THESE LAUNCHDARKLY TERMS OF SERVICE ("AGREEMENT") CONTAINS THE TERMS FOR USE OF THE LAUNCHDARKLY SERVICE AND IS BETWEEN CATAMORPHIC, CO. ("LAUNCHDARKLY"), A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT 405 14 TH STREET, OAKLAND, CA 94612 AND THE PARTY AGREEING TO THE TERMS OF THIS AGREEMENT ("CUSTOMER"). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING AN "ACCEPT" OR SIMILAR BUTTON, OR OTHERWISE DOWNLOADING OR USING THE LAUNCHDARKLY SERVICE, THE PERSON PERFORMING ANY OF THE FOREGOING REPRESENTS THAT IS AUTHORIZED TO DO SO ON BEHALF OF CUSTOMER AND CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CUSTOMER MAY NOT USE THE LAUNCHDARKLY SERVICE WITHOUT AGREEING TO THIS AGREEMENT FIRST. IF A WRITTEN AGREEMENT REGARDING CUSTOMER'S USE OF THE LAUNCHDARKLY SERVICE EXISTS BETWEEN AND HAS BEEN EXECUTED BY BOTH LAUNCHDARKLY AND CUSTOMER, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
"Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
"Confidential Information" has the meaning set forth in Section 8.
"Control" means ownership or control, directly or indirectly, of at least 50% of the voting interests of the subject entity.
"Customer Data" means all electronic data or information submitted by Customer or any of its Affiliates in the LaunchDarkly Service.
"Customer Equipment" means Customer's and its Affiliates' computer hardware, software and network infrastructure used to access the LaunchDarkly Service.
"Data Protection Laws and Regulations" means all EU/Swiss applicable legislations with respect to the processing of Personal Data, including but not limited to the EU Data Protection Directive (95/46/EC).
"Documentation" means the published specifications of the LaunchDarkly Service, as may be updated or amended from time to time as necessary due to updates and enhancements, as determined and provided by LaunchDarkly to Customer.
"Extension Term" means each renewal subscription period for which the subscription term applicable to an Order Form is extended pursuant to Section 10.
"Force Majeure Event" means a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party from performing its obligations, and (ii) is beyond the reasonable control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against.
"Initial Term" means the first subscription term period for the LaunchDarkly Service defined on an Order Form, or if no such term period is defined, twelve (12) months, commencing on the date Customer executes such Order Form.
"Order Form" means a paper-based or online ordering document for the LaunchDarkly Service accepted by LaunchDarkly and Customer.
"LaunchDarkly Service" means the LaunchDarkly online, cloud-based feature flag management tool as further described in the Documentation, including the LaunchDarkly SDK.
"SDK" means LaunchDarkly's software development kit for use with Customer's products in accordance with the Documentation.
"Subscription Fees" mean the fees paid by Customer for the right to access and use the LaunchDarkly Service and receive standard support during the Term.
"Taxes" means any direct or indirect local, state, federal or foreign value-added, sales, use or withholding taxes.
"Term" as it relates to an Order Form means the Initial Term and any Extension Term applicable to each Order Form, and as it relates to this Agreement, is as defined in Section 10.1 below.
"Users" means Customer's and its Affiliates and their respective employees, agents, contractors, service providers or consultants who are authorized by Customer to use the LaunchDarkly Service and who have been supplied user identifications and passwords by Customer or by LaunchDarkly at Customer's or its Affiliates' request.
2. TERMS OF LAUNCHDARKLY SERVICE.
LaunchDarkly shall make the LaunchDarkly Service available to Customer and its Affiliates in accordance with this Agreement, and each Order Form mutually entered into and, to the extent not in conflict with this Agreement or an Order Form or the Documentation. Subject to the terms of this Agreement, LaunchDarkly grants Customer and its Affiliates a world-wide, fully-paid, royalty-free, limited term, non-sublicensable, non-transferable (except as otherwise provided herein), and non-exclusive license to access, use, and download (for the SDK only) the LaunchDarkly Service solely for its internal business purposes. The license granted hereunder is limited to the maximum number of Users specified in each Order Form and is subject to any additional terms and conditions specified on an Order Form. Any third party component embedded, included or provided by LaunchDarkly for use with the LaunchDarkly Service may only be used in conjunction with the LaunchDarkly Service, and such use is subject to this Agreement.
3. CUSTOMER RESPONSIBILITIES RELATING TO USE OF THE LAUNCHDARKLY SERVICE.
3.1 Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the LaunchDarkly Service.
