THESE TERMS OF SERVICE (the “Agreement”) GOVERN CUSTOMER’S RECEIPT, ACCESS TO, AND USE OF THE SERVICE (AS DEFINED BELOW) PROVIDED BY DETERMINATE SYSTEMS, INC., A DELAWARE CORPORATION LOCATED AT 89 LEROI DRIVE, PITTSFIELD, MA 01201 (“DetSys”). CUSTOMER ACCEPTS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS BY (A) PURCHASING ACCESS TO THE SERVICE THROUGH AN ONLINE ORDERING PROCESS THAT REFERENCES THIS AGREEMENT, OR (B) CLICKING A BOX INDICATING ACCEPTANCE.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“Customer”); SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR THE APPLICABLE ENTITY DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND CUSTOMER MAY NOT USE OR RECEIVE THE SERVICE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. THE PARTIES AGREE AS FOLLOWS:
The Service
Service Description
DetSys is the owner and provider of a cloud-based software that is designed to allow customers to (a) upload, store, and access such customer’s software and other code (including open source software) and (b) access downloadable software that is installed on a customer’s physical or virtual server(s) that facilitate the use of the cloud-based software (the “Software Tools”) (collectively the cloud-based software and Software Tools are the “Service”). Anything Customer (including Users as defined in Section 1.2) posts, uploads, shares, stores, or otherwise provides through the Service is considered a “User Submission.” Customer is solely responsible for all User Submissions its Users contribute to the Service. Further terms regarding User Submissions, including ownership, are in Section 10.2 below. Customer understands and agrees that in order to use the Service, Customer is required to download and run a copy of the software known as “Nix” either from DetSys (DetSys’ own version of Nix known as Determinate Nix) or from the NixOS Foundation itself (standard Nix) (“Nix”). The Service may also include templates, help documents, and other documents or information that can assist Customer using the Service (“DetSys Content”).
Customer’s Subscription
Subject to the terms of this Agreement, Customer may purchase a subscription to, and has the right to access and use, the Service as specified in one or more ordering screens agreed to by the parties through DetSys’s website that reference this Agreement and describe the business terms related to Customer’s subscription (“Order(s)”). All subscriptions will be for the period described on the applicable Order (“Subscription Period”). Use of and access to the Service is permitted only by individuals authorized by Customer for Customer’s own business purposes and not for the benefit of any third party (“Users”). DetSys also grants Customer (including Users) a limited, non-sublicensable, non-transferable right and license to (a) download and run the Software Tools in Customer’s computing environment and (b) access, download, and use, the technical documentation regarding the Service that DetSys publishes to all its customers (“Documentation”), in each case solely for Customer’s own benefit.
Support
DetSys will provide Customer with basic technical support for the Service (“Support Services”). DetSys may require assistance from Customer in order to provide the Support Services; Customer will provide all such assistance reasonably requested by DetSys. Failure to provide such assistance may result in DetSys’s inability to properly provide the Support Services, for which DetSys will not be responsible. Support Services do not include support of Nix, though DetSys may agree to provide other support for an additional fee; such support will be considered Support Services hereunder as may be further described in an Order. Support Services do not include design or other development or consulting services.
DetSys’s Ownership
DetSys owns the Service (including the Software Tools, Underlying Software, and DetSys Content), Documentation, and anything else provided by DetSys to Customer (collectively “FlakeHub”). DetSys retains all right, title, and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to FlakeHub, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly granted to Customer in this Agreement are expressly reserved by DetSys. The Service, DetSys Content, and the Documentation are licensed and not sold.
Permissions
The Service contains customizable settings allowing each User to give permission to other Users to perform various tasks within the Service (“Permissions”). It is solely Customer’s responsibility to set and manage all Permissions, including which Users can set such Permissions. Accordingly, DetSys will have no responsibility for managing Permissions and no liability for the Permissions set by Customer and its Users. Customer may, at its option, provide access to the Service and Documentation to its Affiliates (defined below), in which case all rights granted, and obligations incurred, under this Agreement will also inure to the benefit of such Affiliates. Customer (a) represents and warrants that it has the power to negotiate this Agreement on behalf of its Affiliates and (b) agrees that it is fully responsible for any breach of this Agreement by its Affiliates (including its Affiliates’ Users). Customer will also be responsible for all payment obligations under this Agreement regardless of whether the use of the Service is by Customer or its Affiliates. Any claim by an Affiliate against DetSys will be brought by Customer and not the Affiliate. For the purposes of this Agreement “Affiliate” means an entity directly or indirectly controlling, controlled by or under common control with that party (where “control” means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
Restrictions
Customer’s Responsibilities
Customer is responsible for all activity on its Users’ accounts unless such activity is caused by a third party bad actor able to access Customer’s account by exploiting vulnerabilities in the Service itself. Customer will ensure that its Users are aware of and bound by obligations and/or restrictions stated in this Agreement and Customer will be responsible for breach of any such obligation and/or restriction by a User.
