This StormForge SAAS Agreement, including the corresponding Order Form between the Parties (the “Order Form”) which by this reference is incorporated herein (this “Agreement”), is a binding agreement between Gram Labs, Inc. d/b/a StormForge (“StormForge”) and the person or entity identified on the Order Form as the licensee of the Software (“Customer”).
As used in this Agreement, and in any Exhibits and the Order Form, the capitalized terms shall have the meanings indicated below:
“Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with a specified entity, and for purposes of this definition, “Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”), means the direct or indirect beneficial ownership of at least fifty (50%) percent of the voting stock of, or at least a fifty (50%) percent interest in the income of, such corporation or entity, or the power to elect at least fifty (50%) percent of the directors or trustees of such corporation or entity, or majority control of such corporation or entity, or such other relationship which in fact constitutes actual control.
“Customer Configuration” means the Customer specific configurations recommended by the Hosted System for Customer’s Kubernetes Deployment based upon the Hosted System’s review of Customer Data.
“Customer Data” means (a) any and all data, databases, information, content, and materials, which Customer or its Affiliates enter into, load onto, or use in connection with the Hosted Services or which the Hosted Service gathers in regard to the Customer’s Kubernetes Deployment which is specific and identifiable to Customer; and (b) the Customer Configurations.
“Customer’s Kubernetes Deployment” means a deployment managing a set of Kubernetes pods which are executing containerized applications for Customer’s internal business purposes only.
“Documentation” means the user and technical information, provided to Customer by StormForge, regarding the access and use of the Hosted Services by means of an on-line help system describing the operation, functionality, components, features, or requirements of the Hosted Services under normal circumstances.
“Hosted Services” means StormForge’s Software Agent and hosted software service (and related applications, libraries, containers, user interfaces, analytics tools, on-line help, and associated Documentation) intended (i) to assess and gather data regarding a Customer Kubernetes Deployment, (ii) to provide that data to StormForge’s artificial intelligence algorithms to allow the algorithms to generate Customer Configuration recommendations, (iii) to deploy those Customer Configuration recommendations on StormForge managed servers to control Customer Kubernetes Deployment in real time to implement such recommendations and gather data regarding the impact thereof, and (iv) to continue this process on an ongoing basis to continually tweak and improve Customer’s Kubernetes Deployment as environmental circumstances change.
“Intellectual Property Rights” means worldwide all: (i) patents and patent applications, and rights associated therewith (utility and/or design), including any divisionals, continuations, continuations in part, reissues, and reexaminations thereof; (ii) rights associated with works of authorship including copyrights and mask work rights; (iii) know-how and rights relating to the protection of trade secrets, data privacy rights, rights in design, and confidential information; (iv) sui generis database rights; (v) any rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (vi) trademarks, service marks, trade dress, and trade names (including internet domain names, corporate names, and e-mail address names), whether registered or unregistered; (vii) all other forms of intellectual property or proprietary rights, and derivative works thereof; in each case above whether arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
“Software Agent” means software distributed by StormForge to Customer for its installation to allow for monitoring and collection of Customer Data and delivery of Customer Configurations, each through interaction with the hosted portion of the Hosted Services.
“StormForge Data” means (i) any and all data, databases, information, content, and materials, provided to Customer or its Affiliates by StormForge for use in connection with the Hosted Services, and all results from processing the same in the course of using the Hosted Services, and (ii) data, databases, information, content, and materials that are derived by or through the Hosted Services from processing Customer Data and are sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“Support Services” means those services set forth in Exhibit A, (StormForge Support Services Policy), as updated by StormForge from time to time.
“Subscription” means the particular use and access rights to the Hosted Services granted by StormForge to Customer and related responsibilities, as described in this Agreement.
“Subscription Fee” means, in U.S. Dollars, the fee to access and use particular features of the Hosted Services, and to receive the Support Services, during the applicable Subscription term.
“Update” means any patch, bug fix, correction, update, upgrade, enhancement, minor release, or other modification by StormForge to software used in the Hosted Services, that is generally small in scope, made generally available by StormForge to its customers. Updates shall also include major releases of the Hosted Services configuration that introduce significant feature additions, broad upgrades to the user interface, or architectural improvements to the technology platform (collectively, “New Versions”), except where StormForge elects in its sole discretion to provide New Versions subject to a separate agreement.