3.2 Customer agrees to use the LaunchDarkly Service in compliance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make the LaunchDarkly Service available to any third party other than as contemplated or allowed by this Agreement; or (b) use the LaunchDarkly Service to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
3.3 Customer agrees to not (a) modify, copy or create derivative works of the LaunchDarkly Service; (b) reverse engineer the LaunchDarkly Service; (c) access the LaunchDarkly Service for the purpose of building a competitive product or service; (d) do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, LaunchDarkly Master Subscription Agreement (Click-through) May 2017 passwords, and/or secure cookies; (e) use the LaunchDarkly Service, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without LaunchDarkly's prior written consent; or (f) provide access to the LaunchDarkly Service by a known direct competitor of LaunchDarkly.
3.4 In addition, Customer acknowledges that the SDK is subject to the Apache 2.0 license (or successor version as indicated by Launch Darkly).
3.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3 LAUNCHDARKLY SHALL INFORM CUSTOMER THEREOF IN WRITING AND RESERVES THE RIGHT TO SUSPEND THE LAUNCHDARKLY SERVICE IF THE FAILURE IS NOT REMEDIED WITHIN FIVE (5) BUSINESS DAYS. LAUNCHDARKLY ALSO RESERVES THE RIGHT TO THROTTLE OR SUSPEND THE SERVICE IF LAUNCHDARKLY REASONABLY DETERMINES THAT CUSTOMER IS USING THE SERVICE IN EXCESS OF THE VOLUMES INTENDED BY LAUNCHDARKLY OR SUCH USE OVERLOADS THE SERVICES AS A WHOLE.
4.1 As between the parties, LaunchDarkly shall retain all ownership rights in the LaunchDarkly Service, the technology, software, hardware, products, processes, algorithms, user interfaces and know-how related to the LaunchDarkly Service and all work developed or created by LaunchDarkly during the course of providing support or the LaunchDarkly Service to Customer ("Work Product") in each to the extent not constituting Customer Information (as defined below). Customer shall have or retain all ownership rights in the Customer Data and all data, text, files, data, output, programs, files, information, or other information material that Customer or its Affiliates provides, develops, generates, creates, makes available or uses in conjunction with the LaunchDarkly Service (collectively, "Customer Information'). As applicable, LaunchDarkly hereby assigns and will assign all Customer Information to Customer. No license, right or interest in any LaunchDarkly or Customer trademark, copyright, trade name or service mark is granted hereunder.
4.2 LaunchDarkly shall own any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the LaunchDarkly Service.
5.1 Unless otherwise specified on an Order Form, the Fees (if any) shall be as stated in each Order and shall be payable in advance. In the event Customer issues purchase orders in its normal course of business, Customer shall provide LaunchDarkly with a purchase order within five (5) days of the Effective Date, or if Customer does not provide LaunchDarkly with such purchase order, Customer authorizes LaunchDarkly to accept this Agreement in lieu of a purchase order. In the event Customer is paying by credit card as indicated in an Order Form, Customer acknowledges that LaunchDarkly uses a third-party for the processing of such payments and that LaunchDarkly's credit card processor will have access to certain information provided by Customer as a result.
5.2 For payments made by credit card, Customer's credit card will be charged at the time the Order Form is placed and thereafter, at the frequency listed in the Order Form, which will continue until this Agreement is terminated. For all other payment methods, fees shall be due and payable within thirty (30) days of receipt of invoice. Any payment not received from Customer by the due date may result in suspension of Customer's ability to access the LaunchDarkly Service until payment is made, provided that LaunchDarkly notifies Customer in writing of the delinquency and such delinquency is not corrected within ten (10) business days.
5.3 Unless otherwise provided, LaunchDarkly's fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on LaunchDarkly's net income, employees, or property. If LaunchDarkly has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
5.4 The license granted hereunder is limited to the maximum number of Users licensed (where applicable) and any additional terms and conditions specified on an Order Form. In the event Customer exceeds such usage, LaunchDarkly may charge Customer for such excess usage.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement. Customer warrants that it has the rights to provide and use any and all Customer Data in accordance with the terms of the Agreement and the foregoing and its performance hereunder doesn't violate any laws.
6.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LAUNCHDARKLY DOES NOT WARRANT THE OPERATION OF THE LAUNCHDARKLY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. INDEMNIFICATION BY CUSTOMER.