Use Restrictions
Customer agrees that it will not, and will not allow Users or third parties to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Service, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or DetSys branding contained in or on the Service, (e) use the Service in any way that violates any applicable federal, state, local or international law or regulation, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, including, without limitation, by introducing viruses and other harmful code or by using flood pings, denial-of-service attacks, or similar methods or technology, (g) use or access the Service to build or support and/or assist a third party in building or supporting products or services competitive to the Service or (h) unless otherwise approved by DetSys in writing, attempt to probe, scan, or test the vulnerability of the Service or any DetSys system or networks. If Customer (including Users) is using the Service in a manner that, in DetSys’s reasonable judgment, causes or is likely to cause significant harm to DetSys or the Service or otherwise threatens the security, integrity or availability of the Service, then DetSys may suspend Customer’s access to the Service. DetSys will use commercially reasonable efforts under the circumstances of such suspension to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) limit the suspension to only accounts involved in the activities in question; and (z) remove the suspension as quickly as practicable after the circumstances leading to the suspension have been resolved.
Third-Party Applications & Software
The Service may work together with third party products, services or applications that are not owned or controlled by DetSys, (e.g., Discord, which is used for support purposes) (“Third-Party Applications”) and Customer, at its sole option, may choose to use such Third-Party Applications. DetSys does not endorse such Third-Party Applications. Customer acknowledges and agrees that this Agreement does not apply to Customer’s use of such Third-Party Applications and Customer be required by the providers of such Third-Party Applications to enter into separate agreements for Customer’s use. Customer also understands and agrees that Nix, while made available by DetSys and required for use of the Service, is also owned, or controlled by, a third-party, or is open-source software, and is therefore subject to a separate license agreement. DetSys expressly disclaims all representations and warranties relating to any Third-Party Applications and Nix. Customer will look solely to the providers of the Third-Party Applications and Nix for any warranty related issues or other claims. Customer’s use of Third-Party Applications and Nix is at Customer’s own risk. DetSys will have no liability or other obligation of any kind arising out of or related to any Third-Party Applications or Nix, including arising from Customer’s use or inability to use Third-Party Applications or Nix.
Payment Obligations
Fees
Customer will pay for access to and use of the Service as set forth on the applicable Order (“Fees”). All Fees will be paid in the currency stated in the applicable Order or, if no currency is specified, U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. DetSys may modify its Fees or introduce new fees in its sole discretion. Customer always has the right to choose not to renew its Subscription Period if it does not agree with any new or revised Fees.
Payment
DetSys, either directly or through its third-party payment processor (“Payment Processor”) will charge Customer for the Fees via credit card or ACH payment, pursuant to the credit card or ACH payment information provided by Customer to DetSys. DetSys will have the right to charge Customer’s credit card or ACH payment method for any services provided to Customer by DetSys under the Order, including recurring Fees and payment processing charges. It is Customer’s sole responsibility to provide DetSys with current and up to date credit card or ACH information; failure to provide such information may result in suspension of Customer’s access to the Services. DetSys will also have the right to set-off any Fees due from Customer to DetSys. If Customer pays the Fees through a Payment Processor such payment processing will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to this Agreement. DetSys is not responsible for any error by, or other acts or omissions of, the Payment Processor. DetSys reserves the right to correct any errors or mistakes that the Payment Processor makes even if DetSys has already requested or received payment. If authorized by Customer through acceptance of an Order, recurring charges (e.g. monthly billing) will be charged to Customer’s chosen payment method without further authorization from Customer, until Customer terminates this Agreement in accordance with its terms or changes its payment method in Customer’s account in the Service.
