These Engine Yard Managed terms of service (“Terms of Service”) govern the provision by Engine Yard, Inc. (“Engine Yard”) to you (if you are accepting these Terms of Service in your individual capacity) or the company of which you are a duly authorized employee or agent (“Customer”) of Engine Yard’s Managed platform and application hosting and support services for such platform (such platform and services, collectively, the “Services”), and Customer’s usage of the same.
1. Services. Engine Yard shall use commercially reasonable efforts to provide the Services ordered by Customer pursuant to any service order form submitted by Customer and accepted by Engine Yard through the service order form process designated on its website located at http://www.engineyard.com/ (or any successor URL controlled by Engine Yard) (“the Website”) or any written service order form executed by Customer and Engine Yard, in each case to order Services (“Service Order Form”). These Terms of Service are incorporated by reference into each Service Order Form, and by submitting a Service Order Form, Customer acknowledges that it has read and understood and agrees to be bound by these Terms of Service. The Service Order Form(s) and these Terms of Service constitute this “Agreement” as used hereinafter. In the event of any conflict between these Terms of Service and a Service Order Form, the Service Order Form shall govern to the extent of such conflict.
Support Services are defined in the Engine Yard Support Policies section of the Website at http://www.engineyard.com/products/support-policies, as updated from time to time based on Engine Yard’s then-current business practices.
2. Payments.
(a) Fees. Customer agrees to pay the fees set forth in the Service Order Form. Engine Yard’s first invoice shall include a pro-rated portion of the monthly recurring fees for the period beginning on the date Engine Yard sends an e-mail to Customer providing access codes and passwords for use in connection with the Services (“Commencement Date”) and ending on the last day of that calendar month. The first invoice may also include set up fees or fees for other Services. Engine Yard may require Customer to pay the first invoice in full before providing the Services. Thereafter, unless otherwise specified in a Service Order Form, monthly recurring fees shall be invoiced in advance on or around the first day of each calendar month. Fees for hosting Services that are subject to metered pricing may have different payment terms, as specified in the applicable Service Order Form or on the portion of the Website that sets forth pricing terms for such Services. All invoices for Services are due within thirty (30) days after Customer’s receipt of the applicable invoice; provided that if a Service Order Form specifies that Customer shall pay by credit card, Engine Yard shall automatically bill Customer’s credit card in advance for each month’s Services and email a corresponding sales receipt to Customer. Unless otherwise set forth in a Service Order Form, all payments from Customer to Engine Yard in connection with this Agreement shall be made in United States dollars.
(b) Collections. Engine Yard may suspend any or all Services if any invoiced amount that is not disputed in good faith by Customer for any Service is overdue for a period of 15 or more days after the date of first written notice (including by email) from Engine Yard regarding such overdue payment. Customer agrees to pay Engine Yard’s then-current reinstatement fee following a suspension of Services for non-payment, as a condition to reinstatement of Services. Engine Yard may charge interest on amounts that are overdue by 10 days or more at the lesser of 1.5% per month or the maximum rate permitted by law, plus all reasonable expenses and costs of collection.
(c) Early Termination. Without limiting any other remedy available to Engine Yard, if Engine Yard terminates this Agreement for Customer’s breach in accordance with any of clauses (i) through (iv) of Section 10(b) or Customer terminates this Agreement for convenience in accordance with Section 10(a), then Customer shall pay all fees due under this Agreement, including all fees that would have been owed for the remaining portion of the term of this Agreement absent such early termination, within 10 days following the effective date of such termination. In the event of any other termination of this Agreement, Customer shall pay all fees accrued through the effective date of such termination (including as pro-rated).
(d) Taxes. Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on any of the Services under this Agreement (“Taxes”). Customer shall be liable for and shall pay any and all such Taxes and related charges, however designated, imposed on the provision of the Services (excluding taxes based solely on Engine Yard’s net income) regardless of whether Engine Yard fails to collect the tax at the time the related Services are provided. When Engine Yard has the legal obligation to pay or collect such Taxes, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Engine Yard with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Engine Yard original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.
