TiDB Cloud Services Agreement

This TiDB Cloud Services Agreement (this “CSA”) is an agreement between the applicable PingCAP Contracting Entity (as defined below) (“PingCAP”, “we”, “us”, or “our”) and you or the entity you represent (“you” or “your”), which contains the terms and conditions that govern your access to and use of the TiDB Cloud Services (as defined below). This CSA takes effect when you check a box confirming that you agree with the terms of this CSA and click an “I Accept” or similar button or, if earlier, when you create any TiDB Cloud Services cluster.

1. Definitions

2. Registration and Your Account

3. Use of the Services

4. Fees and Payment

5. Term and Termination

6. Ownership and Licenses of IP Rights

7. Content Protection and Data Privacy

7.1. You will ensure that Your Content, and your use of it, complies with this CSA and any applicable Law. You are responsible for properly configuring and using the TiDB Cloud Services and taking all necessary steps to maintain appropriate security, protection and backup of Your Content.

7.2. Protected Health Information. You are not permitted to store or process any patient, medical or other protected health information (as defined under the Health Insurance Portability and Accountability Act, as supplemented and amended) using the TiDB Cloud Services unless you enter into a Business Associate Agreement with us. Notwithstanding anything to the contrary in this CSA or applicable Law, unless a Business Associate Agreement has been entered into by you and us, we will have no liability hereunder with respect to your use or processing of any protected health information. Upon execution by the parties of a Business Associate Agreement, its terms are hereby incorporated by reference into this CSA.

7.3. PingCAP will use commercially reasonable efforts, no less rigorous than generally accepted industry standards and requirements by applicable Laws, to maintain appropriate administrative and technical safeguards for protection of the security, confidentiality and integrity of Your Content. The security procedures implemented by PingCAP include: (a) strict access control to Your Content; (b) encryption of Your Content when stored or being transmitted; and (c) risk management processes designed for data security. We and our Affiliates may perform certain activities ancillary to the TiDB Cloud Services (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations or through the use of subcontractors throughout the world; provided that, notwithstanding any such subcontracting, PingCAP will at all times remain responsible for the provision of the TiDB Cloud Services.

7.4. PingCAP will not (a) disclose Your Content except as expressly permitted in writing by you (including pursuant to this CSA) or (b) access Your Content except to provide the TiDB Cloud Services and prevent or address service or technical problems, or at your request in connection with technical support matters. In the event of any data breach or other incident which would compromise the security of Your Content or if Your Content has been or is reasonably expected to be subject to a use or disclosure not authorized by this CSA, PingCAP shall (i) promptly notify you in writing of the occurrence of such incident; (ii) conduct a reasonable investigation and analysis of such incident; and (iii) develop and implement an appropriate remedial plan to the extent such cause is within PingCAP’s control.

7.5. The parties will comply with the DPA which is incorporated by reference into this CSA.

• 8. Indemnification

• 8.1. Indemnity by PingCAP. PingCAP will (a) defend you from and against any claim initiated by a third party alleging that the TiDB Cloud Services or your use thereof in accordance with this CSA infringes such third party’s IP Rights and (b) indemnify and hold you harmless from and against any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) awarded against you or agreed in settlement by us arising out of or result from such the third-party claim; provided, however, that the foregoing shall not apply with respect to any such claim to the extent arising from your use of the TiDB Cloud Services in combination with any other software, service or technology not provided by PingCAP. Should the TiDB Cloud Services become or, in PingCAP’s reasonable opinion be likely to become, the subject of any such claim, PingCAP may, at its option and expense: (i) procure for you the right to continue to use the TiDB Cloud Services as contemplated by this CSA; (ii) replace or modify the TiDB Cloud Services to render its use in accordance with this CSA non-infringing; or (iii) with thirty (30) days’ notice to you, terminate this CSA and refund to you, in the same currency that the fees were paid by you, any prepaid fees covering the remainder of the term after the termination date.

