Last updated: February 25, 2020
Platform SUBSCRIPTION Services Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS PLATFORM SERVICE.
BY USING THE PLATFORM SERVICE OR CLICKING AGREE CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.
This agreement is between Astreya Partners, LLC, a California limited liability company (Astreya) and the customer agreeing to these terms (Customer).
This agreement provides Customer access to and usage of the Platform Service provided as an on-premise solution or an Internet-based service (SaaS Solution) as specified on an order.
Customer Data. All data uploaded or provided by Customer, whether directly or through a third-party data source, to the Platform Service remains the property of Customer, as between Astreya and Customer (Customer Data). Customer grants Astreya the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service; provided that, any Customer Data that was stored on a temporary basis will not be available for export purposes. The Platform Service is not a data archiving backup service, so Customer has sole responsibility for archiving and backing up the Customer Data outside of the Platform Service.
Third Party Data. Additionally, with respect to Customer Data that contains any third party data, Customer represents and warrant that: (i) it has the right to grant such license and make such Customer available to Astreya and if applicable users of the Platform Service; (ii) if such Customer Data is made available by Customer to other users of the Platform Service, then none of the Customer Data contains any data or information that is confidential, non-public, owned by or otherwise proprietary to a third party, not in the public domain or otherwise restricted or protected from use by any individual, entity or other party for any use by a third party; and (iii) neither the delivery to nor use by Astreya or its users, including users of the Platform Service, of such data violates or infringes the rights of any third party.
Access and Usage. Customer may allow its contractors to access the Platform Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Platform Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Astreya promptly of any such unauthorized access; and (iv) may use the Platform Service only in accordance with the Platform Service’s technical documentation and applicable law.
Astreya Support. Astreya must provide customer support for the Platform Service under the terms of Astreya’s Customer Support Policy (Support), which is located at https://www.relayiq.com/customer-support.
Trial Version. If Customer has registered for a trial use of the Platform Service, Customer may access the Platform Service for the time period specified by Astreya (unless extended by Astreya in writing). The Platform Service is provided AS IS, with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Platform Service account.
Beta. If Customer has registered for a beta version of the Platform Service, Customer may access the Platform Service until it is cancelled by Astreya upon notice via email, or by the Customer. The Platform Service is provided AS IS with no warranty during this time period, and not all features may be brought into the commercial version of the Platform Service. All Customer data will be deleted after the Beta period, unless Customer converts its account to a paid Platform Service.
Warranty. Warrants to Customer, that the functionality or features of the Platform Service may change but will not materially decrease during a paid term, and that the Support may change but will not materially degrade during any paid term. The Service Level for the Platform is located at https://www.relayiq.com/customer-support.
EXCEPT AS PROVIDED ABOVE, THE SERVICE IS PROVIDED ‘AS IS’ WITHOUT WARRANTY. Astreya DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE Astreya TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, Astreya DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Platform Service, which orders are governed by the terms of this agreement.
Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).
Astreya’s Confidential Information includes, without limitation, the Platform Service, its user interface design and layout, and pricing information.
Customer’s Confidential Information includes, without limitation, the Customer Data.
Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
Security Measures. In order to protect Customer’s Confidential Information, Astreya will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (ii) implement and maintain industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly test, or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designate an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer’s Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks (collectively, Security Measures).
Notice of Data Breach. If Astreya knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, Astreya will alert Customer of any such data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. Astreya will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. Astreya will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted Customer may provide notice to any or all parties affected by any data breach. In such case, Astreya will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. Astreya will provide Customer with information about what Astreya has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Confidential Information.
Reservation of Rights. The software, workflow processes, user interface, designs, Documentation, and other technologies provided by Astreya as part of the Platform Service are the proprietary property of Astreya and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Astreya. Customer may not remove or modify any proprietary marking or restrictive legends in the Platform Service. Astreya reserves all rights unless expressly granted in this agreement.
Restrictions. Customer may not (i) sell, resell, rent, or lease the Platform Service or use it in a service provider capacity; (ii) use the Platform Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Platform Service; (iv) attempt to gain unauthorized access to the Platform Service or its related systems or networks; (v) reverse engineer the Platform Service; or (vi) access the Platform Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
Aggregated Data. During and after the term of this agreement, Astreya may use and owns all anonymized and aggregated data within the Platform Service for purposes of enhancing the Platform Service, aggregated statistical analysis, technical support, and other business purposes.
TERM AND TERMINATION.
Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
Return of Customer Data. Within 30 days after termination, upon request Astreya will make the Platform Service available for Customer to export Customer Data as provided in Section 2. After such 30-day period, Astreya has no obligation to maintain the Customer Data and may destroy it.
Return Astreya Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Astreya for any unpaid amounts and destroy or return all property of Astreya. Upon Astreya’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
Suspension for Violations of Law. Astreya may temporarily suspend the Platform Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Platform Service, Customer has violated a law. Astreya will attempt to contact Customer in advance.
Suspension for Non-Payment. Astreya may temporarily suspend the Platform Service if Customer is more than 30 days late on any payment due pursuant to an order.
Exclusion of Indirect Damages. Astreya is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility of such damage or loss or if the damage or loss is foreseeable.
Total Limit on Liability. Except for Astreya’s defense of third-party claim obligations in Section 9, Astreya’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
DEFENSE OF THIRD-PARTY CLAIMS.
Astreya will defend or settle any third-party claim against Customer to the extent that such claim alleges that Astreya technology used to provide the Platform Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Astreya of the claim in writing, cooperates with Astreya in the defense, and allows Astreya to solely control the defense or settlement of the claim. Costs. Astreya will pay infringement claim defense costs it incurs in defending Customer, Astreya negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then Astreya may modify the Platform Service, procure the necessary rights, or replace it with the functional equivalent. If Astreya determines that none of these are reasonably available, then Astreya may terminate the Platform Service and refund any prepaid and unused fees. Exclusions. Astreya has no obligation for any claim arising from: Astreya’s compliance with Customer’s specifications; a combination of the Platform Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by Astreya. This section contains Customer’s exclusive remedies and Astreya’s sole liability for intellectual property infringement claims.
GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of California, County of Santa Clara (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for the State of California, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it; however, this agreement may be modified through an online process provided by Astreya. No waiver is effective unless the party waiving the right signs a waiver in writing.
No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger or sale of substantially all the assets of a party.
Independent Contractors. The parties are independent contractors with respect to each other.
Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
No Additional Terms. Astreya rejects additional or conflicting terms of any Customer form-purchasing document.
Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
Feedback. If Customer provides feedback or suggestions about the Platform Service, then Astreya (and those it allows to use its technology) may use such information without obligation to Customer.
Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions, and other applicable laws and regulations.
Last Revised 2/25/2020