3. Restrictions, Compliance with Laws and Other Matters.
(a) Prohibited Behavior. In connection with the Services, Customer shall not, and shall not permit any users of Customer’s applications hosted by Engine Yard as part of the Services (such applications, “Customer Applications”, and such users, “Users”) or any other third party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Engine Yard to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Engine Yard or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Customer Application or Services; (ii) interference with others’ usage of the Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software unless (1) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (2) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “add/remove” tool); (vi) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right; (vii) collection, storage, publication, transmission, viewing or other use of any content that, in Engine Yard’s opinion, (1) is obscene, (2) constitutes or promotes child pornography, (3) is excessively violent, incites or threatens violence, or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, or (6) creates a safety or health risk to an individual or the public; (viii) any other activity that places Engine Yard in the position of fostering, or having liability for, illegal activity in any jurisdiction, or that violates the acceptable use policy or similar set of terms of any provider of any third party service that is a component of the Services (such services, “Third Party and Platform Services”, and such providers, “Third Party and Platform Service Providers”) that has been made available to Customer; or (ix) attempting to probe, scan, penetrate or test the vulnerability of an Engine Yard system or network or to breach Engine Yard’s security or authentication measures, whether by passive or intrusive techniques. If any IP address corresponding to any Customer Application becomes listed on Spamhaus, Spews, NJABL or any other reputable abuse database, then Customer will be deemed to be in breach of this Section 3(a), regardless of whether or not the IP numbers were listed as a result of Customer’s actions. Engine Yard may suspend the provision of Services to Customer if Customer or a User engages in any of the foregoing activities. If any Third Party and Platform Service Provider’s acceptable use policy or similar set of terms changes, then Customer shall be bound by such revised policies or terms upon notice thereof, provided that if any such change has a material adverse effect on the functionality of the Services or materially increases the price of the Services, Customer may, as its sole and exclusive remedy, terminate this Agreement upon written notice to Engine Yard within thirty (30) days after notice of such change.
(b) Security. Customer shall take all reasonable security precautions in connection with its use of the Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Services and shall change its passwords periodically. If the Customer Application is hacked or otherwise accessed by a third party without authorization, then Engine Yard may take the Customer Application offline until Engine Yard determines that the intrusion is finally resolved.
(c) Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Customer Application and Services, including, as applicable, the CAN-SPAM Act of 2003 and all other laws and regulations applicable to bulk or commercial email. Customer shall establish a process to respond to notices of alleged infringement or illegal content that complies with applicable law. Customer acknowledges and agrees that (i) Engine Yard may, but is not obligated, to monitor Customer’s compliance, and (ii) Engine Yard may, without liability to Customer, block or take down the transmission of email or other content in Customer’s application or otherwise that, in Engine Yard’s opinion, violates any law or regulation or otherwise imposes any liability on Engine Yard. Engine Yard reserves the right to suspend or terminate Customer’s account or Application if Engine Yard determines, in its reasonable opinion, that the content in Customer’s Application or otherwise is in breach of applicable law.
(d) Cooperation with Investigations and Legal Proceedings. Engine Yard may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or its Users that Engine Yard believes violates applicable criminal law, and (ii) provide any information that it has about Customer or its Users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
4. Customer Application; Customer Account.
Customer is solely responsible for its Customer Application, including for (i) controlling the access to, and use and security of, the Customer Application and the data residing in or processed via the Customer Application, (ii) maintaining the security of the passwords and other measures used to protect access to Customer’s Engine Yard account, and (iii) all instructions provided to Engine Yard through Customer’s account, whether or not authorized by Customer. Customer must have valid and current information on file with its domain name registrar and may only use IP addresses assigned to it by Engine Yard.
5. Suspension of Services.
Engine Yard may suspend the provision of Services to Customer or remove any data or content transmitted via the Services without liability (i) if Engine Yard reasonably believes that any Service is being used in violation of this Agreement or applicable law, (ii) if requested by a law enforcement or government agency or otherwise in order to comply with applicable law, provided that Engine Yard shall use commercially reasonable efforts to notify Customer prior to suspending Services as permitted under this Agreement, or (iii) as otherwise specified in this Agreement. Information on Engine Yard’s servers may be unavailable to Customer during a suspension of Services.
6. Warranties.
(a) Engine Yard. Engine Yard warrants that the Engine Yard Managed platform will operate in substantial conformity with the then current version of the applicable documentation located at http://www.engineyard.com/products/technology/stack.
