Last Updated: January 26, 2021
These Cloudrail Terms and Conditions (the “Agreement“) constitutes a binding agreement between Indeni, Inc. (“Company“) and the customer accepting this Agreement (“Customer“). This Agreement applies to and governs, inter alia, Customer’s access to and use of the Platform (defined below). Company and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
This Agreement commences and becomes effective (the “Effective Date“) as of the earliest of: (a) the date Customer first clicks “I Agree/I Accept/Sign Up” (or the similar button or checkbox); (b) the date Customer first accesses or uses the Platform, or sets up an Account (defined below); or (c) any effective or commencement date specified in Customer’s initial Order (defined below). But for the avoidance of doubt, no Order is needed in order for this Agreement to take effect.
If you are accepting this Agreement on behalf of your employer or another entity (for example, if you are signing up using an email address from such employer or entity), you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand the terms and conditions of this Agreement; and (iii) you agree to this Agreement on behalf of your employer or such entity. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT CLICK “I AGREE/I ACCEPT/SIGN UP” (OR THE SIMILAR BUTTON OR CHECKBOX), AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY PART OF THE PLATFORM.
- DEFINITIONS. The following capitalized terms have the meanings set forth below:
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Binary” means the Platform’s distributed component, for installation within the Customer’s build environment or developer workstations. Unless the context requires otherwise, references in this Agreement to the “Platform” shall be deemed to include the “Binary” as well.
“Content” means any text, data, information, reports, files, images, graphics, software code, or other content.
“Customer Content” means any Content submitted or uploaded to, or transmitted through, the Platform, or otherwise provided or made available to Company, by or on behalf of Customer.
“Documentation” means the Platform-related operational guides or manuals, which Company provides or makes available to Customer, in any form or medium. Documentation does not include any marketing, or other publicly available, materials. Unless the context requires otherwise, references in this Agreement to the “Platform” shall be deemed to include the “Documentation” as well.
“Company Content” means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via, the Platform.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Order” means any order form or other ordering document (including without limitation any Internet-based or email-based ordering mechanism or registration process, such as, via Customer’s Account), submitted or entered into by Customer for the purchase of a Subscription. Each Order is hereby incorporated into this Agreement by reference. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and an Order, the former shall prevail (unless the Order specifically states otherwise).
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Platform” means Company’s infrastructure-as-code security scanning software-as-a-service platform, known as Cloudrail.
“Pricing Page” means any publicly available web page(s) on the Site where Company publishes its list prices for the Platform, currently available at https://cloudrail.app/pricing/.
“Professional Services” means Platform-related installation, deployment, configuration, training, customization, integration, or other professional services.
“Subscription Scope” means any Platform usage or consumption limitations and parameters (for example, as to the volume of Users, volume of Binaries, available features and functionalities, etc.) specified in an Order.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
“Services” means, as the case may be, Support Services and/or Professional Services.
“Site” means the Company Cloudrail website currently at https://cloudrail.app.
“Support Services” means the Platform technical support and maintenance services specified in the Cloudrail support page (or, if applicable, any upgraded technical support and maintenance services purchased under an Order), currently available at https://cloudrail.app/service-level-agreement/
“User” means Customer’s employees who are authorized by Customer to use the Platform, and for whom Customer (or Company, at Customer’s request) has supplied a user identification and password for the Platform. Customer shall remain primarily responsible and liable for its Users’ compliance with the terms and conditions of this Agreement.
As an alternative to the above Account registration process, Customer may be able to generate an Account, or otherwise access the Platform, by integrating and logging in via a supported third party platform (a “Third Party Application“). As part of such integration, the Third Party Application may provide us with access to certain information that Customer and its Users have provided to such Third Party Application. The type of such information provided to Company, as well as the manner in which the Third Party Application uses, stores, and discloses such information, is governed solely by the policies of the third party operating the Third Party Application, and Company shall have no liability or responsibility for the privacy practices or other actions of such third parties. Company enables such integration merely as a convenience, and the availability of such integration does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of such Third Party Application or third party, nor any affiliation between Company and such third party. Company shall have no obligation or liability of any kind whatsoever for a Third Party Application or for the third party’s policies, practices, actions, or omissions.