“User(s)” means Customer’s employee(s) and its Affiliates’ employee(s) who are authorized by Customer to use the Hosted Services in accordance with this Agreement and have been supplied User IDs by Customer in accordance with this Agreement.
“User ID” means the access credentials in the form of a user name, identification number, password, license or security key, token, PIN, or other security code, method, or device used, alone or in combination to verify an individual’s identity and authorization to access and use the Hosted Services.
A. Subscription Grant. Subject to payment of the applicable Subscription Fee when due, and compliance with and performance in accordance with all other terms and conditions of this Agreement and the Order Form, StormForge hereby grants to Customer a nonexclusive, non-transferrable, non-sublicensable, worldwide, limited license to do the following with regards to the Hosted Services for which Customer has purchased a Subscription: (i) install a reasonable number of copies of the Software Agent on Customer’s systems; (i) access the Hosted Services through the Software Agent using valid User IDs; (ii) use the Hosted Service to gather Customer Data on the Customer’s Kubernetes Deployment and to generate Customer Configuration recommendations for managing the Customer’s Kubernetes Deployment; and (iii) use the Hosted Service to apply such Customer Configuration recommendations in real time in order to manage the Customer’s Kubernetes Deployment; in each case, solely for Customer’s own internal business purposes.
B. Subscription License Restrictions. Customer shall not access, or allow access to, the Hosted Services if Customer is in direct competition with StormForge, except with StormForge’s prior written consent. In addition, Customer may not access the Hosted Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit, or make available to any third party, the Hosted Services in any way; (ii) copy, modify or make derivative works of the Hosted Services; (iii) create Internet “links” to the Hosted Services on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Hosted Services in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions, or graphics of the Hosted Services; or (c) copy any ideas, features, functions, or graphics of the Hosted Services.
C. Hosted Services Restrictions. In using the Hosted Services, Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Hosted Services or the data contained therein; (v) attempt to gain unauthorized access to the Hosted Services or its related systems or networks; or (vi) input any data or information into the Hosted Services that is: credit card or debit card information, personal banking, financial account information, social security numbers, HIPAA-protected data, or other personally identifiable or confidential information concerning individuals.
D. Suspension. StormForge may immediately suspend the provision of the Hosted Services to Customer or an applicable User in the event of an actual or reasonably suspected (1) breach of this Section 2; (2) attack or vulnerability on the security of StormForge’s or its other customers’ systems, data, hardware or software; or (3) other misuse of the Hosted Services.
E. Support Services and Availability Commitment. StormForge shall provide the Support Services as set forth in Exhibit A, and shall provide the Hosted Services in accordance with Exhibit B, each to the extent specified in the Order Form.
F. Subcontractors. Customer acknowledges and agrees that StormForge may in its sole discretion engage or has engaged subcontractors to perform hosting of the Hosted Services and Support Services hereunder.
A. User Accounts and User IDs. Customer will access and use the Hosted Services only through valid User IDs issued by Customer to its employees. Customer shall not issue User IDs to contractors or agents unless those contractors and agents are (a) bound by written agreements protecting the confidentiality and Intellectual Property Rights of StormForge at least as strongly as this Agreement, (b) instructed in writing that they may not access or use the Hosted Service except on behalf of Customer for Customer’s internal business purposes, and (c) not competitors of StormForge. Customer agrees to be responsible for, and to indemnify and hold StormForge harmless from, any and all costs or damages which result to StormForge from any act or omission of its employees, contractors and agents, and for all activities occurring under Customer’s User IDs and accounts. Customer shall immediately notify StormForge of any unauthorized use of its User IDs or accounts or the Hosted Systems. Customer shall not permit Users to share User IDs with each other or with third parties. Customer acknowledges that: (i) StormForge may rely on the validity of any User ID, instruction or information that meets the Hosted Services’ automated criteria or which is believed by StormForge to be genuine; (ii) StormForge may assume a person entering a User ID and password is, in fact, that User; and (iii) StormForge may assume the latest email addresses and registration information for Users on file with StormForge are accurate and current.
B. Data Preparation and Configuration. Customer will ensure that: (i) it maintains the Customer Kubernetes Deployment in proper format as specified by the Documentation and provides the Hosted Service with licensed access to it; (ii) its Users are familiar with the use and operation of the Hosted Services; and (iii) it does not introduce other software, data, or equipment having an adverse impact on the Hosted Services. Customer shall configure the Hosted Services, any Updates, and its internal processes, as needed, to utilize the Hosted Services and any Updates in connection with Customer’s computing environment. Customer, not StormForge, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to use of all Customer Data and Customer Configurations, and StormForge shall not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store any Customer Data that is caused by Customer or User or the use or misuse of User IDs by a third party.