(b) Customer. Customer represents and warrants that (i) the information Customer has provided for the purpose of establishing an account with Engine Yard is complete and accurate, and (ii) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information throughout the term of this Agreement.
7. Indemnification.
(a) Engine Yard. Engine Yard shall indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, penalties, fines, damages or costs (including reasonable attorneys’ fees) (“Losses”) incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer alleging that the use of the Services, as contemplated hereunder, infringes any U.S. patent, or infringes any copyright or misappropriates any trade secret, of a third party. Notwithstanding the foregoing, if Engine Yard reasonably believes that Customer's use of any portion of the Services is likely to be enjoined by reason of a claim of infringement or misappropriation of any third party intellectual property rights, then Engine Yard may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Services; (ii) replace the same with other non-infringing software, services or other material of substantially equivalent functions; or (iii) modify the applicable software, services or other material so that there is no longer any infringement or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Engine Yard’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, then Engine Yard may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount of any pre-paid fees based on the period of time that would have remained absent such early termination in Customer’s pre-paid term following the effective date of such early termination. This Section 7(a) shall not apply: (1) if the Services are combined with other non-Engine Yard products, applications or processes not authorized by Engine Yard, but solely to the extent the alleged infringement is caused by such combination; (2) if any component of the Services is modified by or on behalf of Customer without Engine Yard’s prior written consent, but solely to the extent the alleged infringement is caused by such modification; (3) to any unauthorized use of the Services; or (4) to the Customer Applications or any data or content contained therein or transmitted thereby. THIS SECTION 7(a) SETS FORTH ENGINE YARD’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
(b) Customer. Customer shall defend, indemnify and hold harmless Engine Yard from and against any and all Losses resulting from Claims against Engine Yard arising out of or related to any of the following: (i) actual or alleged use of the Services (including the Customer Application) in violation of this Agreement or applicable law by Customer or any Users (including any actual or alleged infringement or misappropriation of third party intellectual property rights by the Customer Application or arising from data or other content posted or stored on the Services or the Customer Application by Customer or its Users); (ii) any dispute between Customer and its customers, contractors or Users; (iii) the operation or use of any Customer Application or any data or content contained therein or transmitted thereby; or (iv) any violation by Customer, its customers, contractors or Users, of any terms, conditions, agreements or policies of any Third Party or Platform Service Provider. Customer shall not settle any claim under this Section 7(b) without the prior written consent of Engine Yard.
(c) Procedure. Each party's indemnity obligations are subject to the following: (i) the indemnified party will promptly notify the indemnifying party in writing of the Claim; (ii) the indemnifying party will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifying party may not settle or defend any Claim without the written consent of the indemnified party unless it unconditionally releases the indemnified party of all liability); and (iii) the indemnified party will reasonably cooperate in, and execute all documents necessary for, the defense of such Claim, at the indemnifying party’s expense.
8. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND ENGINE YARD, FOR ITSELF, ITS PARENT, AND ALL OF ENGINE YARD’S SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS, DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NEITHER ENGINE YARD NOR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS WARRANTS OR REPRESENTS THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability.
EXCLUDING A PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT UNLESS OTHERWISE EXPRESSLY AGREED IN A SERVICE ORDER FORM, THE SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES ENGINE YARD AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA. EXCLUDING A PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 7, THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), SHALL NOT EXCEED THE AMOUNTS PAID (OR, IN THE CASE OF CUSTOMER’S LIABILITY, PAYABLE) IN THE LAST SIX (6) MONTHS PRIOR TO THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE, OR FOR FRAUD.
10. Termination.
(a) Customer.
This Agreement shall be in effect during the term specified on the applicable Service Order Form. Customer may terminate this Agreement for convenience upon thirty (30) days written notice to Engine Yard, subject to the acceleration of all remaining fees in accordance with Section 2(c). Customer may also terminate this Agreement without liability (except for amounts due for Services through the effective date of termination) if Engine Yard materially breaches this Agreement and fails to cure such breach within 30 days of Customer’s written notice describing the breach in reasonable detail.
(b) Engine Yard.