3. EVALUATION PRODUCTS
From time to time, Company may permit Customer to try certain Platform features or functionalities (whether new or existing) at no charge for a free trial or evaluation period (each, an “Evaluation Product“). Evaluation Products may be designated or identified as beta, pilot, evaluation, trial, or the like. Unless configured otherwise by Company, or agreed otherwise (for example, in an Order), the default evaluation period for an Evaluation Product (the “Evaluation Period“) is thirty (30) days. However, Company reserves the right to terminate an Evaluation Period at any time, for convenience, with or without notice. For the avoidance of doubt, the restrictions set forth in Section 4.2 (Restrictions) shall also apply to Evaluation Products. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EVALUATION PRODUCTS ARE PROVIDED FOR CUSTOMER’S INTERNAL EVALUATION ONLY (AND NOT FOR PRODUCTION USE), AND COMPANY SHALL HAVE NO OBLIGATION OR LIABILITY OF ANY KIND WHATSOEVER TOWARDS CUSTOMER FOR EVALUATION PRODUCTS. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT THE EXCLUSION OF COMPANY’S LIABILITY TO CUSTOMER FOR AN EVALUATION PRODUCT, COMPANY’S AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF AN EVALUATION PRODUCT SHALL NOT EXCEED TEN US DOLLARS (USD$10).
4.1. General. Subject to the terms and conditions of this Agreement (including without limitation Customer’s payment of all applicable Fees), Company grants Customer, in connection with each Order, a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the corresponding Subscription Term (defined below), to do the following (collectively, the “Subscription“):
a. install the Binary in such volume as authorized by the Order; and
b. internally access and use the Platform and Company Content for its end-use, in accordance with the Documentation.
For the avoidance of doubt: (i) the Subscription is subject to the applicable Subscription Scope, and Customer shall not use any technical or other means within, or external to, the Platform to exceed or circumvent the Subscription Scope, and (ii) the Binary is only licensed (and not sold) hereunder. Any rights not expressly granted herein are hereby reserved by Company and its licensors, and, except for the Subscription, Customer is granted no other right or license in or to the Platform, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. Customer shall be solely responsible for providing all equipment, systems, assets, access (for ensuring the Platform has access to Customer’s cloud environment), and ancillary services needed to access and use the Platform, for ensuring their compatibility with the Platform, as well as for obtaining (and maintaining) all consents and licenses necessary to exercise Customer’s rights under the Subscription. Company reserves the right, but not the obligation, to monitor Customer’s use of the Platform.
4.2. Restrictions. As a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Platform or Company Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Platform or Company Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Platform or Company Content; (d) modify, adapt, translate, or create a derivative work of the Platform or Company Content; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Platform or Company Content; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Platform or Company Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform or Company Content; (h) use the Platform or Company Content to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, either of them; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Platform or Company Content; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of Binaries, servers/machines, Users, or endpoints that directly access or use the Platform or Company Content (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’); (k) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (l) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Platform or Company Content, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) use the Platform or Company Content in connection with any internal performance testing or benchmark studies of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without Company’s prior express written approval, or otherwise disclose or publish such results.
4.3. Customer Affiliates. Subject to (and without expanding) the Subscription Scope, Customer may permit its Affiliates to exercise Customer’s Subscription rights under an Order, provided that: (a) Customer first informs Company in writing of the identity of such Affiliates (and Company may object to an Affiliate if Company deems such Affiliate a competitor); and (b) such Affiliates, in writing, acknowledge the terms and conditions of this Agreement, agree to comply with the Subscription, and agree that Company shall have no obligation or liability of any kind whatsoever towards such Affiliates. Customer shall remain primarily responsible and liable for such Affiliates’ compliance with the terms and conditions of this Agreement.
4.4. Delivery and Hosting. The Platform is made available to Customer via the Site. The hosting of the Platform (and related processing) will be provided by a third party cloud hosting provider selected by Company (“Hosting Provider“), and accordingly the availability of the Platform shall be in accordance with the Hosting Provider’s then-current uptime commitments. In the event Company decides to host the Platform (or a part thereof) internally on Company’s own servers under this Agreement, then Company shall notify Customer. Unless the Order specifies otherwise, delivery of the Binary shall be by electronic download. The Binary will be deemed accepted once made available for electronic download.
4.5. Features and Functionalities. Company may, from time to time, modify and replace the features and functionalities (but not material functionalities to which Customer is entitled under an Order, unless it improves the material functionality), as well as the user interface, of the Platform. Some features and functionalities may in any event be restricted by geography or otherwise, in order for Company to comply with applicable Law or commitments to third parties. Features and functionalities may be accompanied by separate or additional terms and conditions (in each case, “Feature Specific Terms“). Unless stated otherwise within Feature Specific Terms, all Feature Specific Terms apply in addition to (and not instead of) this Agreement.
5.1. Support Services. Subject to Customer remaining current all payment obligations under this Agreement, Customer will be entitled to receive the Support Services.