A. StormForge Materials. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Hosted Services or the StormForge Data, or to the Intellectual Property Rights therein owned by StormForge. StormForge’s name, StormForge’s logo, and the product names associated with the Hosted Services are trademarks of StormForge or third parties, and no right or license is granted to use them. StormForge (and its licensors) shall exclusively own all right, title, and interest in and to the Hosted Services and StormForge Data, copies, modifications, and derivative works thereof, excepting only the copyright in the Customer Configuration. StormForge shall own any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Hosted Services or StormForge Data, including all related Intellectual Property Rights thereto, specifically excluding Customer Data. All rights not expressly granted to Customer herein are reserved to StormForge and its licensors.
B. Customer Data. As between StormForge and Customer, Customer owns and shall retain all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Customer Data other than the Customer Configurations (which are discussed in Section 4(C) below). Notwithstanding anything to the contrary contained herein, Customer hereby grants to StormForge an irrevocable, fully paid up, worldwide, royalty free, non-exclusive, transferable, sublicensable license to use the Customer Data to: (i) provide the Hosted Services to Customer; (ii) analyze the Customer Data in anonymized and/or aggregate form in order to operate, maintain, manage, and improve the Hosted Services, create new products and services, and share and/or license this aggregate data to Affiliates, agents, business partners, and other third parties, only in connection with the provision of Services hereunder; and (iii) for StormForge’s internal purposes to improve the Hosted Services, and related services, and any other uses disclosed in or related to performance under this Agreement.
C. Customer Configurations. As between StormForge and Customer, Customer owns the copyright in any specific Customer Configuration generated hereunder. In addition, each specific Customer Configuration shall be Customer’s Confidential Information. However, for clarity, the Customer acknowledges that many Kubernetes deployments are similar, and that the Hosted System’s artificial intelligence may make similar recommendations for other StormForge clients. As such, Customer acknowledges and agrees that Customer’s ownership of the copyright in each Customer Configuration (i) does not include ownership of any concepts or inventions embodied in the Customer Configuration which are not specific and unique to Customer supplied Customer Data; (ii) will not require StormForge to obtain Customer’s consent or any form of license from Customer for StormForge to prepare similar configurations for other Customers, even if such configurations may contain the same or substantially similar copyrighted materials, and (iii) does not transfer to Customer ownership of any StormForge Data or of any portion of the Intellectual Property Rights in the Hosted Service.
A. Subscription Fees and Payment. Customer shall pay the Subscription Fees set forth in the amounts and manner as set forth in the Order Form(s). Unless otherwise set forth therein, invoices shall be due and payable within 30 days of the invoice date. All payment obligations for Subscription Fees are non-cancelable and all amounts paid are nonrefundable.
B. Late Payment, Suspension. Customer may not withhold or “setoff” any amounts due hereunder. In addition to any other legal remedies, StormForge reserves the right to suspend or terminate Customer’s access to the Hosted Services until all unpaid amounts due are paid in full. Any late payment shall be subject to any costs of collection, including reasonable attorneys’ fees, and shall bear interest at the rate of one percent (1%) per month, or, if less, the highest rate permitted by law, until paid.
C. Taxes. Prices quoted do not include, and Customer shall pay, any and all applicable taxes, including without limitation, sales, use, gross receipts, value-added, GST, personal property, or other tax (including interest and penalties imposed thereon) on the transactions contemplated herein, other than taxes based on the net income of StormForge.
D. Pricing Terms. All prices are stated and payable in U.S. Dollars. All pricing terms are confidential, and Customer agrees not to disclose them to any third party. Except as may be otherwise stated on the Order Form, and subject to StormForge’s adjustment due to unanticipated excess usage of the Hosted Services during the preceding Term, the Subscription Fee for a Renewal Term shall automatically increase by 3% plus the amount of the increase in the Consumer Price Index for All Urban Consumers (CPI-U) (or such successor index as StormForge may designate) during the preceding Term. Any other increase in Fees and charges for any Renewal Term will be effective after giving Customer 60 days’ notice thereof.
For purposes of this Section 6, a Party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.”