Engine Yard may terminate this Agreement without liability as follows: (i) if Customer is paying by credit card and Customer’s credit card payment is declined by the card issuer, then Engine Yard shall notify Customer in writing and Customer shall have 48 hours to remedy such payment failure, and if such failure is not remedied in such time period, then Engine Yard may terminate the applicable Service Order Form or this Agreement by providing Customer 48 hours notice of such termination; (ii) without limiting subsection (i), upon written notice if Customer is overdue on the payment of any amount due hereunder for a period of 15 or more days; (iii) upon written notice if Customer materially violates any other provision of this Agreement and fails to cure the violation within 30 days of notice from Engine Yard; (iv) upon one (1) Business Days notice if Customer uses the Services in violation of a material term of this Agreement more than once (after having received notice from Engine Yard regarding the initial violation); or (v) upon five (5) Business Days notice if Engine Yard is threatened with a legal claim for intellectual property infringement related to the provision of a Service and is unable through commercially reasonable efforts to obtain a license or modify such Service in a way that avoids an ongoing risk of liability. A “Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Standard Time, excluding any day that banks in the United States are required or permitted to be closed.
11. Use of Data; EU Data Subjects; Security.
(a) Customer Data. Engine Yard may use, process, transfer and disclose personally identifiable information and other personal data of Customer and its Users that is stored in a Customer Application or otherwise as part of the Services (collectively, “Customer Data”) only to the extent necessary to provide the Services or as otherwise may be permitted under applicable law; provided that Engine Yard may also disclose Customer Data (i) to third parties in connection with the provision of Services (provided such third parties are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include “Direct Customer Information” as defined below.
(b) Direct Customer Information. Engine Yard’s use and disclosure of Customer contact, payment, financial and similar information collected by Engine Yard directly from Customer (“Direct Customer Information”) is governed by Engine Yard’s Privacy Policy located at http://www.engineyard.com/policies/privacy. In addition, Engine Yard may transfer Customer Data and Direct Customer Information to a third party in connection with a merger or sale of Engine Yard’s business or assets, in which case the resulting transferee will be permitted to obtain and use such information subject to the terms of this Agreement and Engine Yard’s Privacy Policy. Customer warrants that it has the appropriate and necessary consents to permit the transfer by Engine Yard of Customer Data and Direct Customer Information to a third party in accordance with and for the purposes set out in this Section 11(b).
(c) EU Data Subjects. If Engine Yard receives any Customer Data constituting “personal data” as defined in the EU Data Protection Directive 95/46/EC (as may be amended from time to time) (“EU Data Protection Directive”) from Customer or its Users in connection with the Services, including any such Customer personal data that may be collected by or stored in the Customer Application or otherwise hosted on servers owned or controlled by Engine Yard, then Customer agrees that: (i) Customer is the data controller with respect to such Customer Data; and (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such Customer Data, including obtaining all necessary consents from relevant EU “Data Subjects” (as defined in the EU Data Protection Directive) and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights under the relevant data protection law. Engine Yard will act as the data processor of such Customer Data and in that capacity will use commercially reasonable efforts to assist Customer in enabling it to comply with the applicable data protection law. Customer acknowledges that Engine Yard utilizes servers located in the United States, and consents to the transfer of Customer Data to the United States. Customer further acknowledges and agrees that any data or information stored by Customer on such servers is subject to the laws of the United States, including copyright, privacy and defamation laws.
(d) Data Security. Engine Yard will use commercially reasonable efforts to prevent the unauthorized access, use or disclosure of Customer Data and Direct Customer Information located on Engine Yard servers, including the implementation of industry-standard measures designed to maintain the security of such data. Customer acknowledges, however, that Engine Yard cannot guarantee the security of such data given the nature of the Internet.
12. Service Levels.
Engine Yard shall use commercially reasonable efforts to provide the Services in accordance with the availability commitments set forth in the Engine Yard Managed Service Level Agreement located at http://www.engineyard.com/policies/managed-sla (the “Managed SLA”); provided, however, that the Engine Yard Managed SLA will not apply unless Customer maintains, in full, the following minimum configuration in connection with its use of the Services: (a) at least two (2) application servers; (b) at least two (2) database servers; and (c) at least one (1) staging server. The Engine Yard Managed SLA is hereby incorporated by reference into this Agreement. Engine Yard may modify the Engine Yard Managed SLA upon thirty (30) days written notice to Customer, provided that if such modification materially reduces the availability levels or service credits available to Customer, then Customer may, as its sole and exclusive remedy, terminate this Agreement upon written notice to Engine Yard within fifteen (15) days after the delivery of notice of such modification.
