Important: Please read these terms before ordering, configuring and/or using the Subscription Service or Supported Software.
This Software Subscription Agreement, together with its attachments and Orders (the "Agreement"), is entered into as of the Effective Date by and between StreamNative and Customer. For purposes of this Agreement, StreamNative and Customer will be referred to individually as a "Party" and together as the "Parties". In consideration of the mutual covenants and promises set forth herein, the Parties hereby agree as follows:
1. Definitions
The following capitalized terms shall have the meanings set forth below:
1.1. "Customer" means any legal entity that enters into the agreement with StreamNative. For Marketplace Orders, Customer is the entity that placed the Marketplace Order.
1.2. "Effective Date" means the date specified in the applicable Order, or the Order date for any Order placed on the Marketplace or directly from StreamNative via its website.
1.3. "Licensed Software" means the StreamNative software product identified on an Order (other than Open Source Software), including any and all modifications, enhancements, bug fixes, patches and workarounds thereto.
1.4."Marketplace" a third-party marketplace on which StreamNative offers subscriptions to the Licensed Software and Support Services.
1.5."Open Source Software" means StreamNative or third party software that is licensed, provided or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license.
1.6. "Order" means an order form for (a) the Licensed Software, Support Services, and/or any professional and training services, agreed upon by the parties and referencing this Agreement, or (b) the Licensed Software and/or any Support Services selected and activated by Customer via an order placed through StreamNative's website or a Marketplace.
1.7. "Service Level Agreement" means the cloud uptime service level agreement for Bring Your Own Cloud and StreamNative Hosted deployments as set forth at /cloud-uptime-sla.
1.8. "Software Subscription Fee" means the fee for the Licensed Software purchased by Customer as specified on an Order.
1.9."Statement of Work" or "SOW" means a mutually executed written document referencing this Agreement that specifies any professional services to be provided by StreamNative to Customer.
1.10."StreamNative" means StreamNative, Inc., a Delaware corporation with an address at 440 N Wolfe Rd, Sunnyvale, CA 94085.
1.11. "Subscription Term" means the applicable initial and any renewal term as set forth in the applicable Order.
1.12. "Support Fee" means the fee for the Support Services purchased by Customer at the price for the applicable support tier set forth in the Order.
1.13."Support Services" means the technical support services identified on an Order, as described in StreamNative's Support Policy at /support-policy
2. Software Subscription and License
Subject to Customer's timely payment of all fees due hereunder and compliance with the terms and conditions of this Agreement, StreamNative hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the Licensed Software during the Subscription Term in accordance with any restrictions set forth herein. Customer may not offer the Licensed Software on a service bureau basis, including as a stand-alone product offering to a third party, without StreamNative's prior written consent. The license in this Section 2 will terminate upon the expiration or termination of the Subscription Term.
2.1. Open Source Software. If applicable, any StreamNative or third-party Open Source Software provided to Customer by StreamNative is distributed or made available under the terms of the open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files. Copyrights and other proprietary rights to the Open Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files.
3. Third Party Providers; Information Security
If Customer elects a StreamNative Hosted deployment on its Order, StreamNative has the sole responsibility for sourcing and securing the cloud environment for the Licensed Software. If Customer elects Bring Your Own Cloud or Private Cloud License on their Order, Customer is responsible for providing all hardware and/or cloud infrastructure services (e.g., storage, compute power) necessary for Customer to install and use the Licensed Software. Customer represents and warrants to StreamNative that (a) the information Customer provided about its third-party cloud provider ("Provider") and the Provider's environment is complete and accurate, and (b) Customer has the full right and authority to provide StreamNative with sufficient access to Customer's account(s) with Provider as necessary for StreamNative to provide the Licensed Software and Support Services. If Customer or Provider changes Customer's cloud environment, Customer acknowledges that StreamNative may no longer be able to provide the Licensed Software and Support Services in the same fashion, or at all. With respect to Bring your Own Cloud and Private Cloud License deployments, Customer acknowledges that, as between it and StreamNative, it is solely responsible for the security, integrity and availability of the Licensed Software hosted on Customer's or Provider's network, systems and premises, and Customer should ensure that its network, systems and premises are protected by reasonable and appropriate access controls and other security safeguards. StreamNative shall implement and maintain reasonable security measures as required by applicable law to provide the Licensed Software and Support Services, and StreamNative may, from time to time, issue software updates. However, the Licensed Software and Support Services are provided "as is" and "as available," when hosted on Customer's or Provider's premises or cloud environment, and StreamNative will not provide any information security support for such deployments.
