You have elected to subscribe to the platform and related services offered by either Engine Yard, Inc. or a subsidiary of Engine Yard, Inc. (such platform and services, collectively, the “Engine Yard Services”) made available at http://www.engineyard.com (or any successor URL controlled by Engine Yard, Inc.) (the “Engine Yard Website”).
Depending on your selection at the time of subscription, all references hereinafter to “Selected Services” shall refer to the specific Engine Yard Services provided by either Engine Yard, Inc. or a subsidiary of Engine Yard Inc. All references hereinafter to “Engine Yard” shall refer solely to the specific provider of the Selected Services, be it Engine Yard, Inc. or an Engine Yard, Inc. subsidiary.
These terms of service (“Terms of Service” or “Agreement”) govern the provision to you (if you are accepting these Terms of Service in your individual capacity) or the company of which you are a duly authorized employee or agent (“Customer”) of the Selected Services, and Customer’s usage of the same. By using the Selected Services, Customer agrees to be bound by these Terms of Service to the exclusion of all other terms. If Customer does not unconditionally agree to all of the terms and conditions of this Agreement, then Customer should not use (and has no right to use) the Selected Services or the Engine Yard Website. Engine Yard may update these Terms of Service from time to time, and will notify Customer of such updates either via email or by posting such changes on the Engine Yard Website, or other reasonable means. Customer’s continued use of the Selected Services following notification of an updated version of the Terms of Service shall constitute Customer’s consent thereto. Engine Yard may make modifications to the Selected Services in its discretion, provided that such modifications do not materially adversely affect the features or functionality of the Selected Services. This Agreement applies solely to the Selected Services and no other.
1. Selected Services. Engine Yard shall use commercially reasonable efforts to provide the Selected Services. Support services are defined in Engine Yard’s Support Policies section of the Engine Yard Website http://www.engineyard.com/products/support-policies, as updated from time to time based on Engine Yard’s then current business practices, and are available for purchase at various tiers separately from the Selected Services in accordance with Engine Yard’s then current pricing for such support services and subject to any terms and conditions provided by Engine Yard with such support services from time to time. The Selected Services may incorporate or link to components or services provided by one or more third parties (such services, “Third Party Services”, and such providers, “Third Party Service Providers”). Customer agrees that its use of those Third Party Services may be subject to terms and conditions and policies (including any amendments or modifications to those terms and conditions and policies) that are specific to such Third Party Services, and that it shall be bound by such terms and conditions and policies.
(a) Fees. Customer shall pay Engine Yard’s then current pricing for the Selected Services. Such fees shall accrue based on Customer’s usage of the Selected Services. Engine Yard shall automatically bill Customer’s credit card based on Customer’s usage of the Selected Services during each month and shall send a sales receipt to Customer for such Selected Services via email. Unless otherwise set forth in a Service Order Form, all payments from Customer to Engine Yard in connection with this Agreement must be made in United States dollars.
(b) Late Payment; Collections. Engine Yard may charge Customer a late fee on any amount that is not paid when due equal to the lesser of 1.5% per month or the maximum rate permitted by law, plus all reasonable expenses and costs of collection (including collection agency fees, attorney fees and court costs). Without limiting the foregoing, Engine Yard may without liability immediately suspend any or all Selected Services, or immediately terminate this Agreement, if payment for any Service is rejected or declined or becomes the subject of a credit card chargeback. As a condition to any resumption of suspended or terminated Selected Services, Customer shall pay Engine Yard’s then current reinstatement fee.
(c) Termination. Without limiting any other remedy available to Engine Yard, if this Agreement expires or terminates for any reason, Customer shall pay all unpaid fees for Selected Services related to periods up to and including the date of expiration or termination. Customer acknowledges and consents to Engine Yard automatically charging Customer’s credit card for such amounts.
(d) Taxes. Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity, or any non-US government entity on any of the Selected Services under this Agreement (“Taxes”). Customer shall be liable for and shall pay any and all Taxes and related charges, however designated, imposed on the provision of the Selected Services (excluding taxes based solely on Engine Yard’s net income) regardless of whether Engine Yard fails to collect the tax at the time the Selected Services are provided. When Engine Yard has the legal obligation to pay or collect such Taxes, the appropriate amount shall be paid by Customer, and Customer acknowledges and consents to Engine Yard automatically charging Customer’s credit card for such amount, unless Customer provides Engine Yard with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Engine Yard original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.
