Cloud Subscription Agreement
Last Updated: August 18, 2020
Important: Please read these terms before ordering, configuring and/or using the Subscription Service or Supported Software.
This agreement (this "Agreement") describes the relationship between StreamNative, Inc., a Delaware corporation with an address at 44 Tehama St, San Francisco, CA 94105 ("StreamNative") and you (each of StreamNative and you, a "Party" and, collectively, the "Parties"). This Agreement will become effective on the date you accept the terms of this Agreement (the "Effective Date"). By installing, configuring, and/or using the Subscription Service or Supported Software in any way, you ("You" or "Customer") are unconditionally consenting to be bound by the terms of and become a party to this agreement with StreamNative. StreamNative does not agree to any other terms, including without limitation any terms on your purchase orders or invoices.
If you are accessing the Subscription Service for a business, organization or other legal entity, then (a) you represent and warrant that you have the authority to legally bind that entity to this Agreement and to grant StreamNative all permissions and licenses provided in this Agreement, and (b) all references to "you" and "Customer" below refer to this entity.
The following capitalized terms shall have the meanings set forth below:
1.1 "Feedback" means any comments or other feedback Customer may provide to StreamNative concerning the functionality and performance of the Subscription Services and the Supported Software, including identification of potential errors and improvements.
1.2"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.
1.3 "Order Form" means (i) a purchase order executed by the Parties under this Agreement specifying the Subscription Services ordered by the Customer; or (ii) any request or instructions to activate new Subscription Services sent by Customer to StreamNative using Customer's Account management portal.
1.5 "Subscription Fee" means the fee for the Subscription Services purchased by Customer, as set forth on the Order Form.
1.6 "Subscription Services" means the cloud-based provision of the Subscription Software, together with the technical support and consulting services corresponding to the Support Offering set forth in the Order Form.
1.7 "Subscription Software" means the StreamNative software identified on an Order Form (other than Open Source Software), e.g., the edition of "StreamNative Platform" that may be identified on the Order Form.
1.8 "Subscription Term" means the applicable initial and/or renewal subscription term as set forth in the applicable Order Form.
1.9 "Support Offering" means each "Support Package" or "Support Offering" offered by StreamNative, as more particularly described in the Order Form.
1.10 "Supported Software" means the Subscription Software and/or Open Source Software identified on the Order Form as software for which StreamNative agrees to provide Subscription Services to Customer.
2.1 Order Form. All Order Forms are subject to the terms of this Agreement and are not binding until accepted by StreamNative. Order Forms created by Customer through its Account on the StreamNative website are deemed accepted when StreamNative provides access to the Subscription Services selected by Customer. All Order Forms are non-refundable except as expressly provided in this Agreement.
2.2 Subscription Services. Subject to Customer's timely payment of the Subscription Fee and compliance with the terms and conditions of this Agreement, during the Subscription Term StreamNative shall provide to Customer the Subscription Services set forth in the Order Form. Unless renewed, Subscription Services will expire at the end of the applicable Subscription Term. Subscription Services and Support Offerings are provided subject to StreamNative's service level agreement available at https://streamnative.io/cloud-uptime-sla.
2.3 Support Services. StreamNative will provide support for the Subscription Software, as provided in StreamNative's applicable support policy and in accordance with the level of Support Offering purchased in the applicable Order Form. If Customer does not purchase a different Support Offering level, StreamNative will provide an "essentials" or "free" level of support during the applicable Subscription Service term.
2.4 Subscription Fee; Payment. Customer will pay to StreamNative the Subscription Fee, and any additional amounts agreed in an Order Form, within thirty (30) days of StreamNative's invoice therefor. All payments by Customer to StreamNative hereunder shall be made free and clear of and without reduction for all applicable sales or use, goods and services, value added, consumption or other similar fees or taxes imposed by any government (other than taxes on the net income of StreamNative), which shall be paid by Customer. Accordingly, 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. For Order Forms that require payment by credit card, StreamNative uses a third-party credit card processing service to process payments. Customer consents to the use of such service and to the transfer of Customer's credit card details to such third-party processor. Customer agrees to be bound by any separate terms applicable to the processing service. Customer's credit card will be charged fees automatically for Customer's use of the Subscription Service at the end of each billing cycle.
2.5 Late Payments. Late payments will bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Upon notice to Customer, StreamNative may suspend Customer's access to the Subscription Services or Support Offerings for failure to pay any amounts owed when due.