3.1. Privacy. Customer is responsible for granting access to users of the Licensed Software and Support Services to its authorized users, preventing unauthorized access, and ensuring that Customer and all of Customer's users under its account(s) comply with privacy and information security laws applicable to the use of the Licensed Software and Support Services. Customer will not (and will not allow any third party to) use the Licensed Software or Support Services to intercept or monitor the communications of other users except as permitted by law, including with the consent of all parties to the communication. Customer has and abides by an appropriate privacy policy, will ensure that Customer has provided or shall provide any necessary notices to users or other data subjects, and will comply with all applicable data protection, privacy, communications, or information security laws relating to the information and communications from users of the Licensed Software and Support Services. Although StreamNative may collect and analyze aggregate and anonymized metrics relating to the use of the Licensed Software and Support Services for purposes of maintenance, support and product improvement, StreamNative does not access or otherwise use the contents of communications supported by the Licensed Software or Support Services. To the extent that StreamNative incidentally processes personal data of Customer's users when providing the Licensed Software or Support Services, the parties acknowledge and agree that Customer is the controller and StreamNative is the processor and service provider with respect to any such data processed pursuant to this Agreement. StreamNative will comply with Customer's instructions for processing personal data, and will not process, maintain or disclose personal data other than to provide the Licensed Software and Support Services pursuant to this Agreement.
4. Support Services
Subject to Customer's timely payment of the Support Fee and compliance with the terms and conditions of this Agreement, StreamNative shall provide to Customer the Support Services for the Support Tier set forth in the Order during the Subscription Term. Support Services will expire at the end of the Subscription Term. While the Customer is free to use any Open Source Software under the terms of the applicable open source license after the expiration of the Subscription Term, StreamNative will not provide the Support Services after the end of the Subscription Term.
5. Upgrades
StreamNative will notify Customer when upgrades to the Licensed Software become available. StreamNative and/or Customer will install upgrades according to the following procedures based on Customer's deployment model:
5.1.1. Hosted Cloud and Hosted Cloud Pro. StreamNative will automatically install upgrades on a rolling basis.
5.1.2.Bring Your Own Cloud and BYOC Pro. StreamNative will install upgrades and perform maintenance during such windows as determined by StreamNative and communicated to Customer in advance.
5.1.3. Private Cloud. StreamNative will provide upgrades to Customer to install and Customer is responsible for installing such upgrades.
StreamNative shall not be liable for any consequences of Customer's failure to install upgrades as directed by StreamNative.
6. Restricted Activities
Customer shall not, and shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Licensed Software; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for any Licensed Software; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Licensed Software to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of StreamNative or its suppliers contained on or within any copies of the Licensed Software; (e) disclose the results of any benchmark tests on the Licensed Software without StreamNative's prior written consent; (f) use the Licensed Software for the purpose of creating any product or service that may compete with the Licensed Software or the Support Services, or any other products, software or services offered by StreamNative; or (g) use the Licensed Software other than as described in the documentation provided therewith, as expressly permitted in this Agreement, or for any unlawful purpose.
7. Ownership of Licensed Software
StreamNative and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, Customer shall acquire no other rights, express or implied, in or to the Licensed Software, and all rights not expressly provided to Customer hereunder are reserved by StreamNative and its licensors. The Licensed Software provided or made available hereunder is licensed, not sold.