Taxes
Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If DetSys has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, DetSys will invoice Customer and Customer will pay that amount unless Customer provides DetSys with a valid tax exemption certificate authorized by the appropriate taxing authority in advance. If Customer is legally obligated to deduct or withhold any Taxes from any fees payable to DetSys under this Agreement, then the amount payable shall be increased as necessary so that after making all required deductions and withholding, DetSys receives an amount equal to the amount it would have received had no such deductions or withholdings been made. For clarity, DetSys is solely responsible for taxes assessable against it based on its income, property, and employees.
Failure to Pay
If Customer fails to pay any Fees when due, DetSys may suspend Customer’s access to the Service pending payment of such overdue amounts. Customer also authorizes DetSys to re-try charging Customer’s payment instrument up to four (4) times if an initial attempt at such charge has not been successful. If Customer believes that DetSys has billed Customer incorrectly, Customer must contact DetSys no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Once DetSys receives notice of a disputed invoice, DetSys will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If DetSys reasonably determines that the amounts billed are, in fact, due, Customer will pay such amounts (if it has not done so already) within ten (10) days of DetSys notifying Customer in writing of such decision.
Term and Termination
Agreement Term and Renewals
Subscriptions to access and use the Service commence on the start date stated on the applicable Order (“Subscription Start Date”) and continue for the duration of the Subscription Period. Customer may choose not to renew its Subscription Period by following the cancellation process on the Service’s portal or another location provided by DetSys and communicated by DetSys to Customer in writing. This Agreement will become effective on the date stated below and remain effective for the duration of the Subscription Period stated on the Order along with any renewals of the Subscription Period and any period that Customer is using the Service even if such use is not under a paid Order (“Term”). If the parties terminate this Agreement, it will automatically terminate all Orders. If Customer cancels or does not renew its paid subscription to the Service, Customer’s subscription will be accessible but will automatically be downgraded to a version of the Service with diminished features and functionality that DetSys offers to unpaid subscribers (“Free Version”). If Customer or DetSys terminates this Agreement or Customer deletes its workspace within the Service, Customer will not have access to the Free Version.
Termination
Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice. DetSys may terminate Customer’s access to the Free Version at any time upon notice to Customer.
Effect of Termination
If Customer terminates this Agreement because of DetSys’s uncured breach, DetSys will refund any unused, prepaid Fees for the remainder of the then-current Subscription Period. If DetSys terminates this Agreement because of Customer’s uncured breach, Customer will pay any unpaid Fees covering the remainder of the then-current Subscription Period after the effective date of termination, if any. In no event will any termination relieve Customer of the obligation to pay any Fees payable to DetSys for the period prior to the effective date of termination. Upon any termination of this Agreement, all rights and licenses granted by DetSys hereunder will immediately terminate; Customer will no longer have the right to access or use the Service and Customer will permanently delete or destroy all Software Tools and Documentation in its possession. Within thirty (30) days of (a) termination of this Agreement for cause, (b) Customer’s written request following termination, or (c) Customer deletion of its workspace within the Service, DetSys will delete Customer’s User Information, including passwords and all related information, files, and User Submissions, unless Customer requests an earlier deletion in writing. If Customer is using the Free Version, DetSys will retain publicly available User Submissions to facilitate such use; all User Submissions for private use submitted prior to termination of Customer’s subscription may be deleted by DetSys within sixty (60) days of Customer’s subscription reverting to the Free Version.
Survival
Section 1.4 (DetSys’ Ownership), 3 (Third-Party Applications), 4 (Payment Obligations), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 7 (Indemnity), 8 (Limitation of Liability) 9 (Confidentiality), 10 (Data) , and 11 (General Terms) shall survive any termination or expiration of this Agreement.
Warranties and Disclaimers
Warranties
Each party represents and warrants to the other party that: (a) It is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; and (b) It has the full right, power and authority to enter into and perform its obligations under this Agreement. Customer represents and warrants that it has all necessary rights in and to the User Submissions to provide the licenses granted hereunder and all User Submissions submitted by Users follow all applicable laws, rules, and regulations.
Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND DETSYS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT DETSYS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Indemnity
DetSys’s Indemnification
DetSys will defend Customer and its Users, officers, directors, and employees against any third-party claim or action brought against Customer to the extent based on the allegation that the Underlying Software infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), in each case DetSys agrees to pay any settlements with respect to the foregoing indemnification obligations that DetSys agrees to in a writing signed by DetSys’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Underlying Software or portions or components of the Underlying Software (a) that are not provided by DetSys, (b) that are not combined with other products, processes or materials that are not reasonably contemplated by DetSys or the Documentation, or (c) where Customer’s use of the Underlying Software is not in accordance with this Agreement or the Documentation.