3. Restrictions; Compliance with Laws and Other Matters.
(a) Prohibited Behavior. Customer shall not, and shall not permit any users of Customer’s applications hosted by Engine Yard as part of the Selected Services (such applications, “Customer Applications”, and such users, “Users”) or any other party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Engine Yard to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Engine Yard or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Customer Application or Selected Services; (ii) interference with others’ usage of the Selected Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software unless (1) the User affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (2) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “add/remove” tool); (vi) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right; (vii) collection, storage, publication, transmission, viewing or other use of any content that, in Engine Yard’s opinion, (1) is obscene, (2) constitutes or promotes child pornography, (3) is excessively violent, incites or threatens violence, or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, or (6) creates a safety or health risk to an individual or the public; (viii) any other activity that places Engine Yard in the position of fostering, or having liability for, illegal activity in any jurisdiction; (ix) any activity that violates the acceptable use policy or similar set of terms of any Third Party Service Providers for Third Party Services that have been made available to Customer; or (x) attempting to probe, scan, penetrate or test the vulnerability of an Engine Yard system or network or to breach Engine Yard’s security or authentication measures, whether by passive or intrusive techniques. If any IP address corresponding to any Customer Application becomes listed on Spamhaus, Spews, NJABL or any other reputable abuse database, then Customer will be deemed to be in breach of this Section 3(a), regardless of whether or not the IP numbers were listed as a result of Customer’s actions. Engine Yard may suspend the provision of Selected Services to Customer if Customer or a User engages in any of the foregoing activities.
(b) Security. Customer shall take all reasonable security precautions in connection with its use of the Selected Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Selected Services and shall change its passwords periodically. If the Customer Application is hacked or otherwise accessed by a third party without authorization, then Engine Yard may take the Customer Application offline until Engine Yard determines that the intrusion is finally resolved.
(c) Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Customer Application and Selected Services including, as applicable, the CAN-SPAM Act of 2003 and all laws and regulations applicable to bulk or commercial email. Customer shall establish a process to respond to notices of alleged infringement or illegal content that complies with applicable law. Customer acknowledges and agrees that (i) Engine Yard may, but is not obligated, to monitor Customer’s compliance; and (ii) Engine Yard may, without liability to Customer, block or take down the transmission of email or other content in Customer’s Application or otherwise that in Engine Yard’s opinion violates any such law or regulation or otherwise imposes any liability on Engine Yard. Engine Yard reserves the right to suspend or terminate Customer’s accounts or Application if Engine Yard determines, in its reasonable opinion, that the content in Customer’s Application or otherwise is in breach of applicable law.
(e) Cooperation with Investigations and Legal Proceedings. Engine Yard may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or Users that Engine Yard believes violates applicable criminal law; and (ii) provide any information that it has about Customer or its Users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
4. Customer Application; Customer Account. Customer is solely responsible for its Customer Application, including for (i) controlling the access to, and use and security of, the Customer Application and the data residing in or processed via the Customer Application, (ii) maintaining the security of the passwords and other measures used to protect access to Customer’s account, and (iii) all instructions provided to Engine Yard through Customer’s account, whether or not authorized by Customer. Customer must have valid and current information on file with its domain name registrar and may only use IP addresses which Engine Yard assigns to it.
5. Suspension of Selected Services. Engine Yard may suspend the provision of Selected Services to Customer or remove any data or content transmitted via the Selected Services without liability (i) if Engine Yard reasonably believes that any Selected Service is being used in violation of this Agreement or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Engine Yard shall use commercially reasonable efforts to notify Customer prior to suspending Selected Services as permitted under this Agreement, or (iii) as otherwise specified in this Agreement. Information on Engine Yard’s servers may be unavailable to Customer during a suspension of Selected Services.
