly granted in this Agreement.
3.2. License. For each Order Form, subject to Company’s compliance with the terms and conditions of the Agreement (including any limitations and restrictions set forth on the applicable Order Form) Redpanda Data hereby grants Company a limited, non-exclusive, personal, non-sublicensable, non-transferable right and license to internally access and use the Offerings specified in such Order Form during the applicable Subscription Term for Company’s internal business purposes only as provided herein and only in accordance with the Documentation.
3.3. Ownership; Feedback. The Offerings are made available for use or licensed, not sold. Redpanda Data owns and retains all right, title and interest (including all intellectual property rights) in and to the Offerings. Any feedback or suggestions that Company provides to Redpanda Data regarding its Offerings (e.g., bug fixes and features requests) is non-confidential and may be used by Redpanda Data for any purpose without acknowledgement or compensation; provided, Company will not be identified publicly as the source of the feedback or suggestion.
3.4. Use Restrictions. Company may not: (a) rent, lease, pledge, assign, or otherwise transfer or encumber rights to the Offerings; (b) use the Offerings for the benefit of a third party or as a Streaming or Queuing Service; (c) remove or otherwise alter any proprietary notices or labels from the Offerings or any portion thereof; (d) use the Offerings for its unintended purpose, including, without limitation, to build an application or product that is competitive with any Redpanda Data product or service; (e) interfere or attempt to interfere with the proper working of the Offerings or any activities conducted thereon or in connection therewith; (f) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Offerings (through use of manual or automated means); (g) bypass any measures Redpanda Data may use to prevent or restrict access to the Offerings (or other accounts, computer systems or networks connected thereto), including, without limitation, by creating multiple accounts for the same individual or corporate entity; (h) run any form of auto-responder or “spam” on the Offerings, or any process that runs or is activated while Company is not logged into the Offerings, or that otherwise interferes with the proper working of the Offerings or Third Party Services (including by placing an unreasonable load on the Offerings’ or Third Party Services’ infrastructure); (i) decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Offerings; (j) use the Offerings in any way that violates any Applicable Laws or any third party intellectual property, contractual or other proprietary rights.
3.5. Data Processing. Each party shall comply with the Data Processing Addendum set forth at https://www.redpanda.com/legal/data-processing-agreement, which is hereby incorporated by reference. Redpanda Data’s privacy notice is set forth at https://www.redpanda.com/legal/privacy-policy. Company acknowledges and agrees that Redpanda Data may use, retain and make available Operational and Usage Data for Redpanda Data’s business purposes including for purposes of improving, testing, and operating Redpanda Data’s products and services. Company represents and warrants that: (i) to the extent required under Applicable Law it has authorized Redpanda Data to process and transmit Content through the Offerings in accordance with this Agreement and as necessary to provide and perform the Offerings, (ii) it has a lawful basis in having Redpanda Data process the Content; (iii) that it is and will at all relevant times remain duly and effectively authorized to instruct Redpanda Data to carry out the Offerings, and (iv) it has made all necessary disclosures, obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of Content to Redpanda Data.
4. PAYMENT; TAXES.
4.1. Payment. Unless otherwise set forth in an applicable Order Form, Subscription Fees are due in advance upon the commencement of each Subscription Term. All fees under this Agreement are otherwise due upon the date(s) set forth in this Agreement or an applicable Order Form and are, unless otherwise set forth in an applicable Order Form, payable within thirty (30) days from the date of Redpanda Data’s invoice. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in the quoted currency and are non-refundable.
4.2. Overages and Audits. If Company exceeds any user or usage limitations set forth on an Order Form, then (a) Redpanda Data shall invoice Company for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Redpanda Data’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the applicable Subscription Term, and (b) if such Subscription Term renews, such renewal shall include the additional fees for such excess users and usage. Company must maintain complete and accurate records with respect to use of the Offerings and provide such records to Redpanda Data for inspection or audit upon Redpanda Data’s reasonable request.
4.3. Late Payment. Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and a half percent (1.5%) per month (eighteen percent (18%) per annum) on the remaining amount required to be paid, or at the highest amount permitted by applicable law (if lower), such interest to accrue on a daily basis from the payable date until the remaining amount is paid.
4.4. Taxes. All Subscription Fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Company shall be responsible for payment of such taxes and duties of any kind, provided however that Redpanda Data shall be responsible for payment of taxes levied or imposed based upon Redpanda Data’s net income. Without limitation, Company will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Redpanda Data with an exemption certificate acceptable to the applicable authorities.
5. TERM AND TERMINATION.
5.1. Term. This Agreement shall commence on the Effective Date and continue until and continues until all subscriptions hereunder have expired or have been terminated.
