IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT USE THE SERVICES. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT.
2.1.Access to Cloud Services. Subject to your compliance with this Agreement (including, without limitation, all payment obligations), Configlive hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Cloud Services (“Cloud License”). If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Cloud Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remain fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. “Affiliate” means any entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
2.2.Restrictions. Unless otherwise expressly permitted in writing by Configlive, you will not and you have no right to:
(a) rent, lease, loan, export or sell access to the Cloud Services to any third party;
(b) interfere with, disrupt, alter, or modify the Cloud Services or any part thereof, or create an undue burden on the Cloud Services or the networks or services connected to the Cloud Services;
(c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Cloud Services except to the extent expressly permitted by applicable law (and then only upon advance notice to Configlive);
(d) utilize any framing techniques to enclose any Configlive trademark, logo, service mark, or other trade dress (“Configlive Marks”) or Materials (defined below) or use any meta tags or other “hidden text” utilizing the Configlive Marks or Materials
(e) introduce software or automated agents or scripts into the Cloud Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Cloud Services;
(f) perform or publish any benchmark tests or analyses relating to the Cloud Services without Configlive’s written consent;
(g) cover or obscure any page or part of the Cloud Services via HTML/CSS, scripting, or any other means;
(h) use Cloud Services to collect, store, process or transmit any Personal Information other than Credentials, and will not submit to the Cloud Services any data containing any Personal Information. Configlive will have no liability under this Agreement for Personal Information submitted by you, or any security incident or breach regarding such Personal Information, notwithstanding anything to the contrary herein.
2.3.Responsibilities for Credentials. You are responsible for maintaining the confidentiality of all usernames and passwords created by or assigned to you (“Credentials”), and are solely responsible for all activities that occur under such Credentials. You agree to notify Configlive promptly of any actual or suspected unauthorized use of any Credentials. Configlive reserves the right to terminate any Credentials that Configlive reasonably determines may have been accessed or used by an unauthorized third party, and will provide immediate notice of such to Customer.
2.4.Subscription Terms, Renewals and Cancellations. All Cloud Services that are provided to you as Paid Services (each a, “Paid Cloud Service”) will be provided to you on a subscription basis for the length of term that you specified during the initial sign-up process (“Subscription Term”). All of your subscriptions to Paid Cloud Services will automatically renew for periods equal to your initial Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Cloud Services’ account dashboard prior to your next scheduled billing date.
2.5.2.If required, You must obtain all necessary rights, releases and permissions to provide Your Information to Configlive, and Your Information and its transfer must not violate any applicable local, state, federal and international laws and regulations (“Laws”) (including without limitation those relating to export control or electronic communications). Other than our security obligations under Section 5 (Security), we assume no responsibility or liability for Your Information, and you will be solely responsible for the consequences of using, disclosing, storing, transferring or transmitting Your Information.
2.5.3.Configlive may modify certain components of Your Information on or transmitted to or from your website to enhance your website’s performance or security or the functionality of the Cloud Services. For example, depending on the Configlive Services you select, Configlive may: (i) add install agents on your servers or scripts to your pages to perform additional performance tracking; (ii) add rules to Customer Infra and make other changes to increase the performance, security or analytic capabilities of Customer Infra.
2.5.4.By transmitting Your Information to or through the Cloud Services, you represent and warrant that your Data, does not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
2.6.Free & Trial Services. We may offer free or trial versions of the Cloud Services (“Free Services”) from time to time. With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by Configlive in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.
2.7.Acceptable Use. By using the Cloud Services you are agreeing, among other things, that you will not use the Cloud Services to (a) falsely imply any sponsorship or association with Configlive; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s intellectual property rights or that are otherwise unlawful; or (c) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking.
3.Invoicing, Pricing, taxes etc.
3.1.Recurring Invoicing. In order to access those Services for which we require a subscription fee (“Paid Services”) you will be required to provide Configlive with your credit card information (“Payment Method”). By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly or annual basis, or as otherwise applicable for the subscription fees associated the Paid Services that you sign up for. Any Payment Method that you provide us must be valid, and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. Configlive will begin invoicing your Payment Method for the Paid Services on the day that you sign up for such Paid Services.
3.2.Price Changes. We reserve the right to change the subscription fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the invoicing period immediately following our notice.
3.3.No Refunds. SUBSCRIPTION FEES ARE NON-REFUNDABLE. YOU WILL BE ISSUED INVOICE IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. Following any cancellation, however, you will continue to have access to the Paid Services through the end of your current Subscription Term. We may, in our sole discretion, provide a refund, discount, or credit (“Credits”) to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.