6. Customer Warranties. Customer represents and warrants to Engine Yard that (i) the information Customer has provided for the purpose of establishing an account with Engine Yard is complete and accurate, and (ii) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information during the term of this Agreement
7. Indemnification. Customer shall indemnify and hold harmless Engine Yard from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys’ fees and expenses) arising out of or related to any of the following: (i) actual or alleged use of the Selected Services (including the Customer Application) in violation of this Agreement or applicable law by Customer or any Users (including any actual or alleged infringement or misappropriation of third party intellectual property rights by the Customer Application or arising from data or other content posted or stored on the Selected Services or the Customer Application by Customer or its Users); (ii) any dispute between Customer and its customers, contractors or Users; (iii) the operation or use of any Customer Application or any data or content contained therein or transmitted thereby; or (iv) any violation by Customer, its customers, contractors or Users, of any terms, conditions, agreements or policies of any Third Party Service Provider. Customer shall not settle any claim under this Section 7 without the prior written consent of Engine Yard.
8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SELECTED SERVICES ARE PROVIDED “AS IS” AND ENGINE YARD (FOR ITSELF, ITS PARENT, AND ALL OF ENGINE YARD’S SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS) DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NEITHER ENGINE YARD (NOR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SELECTED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL ENGINE YARD OR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS, LICENSORS OR SUPPLIERS, BE LIABLE UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) FOR:
I. PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION or for ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER CAUSED AND UNDER ANY THEORY OF LAW INCLUDING BREACH OF CONTRACT, STATUTE, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
II. ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES ACTUALLY RECEIVED BY ENGINE YARD FROM CUSTOMER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
CUSTOMER ACKNOWLEDGES THAT EACH OF THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND THAT ABSENT SUCH LIMITATIONS ENGINE YARD WOULD NOT PROVIDE THE SELECTED SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE SELECTED SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES ENGINE YARD AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA.
Nothing in this Agreement SHALL excludE or limit either party’s liability for death or personal injury arising from its negligence, or for fraud.
(a) Customer. Customer may terminate this Agreement upon ten (10) days written notice to Engine Yard and shall pay all amounts due for Selected Services through the effective date of termination in accordance with Section 2(c).
(b) Engine Yard . Engine Yard may terminate this Agreement without liability as follows: (i) in accordance with Section 2(b) or Section 3(c); (ii) without limiting the foregoing subsection (i), upon notice if Customer materially violates any provision of this Agreement and fails to cure the violation within thirty (30) days of a written notice from Engine Yard; (iii) upon one (1) Business Day’s notice if Customer uses the Selected Services in violation of a material term of this Agreement more than once (after having received notice from Engine Yard regarding the initial violation); or (iv) upon five (5) Business Day’s notice if Engine Yard is threatened with a legal claim for intellectual property infringement related to the provision of a Selected Service and is unable, through commercially reasonable efforts, to obtain a license or modify such Selected Service in a way that avoids an ongoing risk of liability. A “Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Standard Time time, excluding any day that banks in the United States are required or permitted to be closed.
(c) Effect of Termination. Notwithstanding the foregoing, Customer acknowledges and agrees that Engine Yard may, in its sole discretion and without obligation, delete all data or content in Engine Yard’s possession or control, including but not limited to “Customer Data” as defined in Section 11(a) hereinbelow, after thirty (30) days following any termination or expiration of this Agreement for any reason, without liability to Customer. Sections 2, 7, 8, 9, 10, 12, 13, and 14 will survive any expiration or termination of this Agreement.
11. Use of Data; EU Data Subjects; Security.
(a) Customer Data. Engine Yard may use, process, transfer and disclose information or data of Customer and its Users that is stored in a Customer Application or otherwise provided by Customer or its Users as part of the Selected Services (collectively, “Customer Data”) only to the extent necessary to provide the Selected Services or as otherwise may be permitted under applicable law; provided that Engine Yard may also disclose Customer Data (i) to third parties in connection with the provision of Selected Services (provided such third parties are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Selected Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include “Direct Customer Information” (as defined below).
