1. Provision of Service
1.1 Provision Generally
On execution by each Party of the Order Form, during the Subscription Term (as defined in Section 5.1) Provider will provide Customer with access to the Service in accordance with the terms and conditions of this Agreement. To access and use the Service, Customer is responsible at its own expense for obtaining its own internet access and any hardware and software required therefor. Customer's right to use the Service during the Subscription Term shall be subject to and in accordance with any additional conditions, restrictions or parameters specified in the Order Form(s).
1.2 Grant of Rights
Subject to the terms and conditions of this Agreement (including the applicable Order Form), Provider hereby grants to Customer a limited, royalty-free, non-exclusive, non-sublicensable, non-transferable (except for permitted assignments as hereinafter described) right to access and use the Service in accordance with Provider documentation, subject to the purchased quota if any and solely for Customer's internal business purposes during the Subscription Term. All rights not expressly granted to Customer are reserved by Provider and its licensors. There are no implied rights.
1.3 Eligibility Requirements
By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements ("Eligibility Requirements"): (a) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement; (b) the Customer Data is and will remain within Customer's right to use, accurate, complete and current; (c) Customer's use of the Service will comply with all applicable laws and regulations; and (d) Customer will not infringe the rights of any third party (including without limitation any intellectual property rights or privacy rights) in its use of the Service.
1.4 Restrictions
Customer shall not (and shall not allow any third party to): (a) permit any third party to access or use the Service except as envisioned by the Service in its normal operation or specified herein; (b) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (c) use any unauthorized robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service except to have copy of Customer Data; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
Customer shall keep all passwords and/or API keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords and/or API keys issued to Customer. Customer shall notify Provider immediately of any actual or suspected unauthorized use of its passwords and/or API keys for the Service. Without limiting any of its other rights or remedies, Provider reserves the right to suspend access to the Service if Provider reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement after providing Customer written notice remained ineffective within 15 days.
The Service may not be accessed or used by any national or resident of a country embargoed by the United States or Canada including countries sanctioned by the Office of Foreign Assets Control (OFAC) or the Financial Action Task Force (FATF). By accessing or using the Service, Customer is representing and warranting that Customer is not located in, under the control of, or are a national or resident of any country to which the use of the Service would be prohibited by the laws of Canada or the United States.
Services may contain or be provided with components that are subject to open-source software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Agreement.
1.5 Customer Cooperation
Customer shall: (a) reasonably cooperate with Provider in all matters relating to the Service; (b) respond promptly to any Provider request to provide information, approvals, authorizations or decisions that are reasonably necessary for Provider to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as Provider may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
2. Provider Technology
In connection with providing the Service, Provider and its licensors shall operate and support the hosted environment used by Provider to provide the Service, including the Provider Technology, the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Provider. As used herein, "Provider Technology" means all of Provider's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Provider in providing the Service, including any and all updates, modifications, improvements and derivatives thereto and thereof.
3. Ownership
Provider acknowledges and agrees that as between Customer and Provider, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein.
No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any Provider trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.
Customer acknowledges and agrees that, as between Provider and Customer, all right, title and interest in and to the Service, the Provider Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Provider or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Provider Technology other than a limited right to use the Service in accordance with this Agreement.
4. Fees; Payments; Taxes
4.1 Fees
Customer shall pay Provider the monthly fees set forth in the Order Form and make such payment in accordance with the instructions, terms and/or schedule set forth in the Order Form or otherwise on the Website. If the Order Form does not specify payment terms, the payment terms shall be net 10 days from receipt of invoice. Limited Services may be made available on a "free" basis, in which event no fees shall be payable.
4.2 Increases
Provider reserves the right to increase its fees upon at least 90 days' advance notice (e-mail or otherwise) to Customer; provided, however, that fee increases will not take effect until the start of the next Subscription Term.
4.3 Taxes
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer's access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Provider's income), which may be invoiced by Provider from time-to-time.
4.4 Late Payments
Customer shall pay interest on all late payments with 15 days written prior notice, at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Provider for all costs and expenses, including attorneys' fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
5. Term & Termination
5.1 Term, Termination and Automatic Renewal
Customer's initial subscription term for the Service commences on the date of acceptance of the applicable Order Form by Provider and, unless sooner terminated as set forth herein, will continue for the period specified in the Order Form (the "Initial Subscription Term" or the "Subscription Term"). Notices to Provider shall be sent to [email protected].