13. Third Party and Platform Services.
(a) Third Party and Platform SevicesTerms; Disclaimer. Certain components of the Services are comprised of Third Party Services, and Engine Yard may perform its obligations hereunder through third party providers of such Third Party Services. In addition, Engine Yard may make available to Customer certain third party software, services, or other products that are included as part of the Services (“Platform Services”) and/or may provide support to Customer in relation to those Platform Services. Platform Services are listed on Exhibit A. For all Third Party and Platform Services, Customer shall agree to terms of use or service, or license or other agreements or policies applicable thereto, including any modifications thereto mandated by the applicable provider. Customer shall be responsible for strict compliance with, and any liability arising from any violation of, any such terms or agreements. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT WITH RESPECT TO THIRD PARTY AND PLATFORM SERVICES THAT ARE PART OF THE SERVICES, ENGINE YARD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THIRD PARTY AND PLATFORM SERVICES OR RELATED SUPPORT SERVICES AND, AS BETWEEN CUSTOMER AND ENGINE YARD, SUCH THIRD PARTY AND PLATFORM SERVICES AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, ENGINE YARD SHALL HAVE NO LIABILITY FOR LOSS, DESTRUCTION, ALTERATION OR UNAUTHORIZED ACCESS TO DATA OR OTHER CONTENT STORED OR TRANSMITTED USING THIRD PARTY OR PLATFORM SERVICES.
(b) Third Party and Platform Services Changes. Engine Yard may suspend or terminate a Third Party or Platform Service upon written notice to Customer if the Third Party or Platform Service is suspended or ceases to be provided for any reason, whether generally or through Engine Yard. Engine Yard may modify the pricing charged to Customer or features available with respect to such Third Party or Platform Service if the relevant provider modifies the pricing or features of such Third Party or Platform Service. Engine Yard shall use reasonable efforts to provide Customer a reasonable notice period with respect to any such suspension, termination or price or feature modification, which period Customer acknowledges may be determined in part by the amount of notice the relevant provider furnishes to Engine Yard of such events. If any such event has a material adverse effect on the functionality of the Services or materially increases the price of the Services, Customer may, as its sole and exclusive remedy, terminate this Agreement upon written notice to Engine Yard within fifteen (15) days after the occurrence of such event.
14. Notices. All notices to Engine Yard under this Agreement (including notices required to be in writing) may be sent to Engine Yard via e-mail through Customer’s Engine Yard online support account. Notices to Customer under this Agreement shall be given via email to the individual designated as Customer’s “Customer Contact” on the applicable Service Order Form, or as specified in Section 15(d). Notices are deemed received on the day delivered, or if that day is not a business day, as of the beginning of the first business day following the day delivered.
15. Miscellaneous.
(a) Non-Solicitation. During the term of this Agreement and for 12 months thereafter, each party agrees that it shall not solicit for employment any employee of the other party with whom it has had direct contact in connection with this Agreement. Notwithstanding the foregoing, neither party shall be precluded from (i) hiring an employee of the other party who independently approaches the hiring party, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If a party violates this provision, in addition to any other right the non-breaching party may have at law or in equity, the breaching party shall make a one-time payment to the non-breaching party in the amount of thirty percent (30%) of the relevant employee’s then current annual base salary.
(b) Ownership; Licenses. As between the parties, Engine Yard owns and shall retain all rights in the Services (including all related infrastructure), Engine Yard’s trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights. Engine Yard grants Customer a non-exclusive license during the term of this Agreement to access and use the Services solely in accordance with the terms of this Agreement. Customer grants Engine Yard (and its subcontractors) a non-exclusive, worldwide, royalty-free, sublicensable license, during the term of this Agreement and thereafter as contemplated in this Section 15(b), to use, reproduce, modify, publicly perform, publicly display and distribute any data or content Customer provides to Engine Yard, for purposes of providing the Services hereunder. In addition, Engine Yard shall have the right, but not the obligation (except as specified in the next sentence), to retain copies of Customer Data for legal compliance purposes. Upon written request by Customer made within thirty (30) days after termination of this Agreement, Engine Yard will provide Customer with temporary access to the Services solely for Customer to retrieve such content and data. After such 30-day period, Engine Yard will have no obligation to maintain or provide access to such content and data and will have the right to delete all such content and data in its possession or control.