A. Confidential Information. “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include the terms and conditions and pricing information of this Agreement, the StormForge Data, the Customer Data, the Customer Configuration and StormForge’s Hosted Services (including, without limitation, Documentation, code, translations, compilations, implementation methodologies, partial copies, and derivative works thereof).
Confidential Information does not include information that is:(i) generally known to the public other than as a result of the act or omission of Recipient; (ii) already in the possession of Recipient prior to disclosure without any obligation of confidence; (iii) intentionally released by Disclosing Party to third parties without restriction on use and disclosure; (iv) lawfully received by Recipient from a third party without an obligation of confidence; or (v) independently developed by Recipient without access to any Confidential Information of Disclosing Party. Nothing in this Agreement will prevent the mandatory disclosure of Confidential Information pursuant to governmental order, provided that Recipient provides prompt notice of the order to Disclosing Party to the extent permissible and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the applicable information.
B. Non-Disclosure. Recipient shall: (i)not use the Confidential Information of Disclosing Party for any purpose other than the performance of its obligations and exercise of its rights hereunder; (ii) use at least the same degree of care that it uses with respect to its own Confidential Information, but in no event less than a reasonable degree of care, to avoid disclosure, publication or dissemination of Disclosing Party’s Confidential Information; (iii) disclose Disclosing Party’s Confidential Information only to its personnel who have a need to know; (iv) disclose Disclosing Party’s Confidential Information only to third parties who have previously entered into an appropriate confidential disclosure agreement with the Recipient, and to whom such disclosure has been previously authorized in writing by Disclosing Party; (v) not alter or remove from the Confidential Information any proprietary legend; and (vi) promptly report any loss of any Confidential Information to Disclosing Party. Recipient’s obligations under this Section 6(B) shall continue during the Term and for a period of 5 years thereafter, except for trade secrets, for which such obligations will continue indefinitely for so long as it remains a trade secret under applicable law.
C. Return of Confidential Information. Upon the written request of Disclosing Party or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession or control.
D. Injunctive Relief. Recipient acknowledges that violation of the provisions of this Section 6 would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.
E. PII. For the purposes of this Agreement, “Personally Identifiable Information” or “PII” means information which can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information, which is linked or linkable to a specific individual. In the event that StormForge has access to PII (with the exception of business contact information and e-mail addresses of the Customer), such access will likely be incidental. The intended purpose of the Hosted Services is not to accept or use PII. Customer shall retain control of its PII at all times. To the extent StormForge has incidental access to Customer PII, StormForge agrees to use or disclose PII only: (i) in furtherance of or in connection with performing the services pursuant to this Agreement; (ii) pursuant to a lawful subpoena, service of process, or otherwise required or permitted by law; (iii) as directed or instructed by Customer; or (iv) with prior informed consent of the individual about whom the PII pertains.
Each Party shall maintain and enforce reasonable technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of the StormForge Data and Customer Data that are at least equal to industry standards for applications similar to the Hosted Services. Because the success of this process depends on equipment, software, and services over which StormForge has limited control, Customer agrees that StormForge has no responsibility or liability for the deletion or failure to store any Customer Data or Customer Configurations stored or generated by the Hosted Services. Customer shall be responsible for backing up its own Customer Data and maintaining the operation of the Customer Kubernetes Configurations.
A. StormForge represents and warrants that: (i) the Hosted Services shall be free from material defects in materials and workmanship and perform substantially in accordance with the Documentation under normal use and circumstances; and (ii) Support Services shall be performed in a professional and workmanlike manner. StormForge shall, prior to making a new feature of the Hosted Services available, (a) scan it with commercially available anti-virus software and shall use reasonable efforts to remove viruses capable of being detected with such software, (b) not intentionally include in the Hosted Services any viruses, worms, trap doors, Trojan horses or other malicious code.
B. The warranties above shall be contingent upon the existence of all the following conditions: (i) the Hosted Services are utilized by Customer in accordance with the Documentation; (ii) Customer notifies StormForge of any warranty defect as promptly as reasonably possible after becoming aware of such defect, but in no event more than ten (10) calendar days after the performance of the applicable services; (iii) Customer has properly used all Updates made available with respect to the Hosted Services, and any updates recommended by StormForge with respect to any third-party software products that affect the performance of the Hosted Services; (iv) Customer has properly maintained all associated equipment and software and provided the environmental conditions in accordance with applicable written specifications provided by the applicable manufacturer of such equipment and software; (v) Customer has not introduced any modifications or other equipment or software that causes an adverse impact on the Hosted Services or Customer’s utilization thereof; and (vi) Customer has paid all amounts due hereunder and is not in breach of any provision of this Agreement; .