5.2. Professional Services. Company is not obligated to provide any Professional Services. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Professional Services Statements of Work to this Agreement (each, a “Professional Services SOW“). Professional Services shall be charged in accordance with such Professional Services SOW. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference. To the extent of any conflict between the terms and conditions of this Agreement and a Professional Services SOW, the former shall prevail, unless and to the extent that the Professional Services SOW expressly states otherwise.
5.3. General. Services will be performed by Company, its Affiliates, and/or Channel Partners (if applicable), and are provided for the benefit of Customer only. With Customer’s prior written approval (not to be unreasonably withheld, conditioned, or delayed) Company may subcontract Services (in whole or in part) to a third party contractor, and Company shall remain primarily responsible for such contractor’s performance of the Services. Unless expressly agreed otherwise in writing, Services shall be carried out remotely, and any physical attendance at Customer’s offices or other locations requested by Customer, if agreed to by Company, shall be charged at Company’s then-current rates, and Company shall also be entitled to reimbursement for travel and lodging costs and expenses incurred.
6. PURCHASES VIA CHANNEL PARTNERS
If Customer is purchasing a Subscription through a Company-authorized reseller or distributor (“Channel Partner“), then:
a. For the purposes of this Agreement, the “Order” shall be the order issued by the Channel Partner to Company (the “Company-Channel Partner Order“), and the “Subscription Scope” shall be determined with reference to the Company-Channel Partner Order, and Company shall have no responsibility or liability for any discrepancy between the Subscription Scope under such Company-Channel Partner Order on the one hand, and the order issued by Customer to Channel Partner (the “Customer-Channel Partner Order“) on the other hand;
b. Instead of paying Company, Customer will pay the applicable amounts to the Channel Partner, as agreed between Customer and the Channel Partner;
c. Company may suspend or terminate the Subscription if Company does not receive payment from the Channel Partner, as a result of Customer not paying the corresponding amount to the Channel Partner;
d. If Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Company specifies otherwise, Company will refund any applicable fees to the Channel Partner (and under no circumstances shall Company be required to refund more than it received from the Channel Partner), and the Channel Partner alone will be responsible for refunding the appropriate amounts to Customer; and
e. Neither Company nor the Platform will be bound by, or subject to, any representations, warranties, promises, or commitments made by the Channel Partner.
7.1 Fees. Customer agrees to pay Company the fees and other charges set forth in each Order (the “Fees“).
7.2 Pricing. Unless the Company issues Customer a written quotation referencing this Agreement (a “Quote“) and specifying a different price, the Fees will be priced according to the then-current Pricing Page.
7.3 Payment Terms. Unless expressly stated otherwise in an Order or this Agreement: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are shall be paid in advance at the commencement of each billing cycle (except for Fees for overages, which are charged in arrears); (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable Law.
7.4 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company’s net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
7.5 Payment Processing. Customer represents and warrants that all payment and billing information provided is (and will remain) complete and accurate. Payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer’s billing information), and additional terms may apply to such payments. Customer authorizes Company (and/or its designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds) from Customer on a recurring basis; and (b) make any inquiries Company deems necessary, from time to time, to validate Customer’s designated payment method or financial information, in order to ensure prompt payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from Customer’s payment, credit card, or banking account provider – such as, updated expiry date or card number).
7.6 Usage Audit. Company (or a third party it reasonably designates) shall, from time to time, be entitled to audit Customer’s deployment and use of the Platform (a “Usage Audit“), and Customer shall facilitate such Usage Audit by providing Company with all access reasonably requested by Company (such as, for the purpose of calculating any Fees for overages).
8.1 Company Materials. Company (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to:
- The Platform;
- Company Content;
- Company’s Confidential Information;
- Any feedback, suggestions, or ideas for or about the Platform or Company Content (collectively, “Feedback“);
- Any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Platform or Company Content (such as metadata, aggregated data, analytics, security findings or discoveries, etc.) (collectively, “Output“); and
- Any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship.
Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Company to ensure and/or provide Company (and/or its designee(s)) the ownership rights set forth in this paragraph.
8.2 Customer Content. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content.
- Unless the Platform specifically requests otherwise, Customer shall ensure that no Customer Content includes or links to Sensitive Data.
- Customer represents and warrants that: (a) no processing of Customer Content under this Agreement (whether by Company, its Affiliates, or the Hosting Provider) will violate any law, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy Laws (if applicable), necessary to provide, make available, and otherwise expose Customer Content to Company, its Affiliates, and the Hosting Provider.