8. Fees and Billing
8.1. Payments and Invoicing. StreamNative will invoice Customer for the Software Subscription Fee and Support Fees with the billing frequency specified in Customer's Order. The Software Subscription Fee, Support Fee, Excess Usage Fees (as defined below) and any professional services fees are collectively referred to as "Fees". Customer is responsible for providing complete and accurate billing and contact information to StreamNative and notifying StreamNative of any changes to such information. Customer will pay to StreamNative all Fees within thirty (30) days of StreamNative's invoices therefore.
8.2. Consumption Units. Software Subscription Fees paid by Customer under this Agreement will be applied as consumption units ("Consumption Units") to Customer's account in the StreamNative cloud console ("Customer's Account") at a standard rate of $0.10 per Consumption Unit. Consumption Units will be automatically applied toward Customer's consumption of the Licensed Software based on Customer's actual usage of the Licensed Software on each usage dimension on the Order on an hourly basis, and deducted from Customer's Account accordingly.
8.3. Support Units. Support Fees paid by Customer under this Agreement will be applied to Customer's Account as Support Units, at a rate of the Support Percentage on the Customer's Order, multiplied by $0.10 (the "Support Unit Price"). One Support Unit will be deducted from Customer's account for each Consumption Unit used by Customer.
8.4. Usage Metrics; Unit Terms. StreamNative shall maintain records of the Customer's usage of Licensed Software (including for Excess Usage, as defined below) in Customer's Account (the "Usage Metrics"). Consumption Units and Support Units (collectively, "Units") may be used only by Customer, are non-transferable, and may not be assigned, sold, or transferred to any third party without the prior written consent of the StreamNative. Any discount on Customer's Order will only apply to the amount of cash Fees payable by Customer, and will not impact the price or quantity of any Units applied to Customer's account. Units are non-refundable and may not be redeemed for cash. StreamNative reserves the right to adjust the amount of Units applied to the Customer's account in the event of billing errors, unauthorized usage, or other circumstances warranting such adjustments, as determined by the StreamNative in its sole discretion. Units are allocated to Customer's Account according to the time periods set forth on the Order (typically, on a monthly or annual basis) and will expire and be forfeited if not used within the applicable period unless the Order expressly provides otherwise. Definitions for usage of the Licensed Software are available at https://docs.streamnative.io/docs/billing-overview (the "Pricing Guide"). In the event of a conflict between the terms of the Pricing Guide and an Order, the terms of the Order shall govern.
8.5. Included Units; Excess Usage. Fees for StreamNative's provision of the Licensed Software and Support are determined by the quantity of Units purchased by Customer for the applicable time period on Customer's Order (the "IncludedQuantity"), as well as for any excess usage of the Licensed Software and Support Services. Customer is required to pay Fees for the Included Quantity for each applicable time period on the Order, regardless of Customer's actual usage of the Licensed Software. The Total Due Now on Customer's Order is the minimum Fee payable by Customer, and may increase if Customer accumulates any Excess Usage Fees.
8.5.1. Excess Usage. If Customer's actual usage of the Licensed Software exceeds the Included Quantity allocated for the applicable time period on the Order ("Excess Usage"), additional Fees for any excess Units accumulated by Customer will be due ("Excess Usage Fees"). Customer shall pay Excess Usage Fees to StreamNative for the quantity of Units in excess of the Included Units at a rate of $0.10 per excess Consumption Unit, and at the Support Unit Price per excess Support Unit. No discounted rates will be applied to Units accumulated for Excess Usage. StreamNative will invoice Customer monthly in arrears for Excess Usage Fees, and Customer shall pay such Fees within thirty (30) days of its receipt of such invoices.
8.6. Pay-As-You-Go Billing. Customers with Pay-As-You-Go billing specified on their Order will be billed Fees for Consumption Units and Support Services monthly in arrears, based upon Customer's actual usage of the Licensed Software and Support Services, as determined by the system monitoring tools employed by StreamNative to track the Usage Metrics ("Pay-As-You-Go"). Billing rates for Pay-As-You-Go usage are at the rates set forth in the Pricing Guide (as may be modified from time to time in StreamNative's sole discretion) without any discount applied.