Customer shall defend, indemnify and hold LaunchDarkly and its Affiliates (collectively, "LaunchDarkly Group") harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against LaunchDarkly any member of LaunchDarkly Group, by a third party alleging that the Customer Data created and stored by Customer in the LaunchDarkly Service or otherwise provided to LaunchDarkly in connection with the Agreement (i) violates any applicable law or regulation; or (ii) infringes any U.S. patent, copyright or other intellectual property right of a third party. LaunchDarkly agrees to (a) promptly give written notice of the Claim to Customer (provided that the obligations under this Section 7 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure); (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases LaunchDarkly of all liability and obligation); and (c) provide to Customer, at Customer's cost, all reasonable assistance.
8.1 As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably LaunchDarkly Master Subscription Agreement (Click-through) May 2017 should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party's Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party.
8.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). LaunchDarkly represents and warrants that it will maintain the confidentiality of Customer Data and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the LaunchDarkly Service and to otherwise improve the LaunchDarkly Service. However, LaunchDarkly may compile aggregate data related to Customer' s usage of the LaunchDarkly Service and may use and/or disclose such aggregate data to third parties, to the extent that Customer is not identified as the source of such data and as long as the data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
8.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party's option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
8.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
8.5 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
8.6 LaunchDarkly has in place reasonable security procedures in accordance with industry standards. LaunchDarkly will provide the LaunchDarkly Service in accordance with its standard security policy, disaster recovery plan, and resilience plan. LaunchDarkly will also undergo a penetration test performed by a third-party at least twice a year. To the extent Customer Data comprises "personal data" within the meaning of applicable Data Protection Laws and Regulations, it is acknowledged that LaunchDarkly is acting on behalf of Customer as Data Processor. As Data Processor, LaunchDarkly shall: a) process Customer Data in accordance with this Agreement, Customer's instructions, and applicable Data Protection Laws and Regulations, b) take and maintain appropriate organizational, administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data, c) set up and maintain security measures against unauthorized access to or unauthorized alteration, disclosure, destruction or loss of Customer Data, d) not access Customer's User accounts, including Customer Data, except as to respond to service or technical problems or otherwise at Customer's request, and e) take reasonable steps to ensure that personnel used by LaunchDarkly to provide the LaunchDarkly Service are under strict confidentiality provisions and are aware of and are suitably trained in any such technical, organizational and security measures.
9. LIMITATION OF LIABILITY.
9.1 EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS (THE "EXCLUSIONS"), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE TO LAUNCHDARKLY DURING THE (12) TWELVE MONTHS PRIOR TO WHEN THE CLAIM ACCRUED.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION.
10.1 This Agreement commences on the Effective Date and continues until all Order Forms entered into under this Agreement have expired or been terminated unless terminated as otherwise provided herein. The Initial Term applicable to each Order Form commences upon Customer's execution of such Order Form and upon expiration of the Initial Term, the LaunchDarkly Service subscription term applicable to such Order Form shall continue to renew for Extension Terms equal to the term of the most recent Term, unless either party gives notice to the other party of its desire to not renew at least thirty (30) days prior to the end of the then- current Term.
10.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein.
10.3 The parties' rights and obligations under Sections 4, 5, 6.2, 7-19, 10.3, and 11 shall survive termination of this Agreement.
10.4 Upon the effective date of termination of this Agreement Customer's license to use the LaunchDarkly Service will cease. After such 30 day period LaunchDarkly will have no obligation to maintain any Customer Data.
11.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment LaunchDarkly Master Subscription Agreement (Click-through) May 2017 relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
11.2 Notices shall be in writing and delivered by nationally recognized overnight delivery service or certified or registered U.S. Mail, and are effective upon receipt.
11.3 To the extent of any conflict between this Agreement and any other Exhibit or document referenced herein, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a Statement of Work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
11.4 Either party may include the other's name or logo in customer or vendor lists in accordance with the other's standard guidelines. In addition, LaunchDarkly may refer to Customer's intended use of the LaunchDarkly Service in its marketing materials and on its websites as well as in discussions with LaunchDarkly customers, prospective customers, and industry and financial analysts.
11.5 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall 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 shall remain in effect.
11.6 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications failure which (i) hinders, delays or prevents a party in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, such party, or (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against ("Force Majeure Event).
11.7 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either party may assign this Agreement in its entirety (including all Order Forms hereunder), upon written notice to the other party, to an Affiliate or, to its successor in interest resulting from a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party and (ii) LaunchDarkly may use subcontractors in the ordinary course of business. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time.
11.9 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. Any dispute arising hereunder shall be brought exclusively in the courts located in the Northern District of California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Last updated and copyright as of: May 19, 2017