(c) EU Data Subjects. If Engine Yard receives any Customer Data constituting “personal data” as defined in the EU Data Protection Directive 95/46/EC (as may be amended from time to time) from Customer or its Users in connection with the Selected Services, including any such Customer personal data that may be collected by or stored in the Customer Application or otherwise hosted on servers owned or controlled by Engine Yard, then Customer agrees that: (i) Customer is the data controller with respect to such Customer Data; and (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such Customer Data, including obtaining all necessary consents from relevant EU Data Subjects and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights under the relevant data protection law. Engine Yard will act as the data processor of such Customer Data and in that capacity will use commercially reasonable efforts to assist Customer in enabling it to comply with the applicable data protection law. Customer acknowledges that Engine Yard utilizes servers located in the United States, and consents to the transfer of Customer Data to the United States. Customer further acknowledges and agrees that any data or information stored by Customer on such servers is subject to the laws of the United States, including copyright, privacy and defamation laws.
(d) Data Security. Engine Yard will use commercially reasonable efforts to prevent the unauthorized access, use or disclosure of Customer Data and Direct Customer Information located on Engine Yard servers, including the implementation of industry-standard measures designed to maintain the security of such data. Customer acknowledges, however, that Engine Yard cannot guarantee the security of such data given the nature of the Internet.
12. Third Party Services and Separate Products.
(b) Third Party Services Changes. Engine Yard may suspend or terminate a Third Party Service upon written notice to Customer if the Third Party Service is suspended or ceases to be provided for any reason (whether generally or through Engine Yard), and Engine Yard may modify the pricing charged to Customer or features available with respect to such Third Party Service if the Third Party Service Provider modifies the pricing or features of such Third Party Service. Engine Yard shall use reasonable efforts to provide Customer a reasonable notice period with respect to any such suspension, termination or price or feature modification, which period Customer acknowledges may be determined in part by the amount of notice the Third Party Service Provider provides to Engine Yard of such events.
13. Notices. All notices to Engine Yard under this Agreement (including notices required to be in writing) may be sent to Engine Yard via e-mail through Customer’s Engine Yard online support account. Notices to Customer under this Agreement shall be given via email to the individual designated as Customer’s “Customer Contact” when signing up for the Selected Services online through the Engine Yard Website, or as specified in these Terms and Conditions, or by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
(a) Non-Solicitation. During the term of this Agreement and for 12 months thereafter, Customer agrees that it shall not solicit for employment any employee of Engine Yard with whom it has had direct contact in connection with this Agreement. Notwithstanding the foregoing, Customer shall not be precluded from (i) hiring an employee of Engine Yard who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If Customer violates this provision, in addition to any other right Engine Yard may have at law or in equity, Customer shall make a one-time payment to Engine Yard in the amount of thirty percent (30%) of the employee’s then-current annual base salary.
(b) Ownership; Licenses; Customer Data. As between the parties, Engine Yard owns and shall retain all rights in the Selected Services (including all related infrastructure), Engine Yard’s trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights. Customer grants Engine Yard (and its subcontractors) during the term of this Agreement a non-exclusive, worldwide, royalty-free, sublicensable, license to use, reproduce, modify, publicly perform, publicly display and distribute Customer Data for purposes of providing the Selected Services hereunder. In addition, Engine Yard shall have the right, but not the obligation, to retain copies of Customer Data for legal compliance purposes.
(c) Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California, USA, excluding its conflicts of law rules. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Except for disputes involving the assertion of Engine Yard’s intellectual property rights and claims for injunctive relief, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration in San Francisco County, California, using the English language, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. Such arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Arbitration Rules and Procedures. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco County, California. Use of the Selected Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.
(d) Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(e) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather, will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein.
(f) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(g) No Third Party Beneficiaries. Except with respect to Sections 8 and 9 as they apply to Engine Yard’s parent, subsidiaries, affiliates, and Engine Yard’s and its parent’s, subsidiaries’ and affiliates’ respective employees, officers, agents, licensors and suppliers, there are no third party beneficiaries to this Agreement.
(h) Severability. In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.
(i) Marketing. Customer grants Engine Yard the right during the term of this Agreement to use Customer’s name, mark and logo on the Engine Yard Website and in Engine Yard’s promotional materials solely to identify Customer as a customer of Engine Yard, in accordance with any usage guidelines delivered by Customer to Engine Yard.
(j) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other, and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Engine Yard may provide the Selected Services to any person, including a competitor of Customer.
(k) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Engine Yard may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.
(l) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.