(c) Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California, USA, excluding its conflicts of laws rules. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE OR FEDERAL COURTS IN SAN FRANCISCO COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. The parties ALSO waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Notwithstanding the foregoing, either party may bring an action in any jurisdiction to enforce its intellectual property rights, its rights in confidential information, or payment obligations.
(d) Modifications. Engine Yard may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting such changes on the Website, or other reasonable means. Customer’s continued use of the Services after Engine Yard’s provision of a notice of an updated version of the Terms of Service shall constitute Customer’s consent to such updated Terms of Service, provided that if any such updated version has a material adverse effect on the functionality of the Services or materially increases the price of the Services, then Customer may, as its sole and exclusive remedy, terminate this Agreement upon written notice to Engine Yard within thirty (30) days after notice of such updated version. Engine Yard may make modifications to any of the Services in its discretion, provided that such modifications do not materially adversely affect the features or functionality of the Services.
(e) Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein.
(g) Survival. Sections 2, 7, 8, 9, 10, 13, 14, and 15 will survive any expiration or termination of this Agreement.
(h) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(i) No Third Party Beneficiaries. Except with respect to Section 8 as it applies to Engine Yard’s parent, subsidiaries, affiliates, suppliers and licensors, there are no third party beneficiaries to this Agreement.
(j) Severability. In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.
(k) Marketing. Customer grants Engine Yard the right to use Customer’s name, mark and logo on Engine Yard’s website and in Engine Yard’s promotional materials solely to identify Customer as a customer of Engine Yard, in accordance with any usage guidelines delivered by Customer to Engine Yard.
(l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other, and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Engine Yard may provide the Services to any person or entity, including a competitor of Customer.
(m) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Engine Yard may assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.
(n) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.
New Relic Terms of Service
Welcome to the RPM application performance monitoring service (the “Service”), a service of New Relic, Inc. (“New Relic”, “we”, or “us”). Please read these Terms of Service carefully, as they contain the legal terms and conditions that govern your use and access of the Service. New Relic reserves the right to update and change the Terms of Service from time to time by posting an updated version of such Terms of Service at http://rpm.newrelic.com/terms of service no later than thirty (30) days prior to the posted effective date of such update. If you continue to use or access the Service after the posted effective date, you hereby agree to the updated Terms of Service. Unless New Relic otherwise indicates, your use of any new features, changes, and enhancements to the current Service, including the release of new features and resources, shall be subject to the Terms of Service.
BY SIGNING UP FOR AN ACCOUNT OR BY USING THE SERVICE, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR CORPORATE END USER THAT IS SPECIFIED IN THE REGISTRATION INFORMATION ASSOCIATED WITH SUCH END USER’S ACCOUNT FOR THE SERVICE.
Account Terms
You must provide your legal full name, a valid email address, and any other information requested during the account signup process in order to obtain an account. You must ensure that all account information remains complete and accurate.
You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
You are responsible for maintaining the security of your account and password, and are responsible for all activities conducted using your account and password. New Relic cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
You may not use the Service for any illegal or unauthorized purpose. Without limiting the foregoing, you may use the Service only in accordance with the use parameters of your account’s plan level (“Plan Level”), including host limitations, and you agree not to attempt to circumvent such limitations.
Cancellation and Termination
You will continue to be billed for the Service until New Relic terminates your account in accordance with these Terms of Service or you properly cancel your account. You are solely responsible for properly canceling your account. You can cancel your account by using the New Relic Admin console.
If you cancel the Service before the end of your current paid up month, your cancellation will take effect upon completion of the billing cycle that has already been paid.
New Relic, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other New Relic service, for any reason at any time. Such termination of the Service will result in the suspension or deletion of your Account or your access to your Account. New Relic reserves the right to refuse service to anyone for any reason at any time.