  8.2. Indemnity by You. You will (a) defend PingCAP from and against any claim by a third party arising from or relating to: (i) Your Content, including its use and any combination of Your Content with other software, services, technology, data or processes, including any such claim involving alleged infringement or misappropriation of IP Rights; (ii) your use of the TiDB Cloud Services (including any activities under your account and any use thereof by your employees and personnel); (iii) any product, service or technology used by you in connection with or related to the TiDB Cloud Services; or (iv) any breach of this CSA or violation of applicable Law by you, in each case of (i)-(iv), to the extent that such third-party claim is not subject to PingCAP’s indemnity obligations in Section 8.1 and (b) indemnify and hold PingCAP harmless from and against any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) awarded against PingCAP or agreed in settlement by you arising out of or resulting from such the third-party claim.

  8.3. Indemnity Procedures. In the event of any potential indemnity obligation under this Section 8, the indemnified party will: (a) promptly notify the indemnifying party in writing of the third-party claim in accordance with Section 15.5; (b) provide the indemnifying party with sole control and authority over the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense; and (c) upon request of the indemnifying party, and at the indemnifying party’s expense, provide all cooperation reasonably requested by the indemnifying party. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 8 shall not relieve the indemnifying party of its obligations under this Section 8 except to the extent that the indemnifying party was actually prejudiced by such delay or failure to provide notice in accordance with this Section 8.3. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, which consent is not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 8 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

  8.4. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
• 9. Representations & Warranties; Disclaimers

• 9.1. Each Party warrants that it has the authority and right to enter into this CSA and that this CSA constitutes a valid and binding agreement between the Parties.

  9.2. PingCAP warrants that the TiDB Cloud Services will operate in substantial conformity with the applicable documentation. If PingCAP is unable to correct any reported nonconformity with this warranty, you may terminate this CSA and, as your sole remedy, you will be entitled to receive a refund of any prepaid fees covering the remainder of the term after the termination date. This warranty will not apply if the error or non-conformance was caused by misuse of the TiDB Cloud Services, any modifications to the TiDB Cloud Services by anyone other than PingCAP, or third-party hardware, software, or services used in connection with the TiDB Cloud Services.

  9.3. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.2 OR THE SLA, (a) THE TIDB CLOUD SERVICES AND ITS FUNCTIONALITY ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. PINGCAP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY’S RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PINGCAP OR ITS REPRESENTATIVES SHALL BE DEEMED TO CREATE A WARRANTY AND (b) NEITHER PINGCAP NOR ITS REPRESENTATIVES REPRESENT OR WARRANT THAT THE TIDB CLOUD SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, ACCURATE OR COMPLETE, THAT THE TIDB CLOUD SERVICES WILL COMPLY WITH ANY PARTICULAR REGULATORY REQUIREMENTS OR THAT PINGCAP WILL CORRECT ANY PARTICULAR BUGS OR ERRORS. YOU ACKNOWLEDGE THAT WE CANNOT GUARANTEE (i) THE SECURITY OF OUR SYSTEMS OR (ii) THE QUALITY OR ACCURACY OF ANY PARTICULAR RESULTS WITH RESPECT TO YOUR USE OF THE TIDB CLOUD SERVICES.
• 10. Limitations of Liability

• 10.1. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, PINGCAP’S TOTAL LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY YOU UP TO A MAXIMUM AMOUNT OF THE FEES PAID BY YOU TO PINGCAP UNDER THE APPLICABLE ORDER FORM; PROVIDED THAT, REGARDLESS OF ANY LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS CSA MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER YOU BECOME AWARE OF, OR SHOULD REASONABLY HAVE BECOME AWARE OF, THE FACTS GIVING RISE TO THE CAUSE OF ACTION. WITHOUT LIMITING THE FOREGOING, NEITHER PINGCAP NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, OR FOR DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS, UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS CSA, EVEN IF PINGCAP HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES.

  10.2. THE LIMITATIONS SET FORTH IN THIS SECTION 10 WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS CSA AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH PINGCAP WOULD NOT HAVE ENTERED INTO THIS CSA.

  10.3. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.