8.7. Sizing Exercise. StreamNative may prepare, in collaboration with Customer, a non-binding projection of Customer's anticipated usage of the Licensed Software across the various usage dimensions set forth in the Pricing Guide prior to entering an Order (the "Sizing Exercise") in order to estimate the minimum Fees to be payable by Customer . The Sizing Exercise is for informational purposes only, even if attached to an Order, and does not represent a binding commitment of StreamNative or Customer.
8.8. Pilot Terms. If Customer's order includes a trial period (the "Pilot Term"), the Subscription Term will commence automatically upon expiration of the Pilot Term unless Customer opts out of the Subscription Term by written notice to StreamNative prior to the expiration of the Pilot Term if the performance of the Licensed Software does not meet the success metrics set forth on an Order that includes a Pilot Term.
8.9. Automatic Renewal of Subscription and Opt-Out. The Subscription Term will automatically renew for additional periods equal to the Subscription Term on the Order, unless: (a) this Agreement is terminated pursuant to Section 9, or (b) either Party opts out of renewal by providing notice to the other Party within the thirty (30) period preceding the expiration of the then current term. Fees for any automatic renewal term will be priced at StreamNative's standard pricing as set forth in the Pricing Guide in effect on the date of such renewal. The provision of and rights to the Licensed Software will automatically renew at the end of the initial term and any renewal term, unless (x) either Party opts out as set forth above, or (y) Customer fails to pay the undisputed Fees required under this Agreement and fails to cure such non-payment within ten (10) days' notice from StreamNative.
8.10. Taxes. Customer shall pay all taxes, duties and levies of any governmental authority related to the services provided to Customer hereunder, including, but not limited to any sales, use, excise or VAT taxes, except for taxes based on StreamNative's income. If Customer claims exemption from any taxes arising under this Agreement, Customer shall provide StreamNative with documentation required by the taxing authority to support an exemption. All payments by Customer to StreamNative shall be made free and clear of and without reduction for all applicable taxes. If Customer is required to withhold any taxes on the amounts payable to StreamNative hereunder, Customer shall pay StreamNative such additional amounts as are necessary to ensure receipt by StreamNative of the full amount which StreamNative would have received but for the deduction on account of such withholding. All fees are non-refundable except as specifically set forth in this Agreement.
8.11. Late Payments. Any payment under the terms and conditions of this Agreement made after the date such payment is due and payable shall bear interest as of the day after the date such payment was due and payable and shall continue to accrue such interest until such payment is made at a rate equal to the lesser of either (a) two percent (2%) above the prime rate as reported by the Federal Reserve Bank of New York per month, as of the date such payment was due and payable, or (b) the maximum rate permitted by applicable law. Without prejudice to any other remedy for any breach of this Agreement, StreamNative may suspend Customer's access to the Licensed Software and Support Services and/or terminate this Agreement and any Order hereunder, with immediate effect, by giving written notice to Customer if Customer fails to make any payment under this Agreement within thirty (30) days after the date such payment became due and payable.
9. Term and Termination
9.1. Term. The initial term of this Agreement will commence upon the Effective Date and will be coterminous with the initial Order. If any subsequent Orders are executed by the Parties referencing this Agreement, this Agreement will continue or resume in effect with respect to the term of such subsequent Orders or SOWs. The "Term" of this Agreement means the term duration set forth on such initial Order and any subsequent Orders, including renewals and extensions.
9.2. Termination for Cause. Either Party may terminate this Agreement or an Order upon written notice in the event the other Party materially breaches this Agreement and such breach is not cured within thirty (30) days after written notice of such breach. Either Party may also terminate this Agreement immediately if the other Party (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver, or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.
9.3. Effect of Termination. Unless otherwise agreed by the Parties, upon the expiration or termination of this Agreement, all StreamNative's provision of all Support Services and Licensed Software granted hereunder will automatically terminate. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, intellectual property ownership rights, confidentiality obligations, warranty disclaimers, indemnification, and limitations of liability.
