PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CLUSTER LABS, INC (“COMPANY”). YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING THE “SUBMIT” (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER” OR “YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. Use of Services; Restrictions. During the Term (as defined below) and subject to compliance with the provisions of this Agreement, Company grants to Customer a personal, nonsublicensable, nonexclusive license to access the Company services used or ordered by Customer (the “Services”) solely in accordance with the documentation supplied by Company, solely for Customer’s internal business purposes. Customer’s use of the Services shall be subject to any additional limitations (e.g., maximum number of seats, developers, or instances) which are set forth on the Services, and Customers use of any paid portion of the Services shall be subject to the payment of all applicable fees. Any documentation or underlying software obtained by Customer in connection with Services (including, without limitation, the Company SDK) is deemed to be a part of Services and is subject to all the disclaimers, limitation and restrictions herein relating to the Services. Customer shall not: (i) reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services or any part thereof, or provide on a service bureau basis, use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) reverse assemble, reverse compile or reverse engineer any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying Proprietary Information (as defined below), except to the extent that such restriction is prohibited by applicable law; (iv) access (or attempt to access) the Services in any unauthorized manner or attempt to circumvent any access controls on the Service or any component or feature thereof; or (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof. Customer represents and warrants that its use of the Services will be in compliance with all applicable laws and regulations.
2. Modifications. Company reserves the right, at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Services or by sending you an email. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
3. Security; Support. Company shall use reasonable commercial efforts to maintain the security and integrity of the Services; Notwithstanding anything to the contrary, Company’s obligations under this section shall not apply during any Trial Period (as defined below). Company shall have the right (but not the obligation) to modify, update, upgrade or extend the Services (including, without limitation, for the purposes of adding feature and functionality, or enhancing security or usability).
5. Fees. Some of the Company Services are currently free, but Company reserve the right to charge for certain or all Services in the future. We will notify you before any Services you are currently using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. For Services that require payment by Customer, Customer shall pay Company all fees applicable to the particular Services ordered by Customer (“Fees”). All Fees paid to Company hereunder are nonrefundable. Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Company’s net income), unless Customer provides to Company a valid tax-exempt certificate. Company may change the Fees from time to time hereunder; provided that any change in Fees shall not go into effect until the commencement of the next Renewal Term (as defined below) that follows such notice.
6. Warranty Disclaimer. The parties acknowledge that the Services are provided “AS IS”. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, COMPANY AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER COMPANY NOR ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE OR AVAILABLE AT ANY GIVEN TIME.
7. Limitation of Remedies and Damages. NEITHER COMPANY NOR ITS SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, (D) FOR AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR $100, WHICHEVER IS GREATER, OR (E) FOR ANY MATTER BEYOND COMPANY’S OR ITS SUPPLIERS’ OR LICENSORS’ REASONABLE CONTROL, IN EACH CASE EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Third Party Materials. Customer acknowledges and agrees that: (i) the Services may incorporate certain information, data and materials received from Company’s third party licensors and data vendors (“Third Party Materials”); (ii) Third Party Materials may only be used in conjunction with the Service; and (iii) Customer’s use of Third Party Materials shall be subject to any separate license terms which are applicable to such Third Party Materials. Company does not provide support for Third Party Materials.
9. Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.
10. Miscellaneous. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer, and any such attempted assignment or transfer shall be void and without effect. Company may freely assign its rights and obligations under this Agreement and transfer this Agreement without consent. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto and related to the subject matter hereof are expressly canceled. Customer shall indemnify and hold harmless Company from any and all claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) arising in connection with (i) any breach of this Agreement by Customer, (ii) Customer’s Applications, or (iii) Customer’s use of the Services. The parties agree that the provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the other party. Nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof. Customer acknowledges and agrees that due to the unique nature of Company’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with Company resulting in irreparable harm to Company, and therefore, that upon any such breach or threat thereof, Company shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law (without the requirement of posting a bond). The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
Effective Date: February 12, 2015