• 11. Nondisclosure

• 11.1. PingCAP and you may have access to Confidential Information of the other party. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidentiality of similar nature (but not less than a reasonable degree of care) to not (a) use any Confidential Information of the other party for any purpose other than in connection with the provision or use, as applicable, of the TiDB Cloud Services and (b) except as otherwise agreed by the disclosing party, disclose the other party’s Confidential Information to any third party other than to the receiving party’s Affiliates and its and their employees and contractors who require access for purposes consistent with this CSA and who are bound by confidentiality obligations that are at least as protective of the Confidential Information as the terms set forth herein. In addition, each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental body as required by Law; provided that, to the extent legally permitted, the receiving party provides the disclosing party with prior written notice and cooperates in any effort to seek confidential treatment of any such Confidential Information.

  11.2. Each party, as the receiving party, acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

  11.3. The confidentiality obligations set forth in this Section 11 shall continue for a period of five (5) years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; provided, however, that PingCAP will protect the confidentiality of Your Content stored in the TiDB Cloud Services for as long as such data remains in the TiDB Cloud Services or otherwise in PingCAP’s possession or control.

• 12. Export; Commercial Computer Software

• 12.1. The TiDB Cloud Services utilize software and technology or provide access to software, technology, or technical information that may be subject to export control laws, conventions, and regulations, including the United States Export Administration Regulations and other rules and regulations of the Bureau of Industry and Security of the United States Department of Commerce and the rules and regulations of the Office of Foreign Assets Control of the United States Department of the Treasury’s US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the TiDB Cloud Services or the software, technical information, or technology included therein to, or make the TiDB Cloud Services or the software, technical information, or technology included therein accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. You shall comply with all Laws prohibiting transfers, exports and re-exports to certain end-users and destinations or for certain end-uses (including nuclear, chemical, or biological weapons proliferation, or development of missile technology), unless written authorization is obtained from the appropriate government. PingCAP may suspend performance of the TiDB Cloud Services in its sole discretion if PingCAP believes that you are in violation or threatened violation of applicable Laws.

  12.2. PingCAP provides the TiDB Cloud Services, including all related software and technology, for ultimate federal U.S. government end use solely in accordance with the following: Government technical data and software rights related to the TiDB Cloud Services which include only those rights customarily provided to the public as defined in this CSA. This customary commercial license is provided in accordance with DFARS 227.7201 through 227.7202-4, DFARS 252.227-7015, FAR, 12.211, FAR 12.212, FAR 27.405-3, FAR 52.227-19, or FAR 52.227-14 (ALT III), or successor provisions, as applicable. If a U.S. federal government agency has a need for rights not granted under this CSA, it must negotiate with PingCAP to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

• 13. Force Majeure
• Neither party shall be responsible for failure or delay of performance if caused by any cause beyond such party’s reasonable control, including war, hostility, or sabotage, catastrophe, acts of terrorism (including cyberterrorism), acts of God, pandemic, epidemic, electrical or telecommunication (including Internet) outage, fire, explosion, earthquake, flood, severe storm, strike, embargo, labor dispute, quarantine, acts of civil or military authority, acts or omissions of Internet traffic carriers, acts or omissions of regulatory or governmental bodies (including the passage of Laws, the denial or cancellation of any export, import or other license, or other acts of government that impact the delivery of any services). Both parties will use reasonable efforts to mitigate the effect of any such force majeure event. If such an event continues for more than thirty (30) days, either party may cancel unperformed services and affected orders upon written notice. This Section 13 does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for products and services ordered or delivered hereunder.
• 14. Governing Law and Claims
• This CSA, and any claim, controversy or dispute related to this CSA, are governed by and construed in accordance with the following Laws, without regard to any choice or conflicts of law provisions that would mandate the application of the Laws of any other jurisdiction. Any dispute, claim, suit, action or proceeding arising out of or relating to this CSA or its subject matter, including breach thereof, will be finally settled exclusively as set forth below. The United Nations Convention for the International Sale of Goods does not apply to this CSA.

PingCAP Contracting Entity	Governing Law	Dispute Resolution Forum
PingCAP (US), Inc.	California, U.S.A.	1. If you are located in USA, you irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the state and federal courts in San Mateo, California, USA for the purpose of any dispute, controversy or claim arising out of or in connection with this CSA; 2. If you are not located in USA, any dispute arising out of or in connection with this CSA, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its International Arbitration Rules, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be San Mateo, California, USA. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the parties thereto. Judgment upon any award may be entered in any court having jurisdiction over any party or any of its assets.
PingCAP Kabushiki-Kaisha	Japan	Competent courts in Tokyo, Japan shall have the exclusive jurisdiction.
PingCAP Pte. Ltd.	Singapore	1. If you are located in Singapore, a competent court in Singapore shall have the exclusive jurisdiction; and 2. If you are not located in Singapore, any dispute arising out of or in connection with this CSA, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English.