3.4.Taxes. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except tax on our net income. Unless you provide us with evidence of an exemption, we will invoice you for such Taxes if we believe we have a legal obligation to do so and you agree to pay such Taxes.
4.Beta Services. From time to time, we may make early stage or non-production Cloud Services and Software (“Beta Services”) available to you at no charge. You may access these Beta Services in your sole discretion. Beta Services are intended for evaluation purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. Configlive may, but is not obligated to, provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of three months from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. Notwithstanding Section 12, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.
5.Security. We implement security procedures to help protect your Data from security threats. However, you understand that your use of the Service necessarily involves transmission of Your Information over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Information that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Information will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6.Trade Sanctions and Export Control. You may not use the Service for any reason if you or any party that owns or controls you, are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. You may not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited.
7.Termination of Use;Discontinuation and Modification of the Service. You will lose your license to use the Service if you violate any provision of this Agreement. Configlive’s policy is to investigate violations of this Agreement. Additionally, we may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time.
8.Ownership, Property Rights. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Configlive are the property of Configlive or our third-party licensors. Except as expressly authorized by Configlive you may not make use of the Materials. Configlive reserves all rights to the Materials not granted expressly in this Agreement.
9.1.By Configlive. Configlive will defend you against any third party claim brought against you, to the extent that such claim is based on an allegation that a Paid Service, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim“), and we will indemnify you against any damages and costs (including reasonable legal fees) finally awarded by a court of competent jurisdiction attributable to such a Claim or agreed to settlement by Configlive. If any portion of a Paid Service becomes, or in Configlive’s opinion is likely to become, the subject of an infringement claim, Configlive may, at Configlive’s option: (a) procure the right for you to continue using the Paid Service; (b) replace the Paid Service with non-infringing services which do not materially impair the functionality of the Paid Service; (c) modify the Paid Service so that it becomes non-infringing; or (d) terminate the Paid Service and refund any pre-paid subscription fees covering the remainder of the Subscription Term, and upon such termination, you will immediately cease all use of the Paid Service. Configlive will have no obligation under this Section 9 or otherwise with respect to any infringement claim based upon: (i) any use of a Paid Service not in accordance with this Agreement or the Documentation; any use of a Paid Service in combination with third party products or services not supplied by Configlive; or (ii) any modification of a Paid Service by any person other than Configlive or its authorized agents. THIS SUBSECTION SETS FORTH Configlive’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9.2.By You. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Configlive and its officers, directors, employees, consultants, Affiliates, subsidiaries and agents (collectively, the “Configlive Entities“) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with your access to, use of, or alleged use of the Service; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
10.Disclaimers; No Warranties. THE SERVICE ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE Configlive ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE Configlive ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE Configlive ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE Configlive ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
To the extent permitted by law, Configlive IS not responsible for any delays, delivery failures, or any other loss or damage resulting from (i) the transfer of data over PUBLIC communications networks and facilities, including the internet, or (ii) any delay or delivery failure on the part of any other service provider not contracted by us, and CUSTOMER acknowledgeS that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities. CUSTOMER acknowledgeS that Configlive cannot guarantee the absolute prevention of cyber-attacks such as hacking, spyware, and viruses. Accordingly, Configlive SHALL NOT BE liable for any unauthorized disclosure, loss or destruction of CUSTOMER Data arising from such risks AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO NEGLIGANCE OR FAILURE ON Configlive’S PART.
11.Limitation of Liability. IN NO EVENT WILL THE Configlive ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE Configlive ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE Configlive ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US$1 (ONE UNITED STATES DOLLAR).
12.Marketing / Publicity. You agree to allow us to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s home page, to display your logo on the Configlive web site, and to otherwise refer to you in print or electronic form for marketing or reference purposes. If you do not wish for Configlive to use your name or logo in any of the preceding ways, please contact support@Configlive.
13.Changes. Configlive reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will be effective immediately. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.
14.1.Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. You may not assign this Agreement without the advance written consent of Configlive, except that You may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Your assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void. We may assign this Agreement at any time without notice.
14.2.Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
14.3.Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising out of this Agreement shall be resolved in a state or federal court located in or encompassing Delaware, USA, and the parties hereby consent to the jurisdiction of such courts.
14.4.Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
14.6.Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by You will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
14.7.Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
14.8.Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party (each, a “Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
14.9.Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
14.10.Export Control.In its use of the Services, You agree to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) You represent and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) You will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) You will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
14.11.Government End-Users. Elements of the Services are commercial computer software. If the user of the Cloud Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Cloud Services are developed fully at private expense. All other use is prohibited.