5.2 Termination for Breach
Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and, where such breach is curable, has not cured such breach within 30 days' receipt of written notice thereof.
5.3 Termination for Convenience (Free Services)
Where the Service is provided to Customer on a "free" basis, Provider reserves the right to terminate this Agreement at any time, with or without notice to Customer.
5.4 Effects of Subscription Termination; Survival
Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Provider shall no longer provide access to the Service to Customer, (b) Customer shall cease using the Service, and (c) Provider shall delete all Customer Data. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 4-11.
6. Privacy
6.1 EU Standard Contractual Clauses
To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by the Provider at the applicable URL for such terms or as otherwise communicated to Customer.
6.2 Personal Data
Customer consents to the processing of Personal Data by Provider and its affiliates, and their respective agents and Subcontractors, as provided in this Agreement. Before providing Personal Data to Provider, Customer will obtain all required consents from third parties (including Customer's contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.
6.3 Processing of Personal Data; GDPR
To the extent Provider is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection. Processor and Controller Roles and Responsibilities: Customer and Provider agree that Customer is the controller of Personal Data and Provider is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Provider is a subprocessor or (b) stated otherwise in any Service-specific terms. Provider will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Provider that Customer's instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller. Processing Details: The subject-matter of the processing is limited to Personal Data within the scope of the GDPR. The duration of the processing will be for the duration of the Customer's right to use the Service and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement. The nature and purpose of the processing will be to provide the Service pursuant to this Agreement. The types of Personal Data processed by the Service include those expressly identified in Article 4 of the GDPR. The categories of data subjects are Customer's representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Provider by Customer. Data Subject Rights; Assistance with Requests: Provider will make information available to Customer in a manner consistent with the functionality of the Service and Provider's role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. Provider will comply with reasonable requests by Customer to assist with Customer's response to such a data subject request. If Provider receives a request from Customer's data subject to exercise one or more of its rights under the GDPR in connection with a Service for which Provider is a data processor or subprocessor, Provider will redirect the data subject to make its request directly to Customer. Use of Subprocessors: Customer consents to Provider using the subprocessors listed at the applicable Provider URL or as otherwise communicated to Customer. Provider remains responsible for its subprocessors' compliance with the obligations herein. Provider may update its list of subprocessors from time to time, by providing Customer at least 14 days notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription for the affected Service without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval. Records of Processing Activities: Provider will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.
6.4 Security
Provider will take appropriate security measures that are required by Data Protection Laws and in accordance with good industry practice relating to data security.
6.5 Support Data
Provider may collect and use Support Data internally to provide technical support for the Service. Provider will not use Support Data for any other purpose unless otherwise agreed in writing by the parties.
6.6 Definitions
For purposes of this Agreement: (i) "Data Protection Laws" means any law applicable to Provider or Customer, relating to data security, data protection and/or privacy, including the GDPR, and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted; (ii) "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data; (iii) "Personal Data" means any information relating to an identified or identifiable natural person; and (iv) "Standard Contractual Clauses" means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
7. Warranty Disclaimer
7.1 Disclaimer
THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, AND PROVIDER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
7.2 Additional Disclaimer
CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE "HOSTING CONTRACTOR") AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICE (THE "HOSTING CONTRACTOR SERVICES"). ADDITIONALLY, PROVIDER USES THIRD PARTIES TO HELP RECEIVE PAYMENTS ("PAYMENT PROCESSOR"). PROVIDER MAY CHANGE ITS HOSTING CONTRACTOR AND PAYMENT PROCESSOR AT ANY TIME. CUSTOMER'S USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PROVIDER SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR.
8. Limitations of Liability
8.1 Disclaimer of Indirect Damages
EXCEPT FOR (A) CUSTOMER'S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; AND (B) CUSTOMER'S BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8.2 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PROVIDER'S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PROVIDER DURING THE THEN-CURRENT SUBSCRIPTION TERM WHATEVER THE MOMENT OF THE THEN-CURRENT PERIOD.