C. The Parties acknowledge that the provisions of this Section 8 have been negotiated by them and reflect a fair allocation of risk. Customer’s exclusive remedies, and StormForge’s sole liability, with respect to any breach of this Section 8 will be, at StormForge’s option, for StormForge to (i) re-perform the applicable services so that they conform thereto; (ii) promptly correct the applicable material defects that affect performance of and access to the Hosted Services (provided that, Customer notifies StormForge in writing of such defect within the applicable warranty period); (iii) provide a replacement application or service that is substantially similar in form and function reasonable acceptable to Customer; or (iv) accept termination of Customer’s access and use of the Hosted Services and refund to Customer a pro-rata portion of unused, pre-paid Subscription Fees.
A. Customer represents and warrants that: (i) Customer owns Customer Data and/or has all necessary rights to use the Hosted Services in conjunction with Customer’s Kubernetes Deployment to generate the Customer Data and to manage the Customer Kubernetes Deployment; (ii) Customer Data shall not infringe upon any third-party Intellectual Property Rights or violate any rights against defamation or rights of privacy; and (iii) Customer has not and shall not introduce into the Hosted Service any software or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
B. Customer acknowledges that the use of the Hosted Services does not require, and that StormForge does not desire to receive from Customer, the “onward transfer” of personal data of any third party. Customer shall not transfer to StormForge or the Hosted Services any personal data of a third party that is governed by the European Union General Data Protection Regulation or the UK GDPR.
A. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THIS AGREEMENT, STORMFORGE DOES NOT MAKE AND EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING BY CUSTOM, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER DOCUMENTATION OR MATERIALS NOT EXPLICITY INCORPORATED INTO THE TERMS OF THIS AGREEMENT, AND WHETHER RELATING TO COMPATIBILITY, SECURITY, AND/OR FREEDOM FROM VIRUSES, OR ANY OTHER WARRANTY, AND SPECIFICALLY, STORMFORGE MAKES NO WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. STORMFORGE’S APPLICATIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STORMFORGE IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL.
B. CUSTOMER ACKNOWLEDGES AND AGREES THAT (1) THE CUSTOMER CONFIGURATION RECOMMENDATIONS GENERATED BY THE HOSTED SERVICES ARE ONLY RECOMMENDATIONS; (2) CUSTOMER AT ALL TIMES REMAINS SOLELY RESPONSIBLE FOR THE DECISIONS AS TO CUSTOMER CONFIGURATIONS AND THE PARTICULAR REQUIREMENTS OF CUSTOMER’S OWN ENVIRONMENT; (3) STORMFORGE MAKES NO WARRANTIES AS TO THE APPROPRIATENESS OF THE RECOMMENDATIONS FOR THE PARTICULAR REQUIREMENTS OF CUSTOMER’S KUBERNETES DEPLOYMENT; AND (4) CUSTOMER IS RESPONSIBLE FOR MAKING APPROPRIATE USE OF THE CONFIGURATION SETTINGS MADE AVAILABLE BY STORMFORGE TO SET LIMITS ON THE CUSTOMER CONFIGURATION RECOMMENDATIONS AS APPROPRIATE FOR CUSTOMER’S OWN NEEDS.
A. By StormForge. Except to the extent Customer is responsible for indemnifying StormForge under Section 11(B) below, StormForge shall defend, indemnify and hold harmless Customer and its officers, directors, employees and agents against any third party claims, suits or actions (a “Claim”) that the Hosted Services or StormForge Data as provided by StormForge infringes any copyright or trade secret of a third party. This Section 11(A) sets forth StormForge’s sole liability and obligation, and Customer’s sole remedy, for any Claim alleging infringement of a third party’s Intellectual Property Rights by the Hosted Services or StormForge Data.
B. By Customer. Except to the extent StormForge is responsible for indemnifying Customer under Section 11(A) above, Customer shall defend, indemnify and hold harmless StormForge, its Affiliates and their respective officers, directors, employees and agents against any and all Claims arising from or related, directly or indirectly, to: (a) Customer’s use of the Hosted Services in violation of the restrictions in this Agreement; or (b) allegations that Customer Data or Customer Kubernetes Deployment infringes any Intellectual Property Right or data privacy right of a third party or violates any applicable local, state, federal and (if applicable) international laws, regulations and directives.