Customer’s Indemnification
Customer will defend DetSys and its officers, directors, and employees against any third-party claim or action brought against DetSys based on (a) on the allegation that the User Submissions infringe such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right),or (b) Customer’s gross negligence or willful misconduct, and in each case Customer agrees to pay any settlements with respect to the foregoing indemnification obligations that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third-party claimant by a court of competent jurisdiction.
Procedures
Each party’s obligations under this Section 7 are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim (provided that the indemnified party’s failure to provide reasonable written notice will only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such claim), (b) granting the indemnifying party the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense. Notwithstanding anything else to the contrary in this Agreement, any obligation of indemnifying party to defend, indemnify and hold the other party harmless hereunder is limited to indemnifying party’s payment for the cost of defense of the third-party claim incurred by the indemnifying party and the payment of (i) any settlements agreed to by the indemnifying party in a writing signed by an officer of the indemnifying party, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction. The indemnified party may participate in a claim with its own counsel at its own expense. No settlement that requires an indemnified party to admit fault, accept liability, or pay any amounts shall be made without the indemnified party’s prior written consent, not to be unreasonably withheld or delayed.
Options
If Customer’s use of the Underlying Software has become, or in DetSys’s opinion is likely to become, the subject of any claim of infringement, DetSys may at its option and expense, (a) procure for Customer the right to continue using and receiving the Underlying Software as set forth hereunder, (b) modify the Underlying Software to make it non-infringing (but containing substantially equivalent functionality), (c) substitute an equivalent for the Underlying Software or (d) if DetSys, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement.
Sole Remedy
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 7 STATES EACH PARTY’S ENTIRE RESPONSIBILITY AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DETSYS WILL NOT BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Confidentiality
Definition
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). DetSys’s Confidential Information includes non-public information regarding features, functionality, and performance of the Service. Customer’s Confidential Information includes the User Information (defined in Section 10.1) and User Submissions. This Agreement and the information in all Orders will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party (including User Submissions Customer makes publicly available); (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any confidentiality obligation; (c) is received from a third party without breach of any confidentiality obligation; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
Protection and Use of Confidential Information
The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, subcontractors, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, make all commercially reasonable efforts not to disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations or enforce its rights under this Agreement. Nothing above will prevent either party from sharing the terms of this Agreement or the name of the other party with prospective investors or acquirors; provided, however, that the foregoing persons or entities are bound to standard confidentiality obligations.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure.
Feedback
Customer may from time to time provide suggestions, comments, or other feedback with respect to the Service (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to DetSys specifically regarding the Service and will not include User Information or User Submissions. Customer hereby grant to DetSys and DetSys’s assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license, if any, to use, disclose, reproduce, modify, create derivative works from, distribute, display, and otherwise distribute and exploit any Feedback as DetSys sees fit, without obligation or restriction, except that DetSys will not identify Customer as the provider of such Feedback.
Data
User Information
Customer and its Users are required to provide information such as IP address, username, password, and personally identifiable information including, without limitation, name, phone number, or email address (“User Information”) upon logging into the Service in order to access the Service. Customer grants DetSys and its subcontractors the right to store, process and retrieve the User Information in connection with Customer’s use of the Service. Customer represents and warrants that it has obtained all necessary rights to transfer User Information to DetSys and to process the User Information as contemplated by this Agreement. Customer is responsible for all User Information. Accordingly, Customer is responsible for all resulting liability if usernames, passwords, tokens, or keys in Customer’s possession are used by any party not authorized to do so. Customer (on behalf of its Users) grants DetSys the right to access, use, process, copy, distribute (to Users), perform (for Users), export (to Users) and display (for Users) User Information, only as reasonably necessary (a) to provide the Service to Customer (including the transfer of User Information to DetSys); (b) to prevent or address service, security, support, or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.