Modifications to the Service and Prices
New Relic reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days notice from New Relic. Such notice may be provided at any time by posting the changes to the New Relic Site (rpm.newrelic.com or www.newrelic.com) or the Service itself. If you do not agree to such pricing change, you may cancel your account during such 30-day period. By continuing to use the Service after the effective date of such pricing change, you hereby agree to such pricing change.
New Relic shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Software Licenses, Copyright and Content Ownership
All software (including the RPM agent) that is furnished to you in connection with the Service is provided subject to the terms of a separate end-user license agreement that accompanies such software. You agree to abide by the terms of such end-user license agreement in your use of such software.
The Service (including all of its software and technology components), together with all intellectual property rights therein, are the exclusive property of New Relic and its suppliers. The look and feel of the Service is copyright ©2008 - 11 New Relic, Inc. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of the Service without express written permission from New Relic. Other trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners.
Service Level Commitment
New Relic is committed to providing our customers with a great experience with our products. RPM is provided using the software-as-a-service model. In this model, the software you use to manage your application is comprised of two components: The RPM Agent, which is a small software module that is deployed inside your application; and the Service which is a set of software programs that collect, store, correlate and present the metric data sent from the Agent in your application to our service. The service level within New Relic's control is the Availability of the Service. The Service shall be considered Available so long as customers are able to log in to the RPM user interface and see application performance data. We endeavor to make the Service Available at all times with the exception of very short maintenance windows that occur periodically throughout the month. New Relic will use commercially reasonable efforts to maintain Service Availability of at least 99.8% during any monthly billing cycle. Excluding planned maintenance periods, in the event the Service Availability drops below 99.8% for two consecutive monthly billing cycles or if the Service Availability drops below 99.0% in any single monthly billing cycle, you may terminate the Service with no penalty. Such termination will be effective as of the end of the then-current billing period and no additional fees shall be charged. Customers may request the service level attainment for the previous month by filing a support ticket on our RPM Support Site.
General Conditions
Your use of the Service is at your sole risk, and New Relic makes no representations that the Service will accurately diagnose or correct every performance problem in your application.
Technical support is only provided to users that have paid for a Plan Level, and no technical support is available for any free Plan Levels. Technical Support shall be provided in accordance with the terms and conditions set forth in the New Relic Support FAQ, available at http://support.newrelic.com/faqs.
You understand that New Relic uses third party vendors and hosting partners to provide the necessary hardware, software, networking, and related technology required to run the Service. New Relic is not responsible for any failures attributable to third parties.
You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, New Relic, or any other New Relic service.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by New Relic.
You understand that the technical processing and transmission of the Service may be transferred unencrypted over a network, and assume all risks related thereto. New Relic shall not be liable to you for any liabilities arising from the operation of the Service over the Internet or other network.
You must not transmit any worms or viruses or any code of a destructive nature.
If the amount of data collected in providing your Service significantly exceeds the average amount of data collected (as determined solely by New Relic) of other New Relic customers at your subscription level, we reserve the right to immediately disable your account or throttle your Service until you can reduce your bandwidth consumption.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEW RELIC EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEW RELIC DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE COMPLETE, ACCURATE, OR RELIABLE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEW RELIC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NEW RELIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING ANY SUCH DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; TERMINATION OF YOUR ACCOUNT; OR ANY OTHER MATTER RELATING TO THE SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEW RELIC’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS (U.S. $50) OR THE AMOUNTS YOU PAID TO NEW RELIC IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
Miscellaneous
This Agreement shall be governed by the laws of the State of California without giving effect to any conflicts of laws principles that may require the application of the law of a different jurisdiction. For any dispute or proceeding arising from or relating to this Agreement, you agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in San Francisco County, California, and in the federal courts located in the Northern District of California. The failure of New Relic to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and New Relic and govern your use of the Service, superseding any prior agreements between you and New Relic (including, but not limited to, any prior versions of the Terms of Service).
These Terms of Service were last updated on November 30, 2009. You can review the most current version of the Terms of Service at any time at: http://rpm.newrelic.com/terms_of_service. Questions about the Terms of Service should be sent to info@newrelic.com.