5.2. Termination for Material Breach. Either Party may terminate this Agreement immediately in the event the other Party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach.
5.3. Suspension of Access. Without limiting Redpanda Data’s termination rights and remedies hereunder, Redpanda Data may suspend or limit Company’s access to or use of the Offerings if (a) Company’s payment obligations are more than ten (10) days past due; or (b) Redpanda Data determines, in its reasonable discretion, that Company’s use of the Offerings is likely to result in: (i) a breach of security, (ii) harm to Redpanda Data or a Third Party Service provider, (iii) degradation of or damage to the Offerings or Third Party Services, or (iv) breach of the Agreement.
5.4. Survival. Sections 1, 2, 3, 3.1, 3.3, 3.4, 3.5, 4, 5, 7, 8, 9, and 10 of this Agreement shall survive the termination of this Agreement for any reason.
6. WARRANTY AND DISCLAIMER.
6.1. Warranties. Redpanda Data warrants to Company that: (a) the Software will materially perform in accordance with the applicable Documentation for the Subscription Term; and (b) any Services performed by Redpanda Data under this Agreement will be performed in a workmanlike manner, in accordance with general industry standards.
6.2. Exclusions. Redpanda Data’s warranties in this Section 6 do not extend to problems that result from: (a) Company’s failure to implement Updates issued by Redpanda Data during the warranty period; (b) any alterations or additions to Redpanda Data not performed by or at the direction of Redpanda Data; (c) failures that are not reproducible by Redpanda Data; (d) operation of the Software in violation of this Agreement or not in accordance with its Documentation; (e) failures caused by software, hardware or products not licensed or provided by Redpanda Data; (f) Free Offerings; or (g) Third Party Services.
6.3. Remedies. In the event of a breach of a warranty under this Section 6, Redpanda Data will, at its discretion and cost, either repair, replace or re-perform the applicable Offerings or refund a portion of Subscription Fees previously paid to Redpanda Data that are associated with the defective Offerings, or otherwise make support services available to Company in accordance with Company’s applicable support policies and procedures for such Offerings. This is Company’s exclusive remedy, and Redpanda Data’s sole liability, arising in connection with the limited warranties herein.
6.4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OFFERINGS ARE PROVIDED TO COMPANY "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE. REDPANDA DATA AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. REDPANDA DATA AND ITS SUPPLIERS DO NOT WARRANT THAT THE OFFERINGS WILL MEET COMPANY'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
7. CONFIDENTIALITY.
Each Party (“Receiving Party”) agrees that all code, inventions, algorithms, know-how and ideas and all other business, technical and financial information it obtains from the other Party (“Disclosing Party”) are the confidential property of the Disclosing Party (“Confidential Information” of the Disclosing Party). Except with the consent of the Disclosing Party, the Receiving Party shall hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. The Receiving Party’s nondisclosure obligation shall not apply to information it can document: (a) is generally available to the public other than through breach of this Agreement; (b) is rightfully disclosed to the Receiving Party by a third party; or (c) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party. Upon expiration or termination of this Agreement for any reason, each Party will return all copies of all Confidential Information of the other Party in its possession or control. Receiving Party may disclose Confidential Information as required by government or judicial order, provided the Receiving Party gives the Disclosing Party written notice prior to such disclosure (to the extent legally permissible) and complies with any protective order (or equivalent) imposed on such disclosure. The terms of confidentiality under this Agreement shall not be construed to limit either Party’s right to independently develop or acquire products without use of the other Party’s Confidential Information.
8. INDEMNIFICATION.
8.1. Infringement Indemnity. Redpanda Data will defend, indemnify and hold Company harmless from and against any third party claims, liabilities or expenses incurred (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or a non-appealable judgement by a court (“Losses”), to the extent arising from any claim or allegation by an unaffiliated third party that the Software infringes or misappropriates a valid patent, copyright or trade secret right of a third party. If any Software becomes or, in Redpanda Data’s opinion, is likely to become, the subject of an injunction, Redpanda Data may, at its option, (a) procure for Company the right to continue using such Software, (b) replace or modify such Software so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not commercially practicable, then (c) terminate Company’s license to the allegedly infringing Software and refund to Company a prorated portion of the prepaid and unearned fees for such infringing Software. The foregoing states the entire liability of Redpanda Data with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights. Redpanda Data will have no obligation under this Section 8.1 with respect to Free Offerings.\Exclusions. The foregoing obligations shall not apply to: (a) Software modified by any party other than Redpanda Data, if the alleged infringement relates to such modification, (b) Software combined or bundled with any products, processes or materials not provided by Redpanda Data where the alleged infringement relates to such combination, (c) use of a version of the Software other than the version that was current at the time of such use, as long as a non-infringing version had been released, (d) any Software created to Company’s specifications, (e) infringement or misappropriation of any proprietary right in which Company has an interest, or (f) Third Party Services. Company will defend, indemnify and hold Redpanda Data harmless against any Losses arising from any such claim or allegation.