• 15. Miscellaneous

• 15.1. Entire Agreement. This CSA, together with the SLA, Acceptable Use Policy, Privacy Policy, DPA and, if applicable, the Business Associate Agreement, comprises the entire agreement between you and us relating to the subject matter hereof. This CSA supersedes all prior or contemporaneous representations, understandings, agreements or communications between you and PingCAP, whether written or verbal, regarding the subject matter hereof. This CSA takes precedence over any additional or different terms or conditions provided by you, including those contained in any purchase order, which shall not apply or have any legal effect, and to which notice of objection is hereby given by PingCAP.

  15.2. Independent Contractors. PingCAP and you are independent contractors, and each party agrees that no partnership, joint venture, or agency relationship is created between the parties hereunder. Neither party may bind the other party or incur obligations on the other party’s behalf, and neither party’s personnel are eligible for any form or type of benefits offered by the other party to its personnel.

  15.3. Assignment; Third-Party Beneficiaries. You will not assign or otherwise transfer (including by operation of law) this CSA or any of your rights and obligations hereunder without our prior written consent. Any attempt to do so shall be null and void. PingCAP may assign or otherwise transfer (including by operation of law) this CSA or any of our rights or obligations hereunder to our Affiliates or in connection with a merger, change of control or sale of all or a substantial portion of our assets without your prior consent. This CSA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason hereof.

  15.4. Modifications to the CSA. PingCAP may modify this CSA (including the SLA, Acceptable Use Policy, Privacy Policy, DPA and Business Associate Agreement) at any time by posting a revised version on the Site or by otherwise notifying you in accordance with Section 15.5; provided, however, that PingCAP will provide at least sixty (60) days’ advance notice for any adverse changes to SLA. Subject to the 60-day advance notice requirement with respect to adverse changes to SLA, any such modified terms will become effective upon posting or, if PingCAP notifies you by email, as stated in the email message. By continuing to use the TiDB Cloud Services after the effective date of any modifications to this CSA, you agree to be bound by such modified terms.

  15.5. Notice. Any notice, request, consent, claim, demand, or other communication to be given or delivered to a party under or by reason of a provision of this CSA shall be in writing in accordance with this Section 15.5. PingCAP may provide you with notice under this CSA by (a) posting a notice on the Site or (b) sending a message to the email address then associated with your account. Notices provided by posting on the Site 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 the email address associated with your account current. You may provide us with notice under this CSA by both (i) sending written notice in English to: Deal Management Team, 2955 Campus Drive # 100, San Mateo, CA 94403 and (ii) sending a copy email to deal-management@pingcap.com.

  15.6. Customer Reference. PingCAP may refer to you as a customer of the TiDB Cloud Services in sales presentations and/or marketing activities and, in connection therewith, may use your name and trademarks (including any service marks or logos) on the Site, in a press release or in other promotional materials. Upon your written request, we will promptly remove your trademarks from the Site and will use commercially reasonable efforts to do so with respect to our promotional materials. At PingCAP’s reasonable request, you agree to participate in a case study that describes how you use the TiDB Cloud Services.

  15.7. Language. All communications and notices made or given pursuant to this CSA must be in the English language. If any translation of the English language version of this CSA is provided, the English language version of this CSA will control in the event of any conflict.

  15.8. Interpretation. For the purposes of this CSA: (a) any reference to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; (b) the term “including” means “including without limitation” and is intended by way of example and not limitation; (c) all headings are intended solely for the convenience of the parties, and none will be deemed to affect the meaning or construction of any provision hereof; (d) the word “or” is not exclusive; and (e) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this CSA as a whole.

  15.9. No Waivers. The failure by PingCAP to enforce any right or provision of this CSA will not constitute a present or future waiver of such provision or right, nor will it limit our right to enforce such term 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 to be effective.

  15.10. Severability. If any provision of this CSA 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 CSA will continue in full force and effect.