End User License Agreement (EULA)

1.1. Standard Agreement. This Standard End User Agreement (Version 1.0) (“Standard Agreement”) sets forth the terms and conditions under which Provider makes available Subscriptions to its Cloud Service or Provider Software (each, a “Product”) offered through a Listing on the Marketplace. Provider may (i) make additions to or modifications of this Standard Agreement (“Additional Terms”) or (ii) add Attachments by stating as such in its Listing. Any Additional Terms and any Attachments are collectively referred to as “Provider-Specific Terms.” Capitalized terms are defined in context or in Section 20 (Definitions).

1.2. Entering the Agreement. Customer and Provider agree to this Standard Agreement and any Provider-Specific Terms (collectively, the “Agreement”) upon Customer’s first entry into an Order (“Effective Date”).

1.3. Orders. As specified in the Marketplace, an Order may be between Customer and the Marketplace provider (or other reseller or agent of Provider) or directly with Provider. Each Order creates a separate Agreement between Provider and Customer but Orders do not become part of the Agreement.

1.4. Order of Precedence. In the event of a conflict between the elements of the terms and conditions making up the Agreement, the order of precedence is: (i) any Amendment, (ii) Provider-Specific Terms and (iii) this Standard Agreement.

2.1. Cloud Service. Subject to this Agreement, Customer may use the Cloud Service for its own business purposes in accordance with the Permitted Use.

2.2. Provider Software. Subject to this Agreement, Customer may install, copy and use the Provider Software for its own business purposes in accordance with the Permitted Use.

2.3. Users. Customer may permit Users to use the Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Product and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Provider upon learning of any compromise of User accounts or credentials.

3.1. Use of Customer Data. Subject to this Agreement, Provider will access and use Customer Data solely to provide and maintain the Cloud Service, Support and Professional Services under this Agreement (“Use of Customer Data”). Use of Customer Data includes sharing Customer Data as Customer directs through the Cloud Service, but Provider will not otherwise disclose Customer Data to third parties except as permitted in this Agreement.

3.2. Security. Provider will implement and maintain the Security Measures, if any, identified in the Provider-Specific Terms. If no Security Measures are identified, Provider will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data.

3.3. DPA. The parties will adhere to the Data Protection Addendum (DPA), if any, identified in the Provider-Specific Terms.

3.4. Usage Data. Provider may collect Usage Data and use it to operate, improve and support the Product and for other lawful business purposes, including benchmarking and reports. However, Provider will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer, its Users or any other person and (b) aggregated with data across other customers.

Each party will comply with all Laws that apply to its performance under this Agreement.

5.1. Support. Provider will provide Support for the Product as described in any Support Policy identified in the Provider-Specific Terms.

5.2. SLA. Provider will adhere to any Service Level Agreement (SLA) identified in the Provider-Specific Terms.

6.1. Mutual Warranties. Each party represents and warrants that: (a) it has the legal power and authority to enter into this Agreement, and (b) it will use industry-standard measures to avoid introducing Viruses into the Cloud Service.

6.2. Performance Warranty. (a) Scope. Provider warrants that the Product will perform materially as described in the Documentation and that Provider will not materially decrease the overall functionality of the Cloud Service during the Subscription Term (the “Performance Warranty”). (b) Claim Report. Customer must report a breach of warranty in reasonable detail (“Claim”) within 30 days after discovering the issue in the Product (“Claim Period”). (c) Remedy. Within 30 days of receiving a verified Claim during the Claim Period (“Fix Period”), Provider will use reasonable efforts to correct or provide a reasonable workaround (“Fix”) for the Claim. (d) Exclusive Remedy. The procedures set forth in this Section 6.2 are Customer’s exclusive remedies and Provider’s sole liability for breach of the Performance Warranty.

6.3. Disclaimers. Except as expressly set out in this Agreement, each party disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title and noninfringement.

7.1. Compliance. Customer (a) will comply with any Acceptable Use Policy (AUP) identified in the Provider-Specific Terms and (b) represents and warrants that it has all rights necessary to use Customer Data with the Cloud Service.

7.2. High-Risk Activities and Sensitive Data. Customer: (a) will not use the Product for High-Risk Activities, (b) will not submit Sensitive Data to the Cloud Service, and (c) acknowledges that the Product is not designed for use prohibited in this Section 7.2.

7.3. Restrictions. Customer will not and will not permit anyone else to: (a) sell, sublicense, distribute or rent the Product, (b) reverse engineer, decompile or seek to access the source code, (c) copy, modify, create derivative works or remove proprietary notices from the Product.

To the extent offered by Provider, Customer may choose to enable integrations or exchange Customer Data with Third-Party Platforms. Customer’s use of a Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement.

Provider will perform Professional Services as described in a Statement of Work, which may identify additional terms or milestones for the Professional Services. Customer will give Provider timely access to Customer Materials reasonably needed.

Fees will be as stated in the Order and payment terms are as set forth in the Order or terms of the Marketplace.

Provider may suspend Customer’s access to the Cloud Service and related services due to a Suspension Event, but where practicable will give Customer prior notice. “Suspension Event” means (a) Customer’s account is 30 days or more overdue, (b) Customer is in breach of Section 7 (Usage Rules) or (c) Customer’s use of the Cloud Service risks material harm.

12.1. Subscription Terms. Each Subscription Term will last for an initial 12-month period unless the Order states otherwise.