- During the Term, Customer hereby grants Company and its Affiliates a worldwide, royalty-free, paid-up, non-exclusive, sublicensable (through multiple tiers of sublicensees) right and license to access, process, store, reproduce, modify, truncate, aggregate, adapt, arrange, translate, distribute, create derivative works of, publicly display and perform, as well as otherwise use, Customer Content, in any media format and through any media channels, for the sole purpose of providing the Platform, Company Content, and/or Services, and for otherwise performing under this Agreement.
- The Platform is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Platform for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
Each Party will protect the other’s Confidential Information (defined below) from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and may disclose such Confidential Information:
- solely to its employees and contractors who have a need to know such Confidential Information for the foregoing purposes, and who are bound by terms of confidentiality substantially similar to those set forth herein;
- as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; and/or
- as reasonably necessary to comply with any applicable Law.
Notwithstanding anything to the foregoing, Company shall be entitled to disclose Customer’s Confidential Information to Company’s Affiliates, as well as to the Hosting Provider and to Company’s subcontractors under this Agreement.
“Confidential Information” means all information disclosed by one Party to the other Party, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and/or the circumstances of disclosure, and includes, but is not limited to, technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, and other technology and intellectual property. Confidential Information shall not include information that: (A) was already known (without restriction) to the receiving Party at the time of disclosure by the disclosing Party; (B) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (C) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (D) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
THE PLATFORM, COMPANY CONTENT, SERVICES, EVALUATION PRODUCTS, OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES HEREUNDER (COLLECTIVELY, THE “COMPANY MATERIALS“) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY COMPANY AND ITS LICENSORS.
COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER’S USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
THE PROVISIONS OF THIS SECTION 10 (DISCLAIMERS) AND OF SECTION 11 (LIMITATION OF LIABILITY) BELOW ALLOCATE THE RISK UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
11. LIMITATION OF LIABILITY
11.1 EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 7 (CONFIDENTIALITY), A BREACH OF THE SUBSCRIPTION, AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
11.2 THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY (OR, IF NO FEES APPLY, ONE HUNDRED US DOLLARS (USD$100)).
11.3 THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
12. INDEMNIFICATION BY CUSTOMER
If Company or its Affiliates (or their respective directors, officers, or employees) (collectively, “Company Indemnitees“) incur or suffer any loss or liability whatsoever (including but not limited to a fine, penalty, damages award, legal costs and expenses such as attorney’s fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual, organization, or governmental agency) against a Company Indemnitee (each, a “Claim“), and such Claim arises directly or indirectly from any breach by Customer under this Agreement and/or from Customer’s use of the Platform, Customer agrees to:
- Indemnify and hold harmless the Company Indemnitee(s) for such losses and liabilities; and
- If requested by Company, defend the Company Indemnitee(s) against the Claim at Customer’s own cost and expense.
13. TERM AND TERMINATION
13.1 Term of Agreement. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect until all Orders expire or are terminated (the “Term“).
13.2 Term of Orders and Auto-Renewals. An Order commences on the effective date specified therein (or if no effective date is specified, then upon execution) and continues for the initial subscription term specified therein (the “Initial Subscription Term“). Unless specified otherwise in the applicable Order, or unless the Order is terminated in accordance with Section 13.3 (Termination of Orders), upon expiration of the Initial Subscription Term, the Order shall automatically renew for successive renewal terms of equal length (each a “Renewal Subscription Term“, and together with the Initial Subscription Term, the “Subscription Term“), unless either Party notifies the other Party in writing that it chooses not to renew (“Non-Renewal Notice“). For an annual Subscription plan, the Non-Renewal Notice must be given at least thirty (30) days prior to the end of the then-current Subscription Term. For a monthly Subscription plan, the Non-Renewal Notice must be given prior to the end of the then-current Subscription Term.
13.3 Termination of Orders. An Order may be terminated as follows:
- In accordance with any termination rights specified therein;
- Either Party may terminate an Order for cause upon written notice if the other Party commits a material breach under the Order and/or under this Agreement, and fails to cure such breach within thirty (30) days after receiving written notice from the other Party alleging the breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is non-payment by Customer;
- Either Party may terminate an Order upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations; and
- Company may terminate an Order for convenience upon thirty (30) days’ prior written notice to Customer. In case of such termination for convenience by Company, Customer shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Fees under such Order based on the remaining period of the then-current Subscription Term.
- Customer may, within the initial five (5) business days of an Order, terminate the Order for convenience upon written notice to Company. In case of such termination for convenience by Customer, Customer shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Fees under such Order based on the remaining period of the Initial Subscription Term.