8.2. Exclusions. The foregoing obligations shall not apply to: (a) Software modified by any party other than Redpanda Data, if the alleged infringement relates to such modification, (b) Software combined or bundled with any products, processes or materials not provided by Redpanda Data where the alleged infringement relates to such combination, (c) use of a version of the Software other than the version that was current at the time of such use, as long as a non-infringing version had been released, (d) any Software created to Company’s specifications, (e) infringement or misappropriation of any proprietary right in which Company has an interest, or (f) Third Party Services. Company will defend, indemnify and hold Redpanda Data harmless against any Losses arising from any such claim or allegation.
8.3. Limited Company Indemnity. Company will defend, indemnify and hold Redpanda Data harmless from and against any Losses to the extent arising from any claim arising out of or in connection with Company’s breach of Section 3.4 (Use Restrictions) or use of Third Party Services in breach of the Agreement.
8.4. Indemnity Procedure. Each Party’s indemnification obligations hereunder will be conditioned upon the indemnified Party providing the indemnifying Party with: (a) prompt written notice of any claim (provided that a failure to provide such notice will only relieve the indemnifying Party of its indemnity obligations to the extent that the indemnifying Party is materially prejudiced by such failure); (b) the option to assume sole control over the defense and settlement of any claim (provided that the indemnified Party may participate in such defense and settlement at its or their own expense); and (c) reasonable information and assistance in connection with such defense and settlement (at the indemnifying Party’s expense).
9. LIMITATION OF LIABILITY.
9.1. Exclusions. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR INDEMNITY OBLIGATIONS, OF EITHER PARTY, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Aggregate Liability. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR INDEMNITY PARTY OBLIGATIONS, OF EITHER PARTY, IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO REDPANDA DATA (IN THE CASE OF COMPANY) OR ACTUALLY PAID TO REDPANDA DATA BY COMPANY (IN THE CASE OF REDPANDA DATA) DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE.
10. MISCELLANEOUS.
10.1. Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
10.2. Communications and Current Information. As part of or in connection with the Offerings, Company may receive communications, including email communications. Company must provide current and accurate contact information and promptly update Redpanda Data upon any changes to this contact information. If Company fails to provide any of the foregoing, Company acknowledges and agrees that certain Offerings may not be available to Company.
10.3. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. There are no intended third party beneficiaries of this Agreement.
10.4. No Waiver. Failure by either Party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
10.5. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either Party initiates an action in connection with this Agreement or any other dispute between the Parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in San Francisco, California.
10.6. Notices. Unless otherwise agreed to by the Parties, any notice, authorization, or consent (“Notice”) required or permitted to be given or delivered under this Agreement shall be in writing and addressed and delivered to Redpanda Data at the address specified on the Redpanda Data Website or to Company at the contact information provided as part of the registration for the Offerings. Notice shall be deemed to have been received by a Party, and shall be effective: (a) on the fifth business day after which such Notice is deposited prepaid in the local postal system; (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered or (c) one business day after being sent electronically with a confirmed delivery receipt. Either Party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
10.7. Export Law Assurances. Company acknowledges that the Software may be subject to export and import control laws, and agrees to comply fully with those laws in connection with the Software. Company agrees that the Software is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Company hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
10.8. U.S. Government Restricted Rights. If the Offerings are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such Software, including its rights to use, modify, reproduce, release, perform, display or disclose software or any Documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement unless such terms are inconsistent with United States federal law. If this Agreement fails to meet the U.S. Government’s needs or is inconsistent in any way with Federal Law and the parties cannot reach a mutual agreement on terms for this Agreement, the government agrees to terminate its use of the Offerings. This U.S. Government rights in this Section are in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses government rights in the Offerings, computer software or technical data under this Agreement.
10.9. Force Majeure. Except for performance of a payment obligation, neither Party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of a Force Majeure Event.
10.10. Entire Agreement. These Terms together with all applicable Order Forms, Service Specific Terms and any other Exhibits that reference these Terms comprise the entire agreement between the Parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the subject matter of this Agreement. Redpanda Data reserves the right to amend or modify this Agreement at any time and in any manner by providing reasonable notice to the Company. Company agrees that such reasonable notice may be provided by posting on the Redpanda Data Website; Company's start, registration, or download pages; email; or other written notice. Except as otherwise set forth herein, this Agreement may be amended or modified only in a writing executed by both Parties. Redpanda Data’s acceptance of any document submitted by Company to Redpanda Data shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of Redpanda Data.