8.3 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT PROVIDER HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9. Defense of Third-Party Claims
9.1 By Customer
Customer will defend Provider and its affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Customer's or any authorized user's violation of this Agreement or user terms (a "Claims Against Provider"), and will indemnify Provider and its affiliates for all reasonable attorney's fees incurred and damages and other costs finally awarded against Provider or its affiliates in connection with or as a result of, and for amounts paid by Provider or its affiliates under a settlement Customer approves of in connection with a Claim Against Provider.
9.2 By Provider
Provider will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that: (i) the use of the Service as permitted under the Contract infringes or misappropriates a third party's intellectual property rights and (ii) any violation of applicable law including Data Protection Laws (a "Claim Against Customer"), and will indemnify Customer for all reasonable attorney's fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Provider approve of in connection with a Claim Against Customer; provided, however, that the Provider has no liability if a Claim Against Customer arises from: (1) Customer Data or non-Provider products, including third-party software; and (2) any modification, combination or development of the Service that is not performed or authorized in writing by Provider, including in the use of any application programming interface (API).
9.3 Representation
Notwithstanding anything contained in the above subsections, (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
10. Confidentiality
10.1 Definitions
"Confidential Information" means information that is disclosed by either Party (the "Disclosing Party") to the other Party (the "Receiving Party") hereunder during the Subscription Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential. Confidential Information shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party's possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Service and Provider Technology shall be deemed Confidential Information of Provider; and (iii) Customer Data shall be deemed Confidential Information of Customer.
10.2 General Obligations
Each Party agrees that it will during the Subscription Term and thereafter a period of five (5) years (a) not disclose the other Party's Confidential Information to any third party, (b) use the other Party's Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement, (c) disclose the other Party's Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement, and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care.
10.3 Return or Destruction
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party's Confidential Information in tangible form, upon the termination of this Agreement, subject to the retention rights stated in the source document.
10.4 Feedback
To the extent that Customer at any time provides Provider with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, "Feedback"), the Feedback shall not be considered Confidential Information of Customer, and Provider may use, disclose and exploit the Feedback in any manner it chooses without any obligation to Customer. All Feedback provided by Customer is provided "AS IS" and without warranty or representation of any kind.
11. Miscellaneous
11.1 Assignment
This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by either Party without the prior written consent of the other Party, except as expressly permitted in the Agreement, including transfers to affiliates or in connection with a change of control, sale of assets, or operation of law.
11.2 Entire Agreement; Precedence; Amendment
This Agreement (including the Order Form) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.
11.3 Notices
Provider may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
11.4 Force Majeure
Neither Party will be liable to the other Party for any failure or delay in performance by circumstances beyond its control, including fire, labor difficulties, telecommunication failures, Internet unavailability, governmental actions or terrorism, provided that the Party seeking to rely on such circumstances gives written notice of such circumstances to the other Party and uses reasonable efforts to overcome such circumstances.
11.5 Choice of Law
Any question, claim or controversy arising out of or related to this Agreement (a "Dispute") will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
11.6 Disputes
In the event of any Dispute, the designated representatives of Customer and Provider shall promptly confer and exert their good faith efforts to reach a reasonable and equitable resolution of such Dispute. If the Parties are unable to resolve the Dispute in accordance with the procedure described in the Agreement, either Party may deliver notice to the other Party of its intent to submit the Dispute to the Court of the Province of British Columbia, Canada.
11.7 Claims of Infringement
Provider respects Customer's copyrights and other intellectual property rights and those of other third parties. If Customer believes in good faith that Customer's copyrighted work has been reproduced on the Service without Customer's authorization in a way that constitutes copyright infringement, Customer may notify our designated copyright agent by mail to: Eureka DevSecOps Inc., Attn: Legal, 555 W Hastings St #1200, Vancouver, BC V6B 4N6, Canada, [email protected]. Please provide the following information to Provider's Copyright Agent: (a) the identity of the infringed work, and of the allegedly infringing work; (b) Customer's name, address, daytime phone number, and email address, if available; (c) a statement that Customer has a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (d) a statement that the information in the notification is accurate and, under penalty of perjury, that Customer is authorized to act on behalf of the owner; and (e) Customer's electronic or physical signature.
11.8 Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.9 Waiver
No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.
11.10 Severability
If any provision of this Agreement is held to be unenforceable or illegal by a court or tribunal of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
11.11 Interpretation
Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words "include," "includes," or "including" in this Agreement shall not be limiting and "or" shall not be exclusive.