User Submissions
Customer grants DetSys and its subcontractors a non-exclusive, perpetual, worldwide, royalty-free, paid-up, transferable right and license to use, process, distribute, transform, prepare derivative works of, and display User Submissions for the sole purpose of providing the Service to Customer (through the Service and any other means that DetSys may choose). Customer understands and agrees that by providing User Submissions through the Service its name and logo may be publicly listed on the Service; Customer grants all appropriate rights to allow DetSys to display Customer’s name and logo for such purpose and no consent from Customer is required for such use. As between Customer and DetSys, and except for the limited rights and licenses granted in this Agreement and for User Submissions that are considered open source, Customer will own all right, title, and interest in and to the User Submissions and there are no implied licenses under this Agreement. Customer understands and agrees that if it uses the Service to publish User Submissions publicly, those submissions cannot be deleted or made private without DetSys’ written consent, which will not be unreasonably withheld.
Service Data
As Customer (including its Users) interacts with the Service, the Service collects data pertaining to the performance of the Service and measures of the operation of the Service (“Service Data”). Notwithstanding anything else to the contrary herein, the parties agree that DetSys is free to use the Service Data in any manner, provided that Service Data is not revealed to any third party. DetSys owns all right, title, and interest in and to such Service Data. For clarity, this section does not give DetSys the right to identify Customer (including its Users) as the source of any Service Data.
Data Protection
DetSys has established and implemented reasonable information security practices regarding the protection of User Submissions and User Information (collectively “Customer Data”), including administrative, technical, and physical security processes. Notwithstanding the foregoing, Customer is responsible for maintaining appropriate security, protection and backup of its hardware, software, systems, information, and Customer Data. DetSys will, during the Term, process all Customer Data in accordance with DetSys’s security policy the current version of which is located at https://flakehub.com/policy/security.
General Terms
Publicity
Provided that Customer gives its prior written consent, DetSys may identify Customer and use and display Customer’s name, logo, trademarks, or service marks on DetSys’s website and in DetSys’s marketing materials.
Force Majeure
DetSys will not be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of DetSys that make it impossible or commercially impracticable for DetSys to perform its obligations hereunder, which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of DetSys), shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Changes
Customer acknowledges that the Service is an on-line, subscription-based product, and that DetSys may make changes to the Service to provide improved customer experience, however DetSys will not materially decrease the core functionality of the Service. DetSys may also unilaterally modify the terms of this Agreement by notifying Customer in writing (notices through the Service or via email will suffice) prior to such changes taking effect and posting such changes at https://flakehub.com/policy/terms.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
Email Communications
Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, although DetSys may instead choose to provide notice to Customer through the Service, and (b) notices to DetSys must be sent to support@flakehub.com. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Service.
Amendment and Waivers
No modification or amendment to this Agreement will be effective unless made in writing and signed or accepted by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Severability
This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
Assignment
Neither party will assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, DetSys may assign this Agreement in its entirety (including all Orders), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all DetSys’s assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Governing Law and Venue
This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in New Castle County, Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Entire Agreement
This Agreement, including all referenced pages and Orders, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Customer agrees that any purchase order, website, purchasing portal, or other ordering instrument issued by Customer (excluding Orders) will be for Customer’s administrative purposes only and, notwithstanding any language to the contrary therein, any terms or conditions contained therein will not be incorporated into or form any part of this Agreement, and all such terms or conditions will be null, void, and of no force or effect even if signed or otherwise accepted or acknowledged by DetSys.
Beta Features, Trials, and the Free Version
Beta Features
DetSys may occasionally make new services or new features of its existing services available to Customer for evaluation and testing (each, a “Beta Product(s)”). Customer may choose to try such Beta Product(s) or not in its sole discretion and at Customer’s sole risk. If Customer uses a Beta Product Customer understands and agrees that, notwithstanding anything herein to the contrary, Beta Products are made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranties, indemnities, or support commitments of any kind and DetSys has no liability for damages of any kind arising from Customer’s use of Beta Products unless such exclusion of liability is not enforceable under applicable law, in which case DetSys’s entire liability for Customer’s use of Beta Products will not exceed $100.
Free Trials and the Free Version
Notwithstanding anything herein to the contrary herein, if Customer is using and accessing the Service for a free trial or evaluation, or is accessing the Free Version of the Service, such access and use is made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranties, indemnities, or support commitments of any kind and DetSys has no liability for damages of any kind arising from such use of the Service unless such exclusion of liability is not enforceable under applicable law, in which case DetSys’s entire liability for Customer’s use of the Service for a free trial or evaluation will not exceed $100.