C. Indemnification Procedures. The parties’ obligations in Sections 11(A) and 11(B) are subject to the indemnified party (i) promptly informing and furnishing the indemnifying party with a copy of such Claim; and (ii) giving the indemnifying party reasonable assistance in such Claim, at the indemnifying party’s expense, and the sole control of the defense thereof and all negotiations for its compromise or settlement; provided, that the indemnifying party shall not compromise or settle any such Claim unless the indemnified party is unconditionally released from all liability.
EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 11 OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6, NEITHER PARTY SHALL BE LIABLE FOR (A) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, UNAVAILABILITY OF THE HOSTED SERVICES, OR UNAVAILABILITY OF OR DAMAGE TO THE CUSTOMER’S KUBERNETES DEPLOYMENT OR ANY OF CUSTOMER’S OTHER SYSTEMS,; OR (B) ANY DAMAGES EXCEEDING THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM. THE LIMITATIONS IN (A) AND (B) SHALL APPLY TO ALL DAMAGES ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, OR BREACH OF STATUTORY DUTY), EVEN IF CUSTOMER OR STORMFORGE IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
STORMFORGE SHALL HAVE NO LIABILITY FOR DELAYS, FAILURES OR LOSSES ATTRIBUTABLE OR RELATED, IN ANY WAY, TO ANY THIRD PARTY APPLICATION OR SERVICES.
THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY REMEDIES PROVIDED. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE APPLICATION SUBSCRIPTION AND SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.
StormForge provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer agrees to comply strictly with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required for Customer Data.
The Hosted Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.
StormForge and its licensors make no representation that the Hosted Services is appropriate or available for use in any specific jurisdictions. Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to any applicable law is prohibited. None of the Customer Data, nor any information acquired through the use of the Hosted Services, may be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes.
StormForge shall not be in default of this Agreement if prevented from performing any obligation for any reason beyond its reasonable control including, without limitation, governmental laws and regulations, terrorists acts, acts of God or the public, calamities, floods, and storms, act of public authority, injunction, war, embargo, strike, lock out, failure or delay of supplier or carrier, failure of public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond its reasonable control (a “Force Majeure Event”). To the extent failure or delay in performance is caused by such a cause, StormForge shall be excused from performance under this Agreement for so long as such circumstance continues to prevent performance.
A. Term. The Term of this Agreement (the “Term”) shall begin on the effective date of the Order Form (the “Effective Date”) and comprise the Initial Term and all Renewal Terms. The Term is non-cancellable and shall continue in full force and effect until it expires or is earlier terminated in accordance with this Agreement.
B. Initial Term. The initial term of this Agreement shall begin on the Effective Date and continue for until the end of the Term set forth on the Order Form, or, if no term is set forth on the Order Form, for one year (the “Initial Term”).
C. Renewal Term(s). Upon the expiration of the Initial Term or any Renewal Term, unless either party provides the other with notice of non-renewal at least 60 days prior to such expiration, this Agreement will automatically renew for successive one-year terms (each, a “Renewal Term”).
A. Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement if the other Party (1) materially breaches it and fails within 30 days after receipt of notice of default to correct such breach, or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion; or (2) commences voluntary or involuntary winding up, or makes an assignment of substantially all its assets for the benefit of its creditors, or a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 120 days. Any breach of Customer’s payment obligations or unauthorized use of the Hosted Services will be deemed a material breach of this Agreement.
B. Termination Without Cause. Customer may terminate this Agreement in the event that it is required to cease its use of the Hosted Services by laws or regulations, which become effective after the Effective Date, and which are applicable to Customer. Other than the foregoing, in no event shall there be termination for convenience during the Initial Term or a Renewal Term of this Agreement or a refund or cancellation of any Initial Term or Renewal Term Subscription Fees. The Subscription Fees have been negotiated by the Parties and reflect special pricing and allocation of resources by StormForge.
C. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement, Customer shall have no further rights to access or use the Hosted Services. StormForge will make available to Customer a file of the Customer Data within 30 days thereafter if Customer so requests in writing at the time of expiration or termination. StormForge has no obligation to retain the Customer Data, and may delete such Customer Data, after such thirty-day period after termination, if Customer does not request a file of Customer Data. In the event of termination due to Customer’s breach, StormForge may apply a reasonable time and materials fee to make available to Customer the file of Customer Data.