12.2. Term of Agreement. This Agreement starts on the Effective Date and continues until the end of all Subscription Terms.

12.3. Termination. Either party may terminate this Agreement if the other party fails to cure a material breach of this Agreement within 30 days after notice.

12.4. Data Export and Deletion. After termination or expiration of this Agreement, within 60 days of request, Provider will delete Customer Data and each party will delete any Confidential Information of the other in its possession or control.

12.5. Effect of Termination. Customer’s right to use the Product, Support and Professional Services will cease upon any termination or expiration of this Agreement.

13.1. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Provider retains all intellectual property and other rights in the Product.

13.2. Feedback. If Customer gives Provider feedback regarding improvement or operation of the Product, Support or Professional Services, Provider may use the feedback without restriction or obligation.

14.1. General Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed the General Cap.

14.2. Consequential Damages Waiver. Neither party will have any liability arising out of or related to this Agreement for indirect, special, incidental, reliance or consequential damages.

15.1. Indemnification by Provider. Provider, at its own cost, will defend Customer from and against any Provider-Covered Claims and will indemnify and hold harmless Customer from and against any damages or costs awarded against Customer.

15.2. Indemnification by Customer. Customer, at its own cost, will defend Provider from and against any Customer-Covered Claims.

16.1. Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and (b) protect Confidential Information using at least the same precautions recipient uses for its own similar information.

Neither party may publicly announce this Agreement without the other party’s prior approval or except as required by Laws.

Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated in the Order (or if not designated, 30 days).

19.1. Assignment. Neither party may assign this Agreement without the prior consent of the other party.

19.2. Governing Law and Courts. The Governing Law governs this Agreement and any action arising out of or relating to this Agreement.

19.4. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements.

“Acceptable Use Policy” or “AUP” is defined in Section 7.1 (Compliance).

“Additional Terms” is defined in Section 1.1 (Standard Agreement).

“Agreement” is defined in Section 1.2 (Entering the Agreement).

“Amendment” is defined in Section 19.5 (Amendments).

“Attachments” means any AUP, Security Measures, SLA, Support Policy or other policies specified in the Provider-Specific Terms.

“Cloud Service” means Provider’s proprietary software as a service (SaaS) or cloud service as identified in the applicable Listing.

“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Provider’s Confidential Information includes technical or performance information about the Product, and Customer’s Confidential Information includes Customer Data.

“Courts” is defined in Section 19.2 (Governing Law and Courts).

“Customer” means the party placing the Order.

“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Cloud Service accounts, including from Provider Software or Third-Party Platforms.

“Customer Materials” means materials and resources that Customer makes available to Provider in connection with Professional Services.

“Data Protection Addendum” or “DPA” is defined in Section 3.3 (DPA).

“Documentation” means Provider’s standard usage documentation for the Product. Documentation is included in the definition of “Product” unless otherwise specified.

“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.

“Governing Law” is defined in Section 19.2 (Governing Law and Courts).

“High-Risk Activities” means activities where use or failure of the Product could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.

“Laws” means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.

“Listing” means Provider’s description of its Product (and any related Support) and Subscriptions in a listing on the Marketplace that designates use of this Standard Agreement.

“Marketplace” means the application marketplace or app store on which Provider has published a Listing and made available Subscriptions to their Product.

“Open Source” is defined in Section 19.12.

“Order” means an order by Customer for a Subscription that is entered into through the Marketplace.

“Permitted Use” means use of a Product in accordance with the applicable Subscription, any Use Restrictions and the Documentation.

“Product” is defined in Section 1.1 (Standard Agreement).

“Professional Services” means training, migration or other professional services that Provider furnishes to Customer related to the Product.

“Provider” means the party providing the Product.

“Provider Software” means Provider’s proprietary installed software or apps identified in the applicable Listing.

“Provider-Specific Terms” is defined in Section 1.1 (Standard Agreement).

“Security Measures” is defined in Section 3.2 (Security).

“Sensitive Data” means (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit, bank account or other financial account numbers, (c) social security numbers, driver’s license numbers or other government ID numbers and (d) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation.

“Service Level Agreement” or “SLA” is defined in Section 5.2 (SLA).

“Standard Agreement” is defined in Section 1.1 (Standard Agreement).

“Statement of Work” means a statement of work for Professional Services that is signed by the parties and references this Agreement.

“Subscription” means the right for Customer to access the Product and any related Support as described in a Listing and the applicable Order.

“Subscription Term” means the term for a Subscription as identified in the Order.

“Support” means support for the Product as described in Section 5.1 (Support).

“Support Policy” is defined in Section 5.1 (Support).

“Suspension Event” is defined in Section 11 (Suspension).

“Third-Party Platform” means any product, add-on or platform not provided by Provider that Customer uses with the Cloud Service.

“Trials and Betas” mean access to the Product on a free or trial basis or to particular features designated by Provider as “beta” or “early access.”

“Usage Data” means Provider’s technical logs, data and learnings about Customer’s use of the Product, but excluding Customer Data.

“Use Restrictions” means user, seat, copy, installation, license or other scope of use restrictions for the Product as specified in a Listing or Order.

“User” means anyone that Customer allows to use its accounts for the Product, who may include (a) employees, advisors and contractors of Customer and (b) others if permitted in this Agreement, the Documentation or a Listing.

“Virus” means viruses, malicious code or similar harmful materials.