9.4. Suspension. StreamNative may temporarily suspend Customer's access to any portion or all of the Licensed Software or Support Services if StreamNative reasonably determines that (a) Customer's use of the Licensed Software or Support Services disrupts or poses a security risk to any StreamNative system or infrastructure, or to any other customer or vendor of StreamNative; (b) Customer is using the Licensed Software or Support Services for fraudulent or illegal activities; (c) Customer has failed to pay any Fees when due; (d) StreamNative's provision of the Licensed Software or Support Services to Customer is prohibited by applicable law; or (e) Customer has failed to make full and timely payment of any fees owed hereunder. StreamNative shall use commercially reasonable efforts to provide written notice of any such suspension to Customer and to provide updates regarding resumption of access such suspension. StreamNative shall use commercially reasonable efforts to resume providing access to the Licensed Software or Support Services after the event giving rise to the suspension is cured. StreamNative will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a suspension.
10. Feedback
Customer may submit to StreamNative comments or feedback concerning the functionality and performance of the Licensed Software and Support Services, including, without limitation, identifying potential errors and improvements and suggesting ideas for modifying any of StreamNative's products or services ("Feedback"). By submitting Feedback, Customer hereby assigns to StreamNative all right, title, and interest in and to such Feedback.
11. Confidentiality
11.1. Definition. "Confidential Information" means any information disclosed by one Party ("Discloser") to the other ("Recipient") in connection with this Agreement, directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as "Confidential," "Proprietary" or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. For avoidance of doubt, any third-party reports about StreamNative (such as its SOC2 audit report) provided by StreamNative to Customer will be considered Confidential Information of StreamNative, regardless of when such materials were disclosed. Confidential Information may include information disclosed in confidence to Discloser by third parties. For the purposes of this Agreement, the Licensed Software, and the results of any performance, functional or other evaluation of the Licensed Software, shall be deemed Confidential Information of StreamNative.
11.2. Exceptions. The confidentiality obligations in this Section 11 shall not apply with respect to any of the Discloser's Confidential information which Recipient can demonstrate: (a) was in the public domain at the time it was disclosed to Recipient or has become in the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) was disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any use of Discloser's Confidential Information by employees or other agents of (or contractors hired by) Recipient who had no access to or did not rely on Discloser's Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser's rights.
11.3. Restrictions on Use and Disclosure. Recipient agrees not to use Discloser's Confidential Information or disclose, distribute or disseminate Discloser's Confidential Information except in furtherance of the performance of its obligations or enforcement of its rights hereunder or as otherwise expressly agreed by Discloser in writing. Recipient agrees to restrict access to such Confidential Information to those employees or consultants of Recipient who need to know such Confidential Information for performing as contemplated hereunder and have agreed in writing to be bound by a confidentiality obligation no less protective than that contained in this Agreement. Recipient shall exercise the same degree of care to prevent unauthorized use or disclosure of Discloser's Confidential Information to others as it takes to preserve and safeguard its own information of like importance, but in no event less than reasonable care.
11.4. Compelled Disclosure. If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser's expense so that Discloser may take steps to oppose such disclosure or obtain a restraining order. Recipient shall not be in breach of its obligations in this Section 11 if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements.
11.5. Injunctive Relief. Recipient acknowledges that breach of the confidentiality obligations would cause irreparable harm to Discloser, the extent of which may be difficult to ascertain. Accordingly, Recipient agrees that Discloser is entitled to immediate injunctive relief in the event of breach of an obligation of confidentiality by Recipient, and that Discloser shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.