A. Integration. This Agreement, together with the Order Form, constitutes a complete and exclusive final written expression of the terms of agreement between the Parties regarding the subject matter hereof. It supersedes all earlier and contemporaneous agreements, understandings and negotiations concerning the subject matter.
B. Amendment. There will be no modification to this Agreement unless it is in writing signed by duly authorized representatives of each Party. Any representations, promises, warranties or statements made by either Party that differ in any way from the terms of this Agreement will not be binding on either Party and will be void unless made in writing and signed by a duly authorized representative of each Party. Other than the Order Form or a valid amendment in writing signed by the Parties, no document or pre-printed form shall be used to modify, interpret, supplement, add to, or alter in any way the terms and conditions of this Agreement. Any restrictive endorsement on any check or any instrument of payment to a Party that purports to alter this Agreement or any of the Parties’ rights will be deemed void and of no force or effect.
C. Assignment or Change in Control. This Agreement may not be assigned by either Party without the prior written approval of the other Party, but may be assigned without consent in the event of a merger, reorganization or other sale of the Party’s securities, business or assets in which the surviving entity owns or controls more than 50% of the acquired Party and agrees in writing to assume the obligations under this Agreement. Any purported assignment in violation of this Section 17(C) shall be void. If Customer’s change of control or
assignment of the Agreement in connection with the foregoing would result in either (a) materially different or broader usage of the Hosted Services by the acquiring or surviving entity, or (b) access to the Hosted Services by a competitor to StormForge (each as determined by StormForge in its reasonable discretion), then StormForge may upon written notice terminate this Agreement.
D. Independent Contractors. The relationship between StormForge and Customer has been and will continue to be that of independent contractors. Neither Party is the legal representative, agent, joint venturer, partner, employee, or employer of the other Party under this Agreement for any purpose whatsoever. Neither Party has any right, power, or authority under this Agreement to assume or create any obligation of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect. This Agreement does not create or imply any partnership, agency or joint venture between the Parties.
E. Security; No Conflicts. Each Party agrees to inform the other of any information made available to the other Party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each Party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the Party or create any conflict of interest and shall promptly notify the other Party if any such conflict arises during the Term.
F. Insurance. Each Party shall maintain adequate insurance protection covering its respective activities hereunder, including coverage for statutory workers’ compensation, comprehensive general liability for bodily injury and tangible property damage, and shall provide Certificates of Insurance to the other Party, upon reasonable request, evidencing such coverage and amounts.
G. Governing Law, Jurisdiction, and Venue. This Agreement (and the right and obligations of the Parties with respect to their relationship under this Agreement) are governed by and must be construed and enforced in accordance with the laws of the State of Delaware, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The Parties hereto consent to the jurisdiction of all federal and state courts in Delaware, and agree that venue lies exclusively in Wilmington, Delaware. Any claim by one Party against the other Party must be brought within three years after it arose, or be barred. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act shall not apply to this Agreement.
H. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
I. Waiver. The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
J. Customer List. Customer consents to the use of Customer’s name and the Customer’s logo, exactly in the form as provided by Customer to StormForge, in StormForge’s customer list on its website and in its marketing materials, during the Term of this Agreement.
K. Survival. Any rights, obligations, or required performance of the Parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
L. Attorneys’ Fees. The prevailing Party in any action or proceeding to enforce this Agreement, including any efforts to collect amounts due under this Agreement by engagement of any attorney, collection agency or otherwise, is entitled to recover from the other Party its costs and attorneys’ fees in addition to any damages available to such Party.
M. Notices. Any notice, demand, request, or other communication required or permitted to be given under this Agreement must be made in writing, properly addressed to the Party to receive notice at the address set forth on the Order Form hereof or at such other address for notice as such Party may hereafter designate by written notice to the other Party given in the manner provided herein, and will be deemed given and received: (i) upon receipt if personally delivered; (ii) on the next business day after delivery to a nationally-recognized overnight courier service; (iii) on the third business day after deposit with the U.S. Postal Service if sent by certified or registered mail, return receipt requested, postage prepaid; or (iv) to the extent applicable, by such other method as may be expressly permitted in this Agreement for certain communications.
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