13.4 Suspension. Company reserves the right to temporarily suspend provision of the Platform: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach of the Subscription (such as a breach under Section 4.2 (Restrictions)); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Platform, including if the Platform’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by Law or at the request of governmental entities.
13.5 Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access and use of the Platform, and shall uninstall and permanently delete all copies of the Binary (and Company shall be entitled to verify same) and certify in a signed writing that it has done so; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination, which shall become immediately due and payable, and, if necessary Company shall issue a final invoice therefor. Customer acknowledges that following termination it will have no further access to any Customer Content within the Platform, and that Company may (but shall not be obligated to) delete any Customer Content as may have been stored by Company at any time. Sections 8 (Ownership) through 14 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
14.1 Entire Agreement. This Agreement (and its Schedules) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement, which shall be deemed rejected, void, and of no effect. The section and subsection headings used in this Agreement are for convenience of reading only, and shall not be used or relief upon to interpret this Agreement. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
14.2 Modifications to Agreement. Company may, from time to time, amend and modify this Agreement, with notice to Customer via email or via the Platform (an “Agreement Modification“). Except as otherwise indicated below, an Agreement Modification shall automatically take effect and apply to Customer as of the next Renewal Subscription Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Laws, or as necessary for new features and functionalities) Company may specify that an Agreement Modification will become effective immediately or at a specified date. If the effective date of an Agreement Modification is during Customer’s then-current Subscription Term, and the Agreement Modification is material and adverse (that is, it expands Customer’s obligations and liabilities in a material way), and Customer objects to the Agreement Modification, then, as Customer’s sole remedy, and Company’s sole obligation and liability, Customer may terminate the affected Order upon written notice to Company and receive a pro-rated refund of any pre-paid and unutilized Fees under such Order based on the remaining period of the then-current Subscription Term; provided, however, that in order to exercise this right, Customer must provide Company with written notice of its objection and termination (which notice must include an explicit reference to the Agreement Modification to which Customer objects) within thirty (30) days of Company’s notice of the Agreement Modification. For the avoidance of doubt, an Order is subject to the version of the Agreement in effect at the time of the Order.
14.3 Third Party Content. The Platform may present, or otherwise allow Customer to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Company (such Content, “Third Party Content“). The Platform may also enable Customer to communicate with the related third parties. The display or communication to Customer of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of such Third Party Content or third party, nor any affiliation between Company and such third party. Company shall have no obligation or liability of any kind whatsoever for Third Party Content or for the third party’s policies, practices, actions, or omissions.
14.4 Assignment. This Agreement may not be assigned by Customer, in whole or in part, without Company’s prior express written consent. Company may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns.
14.5 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods, as well as the Uniform Computer Information Transactions Act (UCITA) (regardless of where or when adopted), shall not apply to this Agreement and are hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, USA and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company’s officers, directors, representatives, or agents.
14.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
14.7 Publicity. Company may use Customer’s name and logo on Company’s website and in its promotional materials to state that Customer is a customer of the Platform.
14.8 Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
14.9 No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Company’s Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
14.10 Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
14.11 Force Majeure. Neither Party shall have any liability for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the Subscription and/or of Company’s Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Platform by a third party is beyond the reasonable control of Company.
14.12 Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via either U.S. mail or mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service (“Courier“); (d) the second business day after sending confirmed by facsimile; (e) the first business day after sending by email. Notwithstanding the foregoing, Customer agrees that Company may also give Customer notices via Customer’s Account and/or via postings on or through the functionality of the Platform (and such notices shall be deemed given immediately). Notices by Customer to Company must be given by Courier or U.S. mail to: 555 Bryant St. #157, Palo Alto, CA 94301,, Attn: Legal Department.
14.13 Export Compliance. Customer shall be solely responsible for obtaining all required authorizations and licenses from applicable government authorities under Export Control Laws, in connection with Customer’s use of the Platform. Customer represents and warrants that: (a) it is not a resident of, and will not access or use the Platform in, a country that the U.S. government has embargoed for use of the Platform, and that Customer is not a person or entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Company. Customer shall not transfer, export, re-export, import, re-import or divert the Platform in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert any the Platform to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Company and all Company Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or a Company Affiliate (or such persons) as a result of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
14.14 Expense. Except as expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
14.15 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Platform constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Platform shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.
14.16 Subpoenas. Nothing in this Agreement prevents Company from disclosing Customer Content to the extent required by Law, subpoenas, or court orders, but Company will use commercially reasonable efforts to notify Customer where permitted to do so.
14.17 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Company’s employees or agents, or otherwise from any Channel Partners, in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer shall use reasonable efforts to promptly notify Company.