11.6. Return of Confidential Information. As between the parties, Confidential Information shall remain the property of the Discloser. At any time, upon Discloser's reasonable request, Recipient shall promptly (and in any event within thirty (30) days) return to Discloser or destroy, at the election of the Discloser, any Confidential Information of the Discloser. In addition, within thirty (30) days after termination of this Agreement, Recipient shall promptly (a) return all tangible materials containing such Confidential Information to Discloser, (b) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient, its contractors and its distributors, and (c) confirm in writing that all materials containing Confidential Information have been destroyed or returned to Discloser, as applicable, by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
12. Data Protection
Each Party shall comply with all applicable data protection and data privacy laws, including without limitation the General Data Protection Regulation (EU) 2016/679 ("GDPR"). Customer represents and warrants that, in relation to any personal data that may be disclosed by Customer to StreamNative from time to time in the course of the performance of its obligations under this Agreement, Customer shall obtain and has obtained all necessary consents from the individuals to whom the personal data relate for the disclosure of their personal data to StreamNative. Customer agrees to notify StreamNative prior to making any use of the Licensed Software or Support Services outside of the United States. Customer agrees and acknowledges that if this Agreement or the activities contemplated hereunder involve the "Processing" by StreamNative of "Personal Data" (as such terms are defined in the GDPR), then StreamNative's Data Processing Addendum ("DPA") will be incorporated into this Agreement as set forth at /dpa.
13. No Warranties
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT ALL USE OF THE SUPPORT SERVICES AND LICENSED SOFTWARE IS AT CUSTOMER'S SOLE RISK AND THAT ALL SUPPORT SERVICES AND LICENSED SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE." STREAMNATIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SUPPORT SERVICES OR LICENSED SOFTWARE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM STREAMNATIVE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STREAMNATIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) CUSTOMER'S USE OF THE SUPPORT SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, (B) ANY ERRORS IN THE LICENSED SOFTWARE WILL BE IDENTIFIED OR CORRECTED, OR (C) CUSTOMER'S USE OF THE SUPPORT SERVICES OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, TIMELY OR SECURE.
14. Limitation of Liability
14.1. Exclusion of Damages. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT STREAMNATIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY CUSTOMER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING LIMITATIONS ON STREAMNATIVE'S LIABILITY SHALL APPLY WHETHER OR NOT STREAMNATIVE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT STREAMNATIVE'S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
14.2 Liability Cap. EXCEPT FOR LOSSES WHICH MAY NOT BE LAWFULLY LIMITED BY APPLICABLE LAW, THE TOTAL LIABILITY OF STREAMNATIVE ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY OR DUE FROM CUSTOMER UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
15. Indemnification
15.1. Indemnification by StreamNative. StreamNative shall indemnify and defend and hold harmless Customer from and against any loss, cost, liability, settlements, judgments, costs and other expenses (including reasonable attorney's fees) arising from third-party claims brought against Customer alleging that the Licensed Software, when used as authorized under this Agreement, infringes a third party's intellectual property right (an "Infringement Claim"), provided that Customer gives StreamNative: (a) notification in writing of any such action within sixty (60) days of Customer's receipt thereof; (b) sole control of the defense or settlement of such action (provided any settlement releases Customer from all liability); and (c) all reasonable information and assistance, at StreamNative's expense. Infringement Claims do not include, and StreamNative's obligations in the preceding sentence do not apply to, any claim, suit, or proceeding to the extent that it arises out of, relates to, or alleges: (i) Customer's breach of this Agreement, modification of the Licensed Software after delivery by StreamNative, or violation of any provisions of Section 6 (Restricted Activities); (ii) StreamNative's creation or modification of the Licensed Software in compliance with specifications furnished by Customer; (iii) use of the Licensed Software in combination with hardware, software, or other products or services not provided by StreamNative if the claim would not have arisen but for such combination ("Third Party Products"); (iv) any Open Source Software delivered or used with the Licensed Software; (v) any use of the Licensed Software other than as expressly permitted in this Agreement; (vi) Customer's failure to incorporate updates or upgrades to the Licensed Software that would have avoided the alleged infringement; (vii) Customer's use of the Licensed Software after giving or receiving notice to or from StreamNative, respectively, that the Licensed Software infringes on a third party's intellectual property right; or (viii) any claim covered by Customer's indemnification obligations in Section 15.2 (Indemnification by Customer). If StreamNative receives information regarding an infringement claim related to the Licensed Software, StreamNative may in its sole discretion: (x) modify the Licensed Software so that it is no longer infringing; (y) obtain a license for Customer's continued use of the Licensed Software; or (z) terminate the Licensed Software and refund Customer a prorated amount any prepaid but unused fees for the remainder of the Subscription Term. StreamNative's indemnity for intellectual property infringement stated above only applies if Customer uses the Licensed Software in accordance with this Agreement. THIS SECTION 15.1 STATES THE EXCLUSIVE REMEDY OF CUSTOMER AND THE ENTIRE LIABILITY OF STREAMNATIVE WITH RESPECT TO ANY INFRINGEMENT CLAIM.
