Terms and Conditions
Subject to the terms and conditions of this Agreement, ErrorStream will use reasonable efforts to provide Customer with access to the Services described. The Services are subject to modification (including, without limitation, to implement new features or to meet emerging requirements) from time to time at ErrorStream’s discretion.
Through the Services, ErrorStream may obtain access to a set of data provided by Customer in the course of the Customer’s use of the Service (“Customer Data”). Through the Services, Customer may obtain access to a set of data or a report provided by ErrorStream in the course of the Customer’s use of the Service (“Report”). Reports are considered part of the Services for purposes of this Agreement.
RESTRICTIONS AND RESPONSIBILITIES
Customer represents and warrants that: (i) it will not use the Services or any product thereof in any manner that violates any law or governmental regulation; (ii) it will prevent any unauthorized use of or access to the Services and promptly notify ErrorStream of any such use or access; and (iii) Customer Data (including Customer’s provision thereof to ErrorStream and ErrorStream’s use thereof) will not violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (except to the extent applicable law prohibits such a restriction); modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own internal business purposes (including providing any Report to a third party); or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
Customer will cooperate with ErrorStream in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as ErrorStream may reasonably request. Customer’s use of the Services may be limited to a certain number of users, as described in the Billing Form; Customer will establish a username and password (or any other means required by ErrorStream) for verifying that only designated employees of Customer have access to the Services as users under Customer’s account. Customer will be responsible for maintaining the security of all Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer accounts with or without Customer’s knowledge or consent. Customer may create separate usernames to access the Services only upon ErrorStream’s written consent.
Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to ErrorStream.
PRIVACY AND CONFIDENTIALITY
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information (except as allowed in subsection (ii)), (ii) to give access to such Proprietary Information solely to its employees and contractors with a need to have access thereto for purposes of this Agreement, (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information, and (iv) not to use such Proprietary Information except to exercise its rights and fulfill its obligations under this Agreement. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Customer Data shall be considered Confidential Information of Customer.
Customer acknowledges that ErrorStream does not wish to receive any Proprietary Information from Customer that is not necessary for ErrorStream to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, ErrorStream may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
For clarity, the Services (including any Reports) are also ErrorStream’s Proprietary Information, as are any Feedback (defined below) and the terms of this Agreement (which, in the case of Feedback and these terms (including any pricing terms), shall be deemed disclosed by ErrorStream, and to which the exceptions set forth in Section 3.2(b) and (d) do not apply).
Notwithstanding anything to the contrary, ErrorStream may de-identify any information collected from Customer in the course of this Agreement, and use and freely exploit such information, provided that ErrorStream aggregates and/or de-identifies such information prior to disclosure to a third party such that the information does not individually identify Customer or Customer’s clients (except that ErrorStream may disclose individually identifiable information to its third party contractors who are subject to confidentiality obligations).
INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, ErrorStream alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer relating to the Services (“Feedback”), and Customer hereby makes all assignments necessary to accomplish the foregoing with respect to Feedback.
Customer hereby grants ErrorStream a non-exclusive, worldwide, royalty-free, perpetual and irrevocable license to use all Customer Data as permitted by this Agreement.
Pursuant to the terms and conditions of this Agreement, Customer is hereby granted (1) a limited, non-exclusive, nontransferable, revocable right to use the Services (excluding Reports) for its internal purposes only solely for the term of the Agreement, and (2) a limited, non-exclusive, nontransferable, perpetual right to use Reports for its internal purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services (including any Reports), or any intellectual property rights. All rights not expressly granted herein are reserved by ErrorStream.
FEES AND PAYMENT; TAXES
The Services are provided on a subscription basis. The term of Customer’s subscription is set forth in the Billing Form (the “Billing Period”). Subscription fees for each Subscription Term (the “Subscription Fees”) must be paid in full on or before the first day of the applicable Subscription Term. Customer shall pay all such Subscription Fees via the payment method set forth in the applicable Billing Form.
Customer is responsible for keeping all payment information accurate and up-to-date; failure to do so may prevent ErrorStream from collecting amounts due hereunder. ErrorStream may suspend access to the Services or any portion thereof if Customer is late in making any payment when due. Late payments will bear interest at the rate of 1.5% per month (or the highest rate allowed by applicable law, whichever is lower) until paid. All amounts paid hereunder are non-refundable and non-creditable.
Customer is responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associates with its activity in connection with the Services.
TERM AND TERMINATION; SUSPENSION
The term of this Agreement shall be as described in the applicable Billing Form, unless earlier terminated as described in this Section 6 (the “Term”). The Billing Form may provide that the initial term of this Agreement (“Initial Term”) will automatically renew for an additional term that is equal in length to the Initial Term (and continue to automatically renew in the same manner thereafter) (each, a “Renewal Term”); either party may prevent such auto-renewal by giving the other party thirty (30) days written notice of its intent not to renew prior to the end of the then-current Initial or Renewal Term (as applicable).
ErrorStream may temporarily suspend the provision of the Services to Customer without liability under the following circumstances: (i) for scheduled or emergency maintenance; (ii) if ErrorStream believes that the Services are being used in violation of this Agreement or applicable law; (iii) if ErrorStream believes that the use of the Services by Customer may pose a security risk to ErrorStream or a ErrorStream customer; (iv) if ordered by a law enforcement or government agency, or otherwise in order to comply with applicable law; or (v) if Customer fails to fulfill its payment obligations with respect to the Services.
Either party may terminate this Agreement for a party’s material breach of this Agreement, upon fifteen days’ prior written notice to the non-breaching party (provided such breach remains uncured at the end of such fifteen (15) days period). ErrorStream may terminate this Agreement for ErrorStream’s convenience upon thirty days’ prior written notice to Customer. Upon expiration or termination of this Agreement, Customer’s right to use the Services will immediately cease, provided that to the extent any Report has been provided to Customer hereunder Customer may continue to use such Report for its own internal business purposes, and for no other reason. The following Sections shall survive any termination of this Agreement: 3, 4.1, 4.2, 4.3 (except for the first sentence thereof), 5 (as it relates to amounts due hereunder incurred prior to termination), 6, 8-10, and 12.
ErrorStream offers email-based support. Customer may contact the support desk at email@example.com. ErrorStream does not make any promises regarding how quickly it will respond to a request for support, or that it will be able to fix any problems Customer may be having. Any suggestions by ErrorStream regarding use of the Services shall not be construed as a warranty.
THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. FUNCTIONAL SOFTWARE HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL FUNCTIONAL SOFTWARE (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, (II) THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, (III) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (A) ONE-THOUSAND US DOLLARS ($1000) OR (B) THE AMOUNTS PAID AND/OR PAYABLE BY CUSTOMER TO FUNCTIONAL SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; IN EACH CASE WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND WHETHER OR NOT FUNCTIONAL SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer shall defend, indemnify, and hold harmless ErrorStream, its affiliates, and each of its, and its affiliates, employees, contractors, directors, supplier and representatives, from and against any liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, arising from Customer’s actions in connection with any breach of this Agreement and/or unauthorized use of the Services or Software, including any claim that such actions violate any applicable law or third party right.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ErrorStream’s prior written consent; ErrorStream may transfer and assign any of its rights and obligations under this Agreement freely and without consent. Both parties agree that 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ErrorStream in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. ErrorStream will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco, California will have sole and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Customer agrees to participate in press announcements, case studies, trade shows, or other forums reasonably requested by ErrorStream. ErrorStream is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion (including without limitation in its publicity and marketing materials).