End customer use terms
BY ACCEPTING THE TERMS OF THE APPLICABLE ORDER, AND USING THE PRODUCT(S), CUSTOMER ACCEPTS THE TERMS AND CONDITIONS HEREIN (“AGREEMENT”), WHICH ARE APPLICABLE TO THE use OF THE PRODUCT(S).
1. TERM
1.1 Term. Each Product subscription commences on the Effective Date of each Order, and continues for the period specified in the Order, or until cancelled, or this Agreement is otherwise terminated, in accordance with the Agreement.
2. FEES
2.1 Fees. Customer’s use of the Product(s) is subject to this Agreement, including the applicable Usage Metrics, and the Usage Metric volumes (“Usage Volumes”). The Usage Metrics are set out in the Product Supplement. The Usage Volumes are set out in the Oder. Customer shall pay all agreed fees, including overage fees, if any. All Orders are non-cancellable, except as expressly agreed otherwise, and all fees are non-refundable. Although some subscription fees may be expressed in monthly terms in an Order, this is for Customer’s convenience only; but fees are payable annually in advance.
2.2 Overage. Customer will monitor its own use of the Product(s) and report any use in excess of the agreed Usage Volume. Vendor may monitor Customer’s use to verify compliance with Usage Volume and this Agreement. Overage fees accrue from the date the overage first occurs. Overage fees will be calculated against the applicable Usage Volumes and will be two times (2x) Usage Volume unit price. Overage fees will be invoiced on a monthly basis, in arrears.
3. PERMISSIONS & RESTRICTIONS
3.1 Permissions. Customer shall only use the Product(s) for its and its Affiliates’ internal business operations (which may include the development, support, and launching of public-facing websites). Customer may permit Authorized users to use the Product(s).
3.2 Restrictions. Customer shall not: (i) use the Product(s) other than by an Authorized user; (ii) use the Product(s) as a service bureau, timeshare or similar service. (iii) reverse engineer, decompile, disassemble or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the software, (iv) modify, translate, or create derivative works based on the software or documentation, (v) copy (except for archival or Vendor-authorized purposes) software or documentation, (vi) resell, distribute, lease, pledge, assign, or otherwise transfer or encumber rights to the Product(s); (vii) use, or otherwise utilize, the Product(s), or any documentation, to build, and/or assist any third party in building or supporting, software products that compete with Vendor; (viii) remove any proprietary notices or labels from the Product(s), including in/on any software or documentation; (ix) bypass or breach any security device or protection used in the Product(s); (x) input, upload, transmit, or otherwise provide to, or through, the Product(s), any information or materials that are unlawful or injurious, or contain, transmit, or activate virus, worm, malware, or other malicious computer code; (xi) damage, destroy, disrupt, disable, impair or impede the Product(s); (xii) use the Product(s) or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; or (xiii) otherwise use the Product(s) or documentation beyond the scope of the Limited Rights.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
4.1 Vendor Ownership. As between Vendor and Customer, Vendor shall have sole and exclusive ownership of all right, title, and interest in and to the Product(s), including all Vendor software and documentation, all copies, improvements, and derivative works, including all copyright, trademark, patent, trade secret, know-how, and all other associated intellectual property rights. Third party software is owned by the third party from whom Vendor has acquired the right to utilize in the Product(s), or offer to Customer for Customer’s use. Other than the limited rights, all other rights in the Product(s), including the software and documentation, are expressly reserved to Vendor.
4.2 Customer Ownership. As between Vendor and Customer, Customer represents that it owns (or has the lawful right to): (i) its Customer Data, and (ii) subject always to the rights of applicable open-source software licensors, custom coding solely developed by Customer (and/or its Authorized-users), without any contribution from Vendor, excluding any derivative work of Vendor’s intellectual property rights and confidential information. Customer hereby grants to Vendor a fully paid-up, royalty-free, worldwide, non-exclusive right and license to use the Customer Data as necessary to provide the Product(s) to Customer, and as otherwise permitted by the Agreement.
5. TERM, SUSPENSION, AND TERMINATION
5.1 Termination. A Party may terminate the Agreement: (i) for cause upon thirty days' prior written notice of the other Party's material breach of any provision of the Agreement (including in the case for Vendor, Customer's failure to pay any fees due hereunder within thirty days of the payment due date) unless the breaching Party has cured the breach during such thirty day period; or (ii) immediately if the other Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors. Upon termination, Customer must immediately cease using the applicable Product(s), including accessing any Customer Data unless Vendor has given its authority (in writing) to allow a limited-time read-only access right to that Customer Data.
6. ADDITIONAL APPLICABLE DOCUMENTATION
6.3 Support Policy
7. GLOSSARY
7.1 “Affiliate” means any entity that controls, is controlled by, or is under common control of either Party to the Agreement, and the term “control” means the power or authority to direct influence over the management and policies of an entity, whether through the holding of a majority share of the voting stock, by contract, or otherwise.
7.2 “Authorized-user” means any individual to whom Customer grants access authorization to use the Product(s) that is an employee, agent, contractor or representative of Customer, or Customer's Affiliates.
7.3 “Customer Data” means any data, information, or other material that Authorized-users submit, collect or otherwise provide in the course of using the Product(s), including information regarding Customer’s social networking interactions or other contacts activated through use of the Product(s), and Customer’s visitors and their data.
7.4 “Effective Date” means the date on which Customer completed the Order.
7.5 “Product(s)” means the cloud-based software services provided by Vendor and as otherwise detailed in the applicable Order.