15.2. Indemnification by Customer. Customer shall indemnify, defend, and hold harmless StreamNative, its affiliates, directors, officers, employees, agents, and other representatives of StreamNative (the "StreamNative Indemnitees") from and against any loss, cost, liability, settlements, judgments, costs and other expenses (including reasonable attorney's fees) arising from or relating to any third party claims brought against any StreamNative Indemnitee: (a) resulting from Customer's breach of this Agreement; (b) alleging that Customer data or Customer's installation or use of the Licensed Software, whether alone or in combination with any Third Party Product infringes, violates, or misappropriates any third party intellectual property right; (c) relating to any non-StreamNative content or data used by or on behalf of Customer in connection with the Licensed Software; or (d) Customer's negligence, fraud, or intentional misconduct.
16. Insurance
StreamNative will maintain at its sole cost and expense the insurance described below for the Term: (a) Workers' Compensation. Workers' compensation or qualified self-insurance in compliance with the requirements of each US state in which services are to be performed by StreamNative employees under this Agreement. (b) Employment Practices Liability. Employment practices liability insurance with a limit of not less than $1 million for bodily injury by accident, $1 million for bodily injury by disease, and $1 million for policy limits. (c) Commercial General Liability. Commercial general liability insurance providing coverage on an occurrence form basis and including coverage for bodily injury, property damage, blanket contractual liability, products liability and completed operations. The insurance must have limits of not less than $1 million each occurrence for bodily injury and property damage and personal and advertising injury, $2 million general aggregate, and $1 million products and completed operations aggregate. (d) Auto Liability. Auto Liability insurance with a limit of liability of not less than $1 million for any one accident or loss for bodily injury and property damage and affording coverage for hired vehicles. (e) Professional Liability. Professional Liability coverage with a limit of liability of not less than $1 million for financial loss due to the errors and omissions of StreamNative and its employees. (f) Cyber Security. Cyber security and privacy liability coverage of at least $1 million for actual or alleged privacy breaches, confidentiality breaches, security breaches.
Where applicable, umbrella or liability insurance policies may be used to provide the limits required under this Agreement. None of the foregoing requirements as to the type and limits of insurance to be maintained by StreamNative is intended to, and such requirements should not be construed to, limit in any manner StreamNative's obligations under this Agreement.
17. Marketplace Terms
The following terms apply solely to Orders entered through a Marketplace:
17.1. Subscription Start Date. The Subscription Term start date may be up to several days later than the date of the Order.
17.2. Reporting Times. Reporting times on Customer's usage may be shifted by several hours to accommodate varying reporting requirements by the applicable Marketplace.
17.3. Renewals. Any Orders subject to discounts will not automatically renew, regardless of whether Customer has checked a "renew" or auto-renewal box on the applicable Marketplace Order.
18. Miscellaneous
Customer agrees to comply with all applicable United States and foreign export law, regulations and license restrictions relating to the Licensed Software. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. Each Party agrees to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from this Agreement. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld) provided that StreamNative may assign the entirety of its rights and obligations under this Agreement, without consent of the Customer, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. StreamNative may use and display Customer's name and logo on its website and marketing materials. This Agreement is the entire agreement between the parties relating to the subject matter hereof, and shall control over any additional or different terms regarding its subject matter in any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties. Waivers and amendments of any provision of this Agreement shall be effective only if signed by both parties. Unless otherwise stated herein, in the event of a conflict between the terms of this Agreement and any Order or SOW hereunder, the terms of this Agreement shall control. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable. The relationship between the Parties is that of independent contractors to each other. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the Parties hereto, nor shall either Party have the power to bind the other Party or incur obligations on the other Party's behalf without the other Party's prior written consent.