2.6 Direct Orders. Sections 2.4 and 2.5 only apply to Order Forms placed directly with StreamNative. If Customer purchases any Subscription Services through a StreamNative-authorized reseller, Customer will pay the reseller for such purchase and different terms may apply.
2.7 Account Information. You must register an account (your "Account") to access and use the Subscription Service, or for certain other purposes in connection with the StreamNative website. You must provide accurate, current and complete information during the registration process and keep your Account information, including contact and billing information, up-to-date at all times. You may not register more than one Account unless StreamNative authorizes you to do so. You may not assign or otherwise transfer your Account to another party. You are responsible for maintaining the confidentiality and security of your Account credentials and may not disclose your credentials to any third party. You must immediately notify StreamNative if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Account. You are liable for any and all activities conducted through your Account.
3. Restricted Activities
Customer shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Subscription Software; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for any Subscription Software not provided by StreamNative to Customer in source code form, in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer its Subscription Service access 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 Subscription Software or Subscription Service; (e) use the Subscription Software or the Subscription Service with any unsupported software (as may be noted by StreamNative in the documentation for such Subscription Software); (f) disclose the results of any benchmark tests on the Subscription Software or the Subscription Service without StreamNative's prior written consent; (g) use the Subscription Software for the purpose of creating a product or service competitive with the Subscription Software or the Subscription Service; or (h) use the Subscription Software or the Subscription Service other than as described in the documentation provided therewith, or for any unlawful purpose.
4. Intellectual Property; Customer Content
4.1 Subscription Software License. Subject to Customer's timely payment of the Subscription Fee and compliance with the terms and conditions of this Agreement, StreamNative hereby grants Customer a non-exclusive, non-transferable, non-sub-licensable license during the applicable Subscription Term to use the Subscription Software, solely for Customer's internal business purposes.
4.2 Open Source Software. If applicable, any StreamNative or third party Open Source Software provided to Customer by StreamNative is 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.
4.3 Ownership of Subscription Software. StreamNative and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Subscription 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 Subscription Software, and all rights not expressly provided to Customer hereunder are reserved by StreamNative and its licensors. All the copies of the Subscription Software provided or made available hereunder are licensed, not sold.
4.4 Customer Content. Customer owns and retains all right, title and interest in and to all data, media and information Customer provides to StreamNative (the "Content"). Customer hereby grants to StreamNative a non-exclusive, non-transferable, non-sub-licensable right and license to use the Content during the Subscription Term for the purpose of performing StreamNative's obligations under the Agreement. Customer is solely responsible for all changes to and/or deletions of Content and the security of all passwords and other access protocols required in order to access the Subscription Service, and is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Content. Customer shall procure all rights and privileges to obtain and transfer Content to StreamNative under the terms of this Agreement. Customer's provision of such Content to StreamNative shall be in compliance with all applicable laws and regulations, including but not limited to all privacy laws and regulations.
5.1 Term of Agreement. Unless otherwise terminated in accordance with this section, this Agreement will remain in effect until the expiration of all applicable Subscription Terms.
5.2 Termination. Unless otherwise stated in an applicable Order Form, Customer may discontinue its use of the Subscription Services at any time for any reason by following the process in the StreamNative website interface to "Delete" Customer's purchased Subscription Services. Either party may terminate this Agreement and any Order Form if the other party materially breaches this Agreement and fails to cure such breach within 30 days of written notice thereof.
5.3 Suspension. StreamNative may temporarily suspend Customer's access to any portion or all of the Subscription Services if StreamNative reasonably determines that (a) Customer's use of the Subscription 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 Subscription Services for fraudulent or illegal activities; (c) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) StreamNative's provision of the Subscription Services to Customer is prohibited by applicable law. 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 Subscription 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.
5.4 Effect of Termination. Unless otherwise agreed by the parties, upon the expiration or termination of this Agreement or any Order Form all Subscription Services granted herein or therein will automatically terminate and Customer will discontinue all use of the Subscription Software and will return to StreamNative or destroy all copies of the Subscription Software and any materials relating thereto provided by StreamNative to Customer. Termination of an Order Form will not automatically result in the termination of this Agreement. Customer is solely responsible for exporting any content or data stored on the Subscription Services prior to expiration or termination of this Agreement. Customer acknowledges that following expiration or termination it will have no further access to any Subscription Service. Sections 1, 2.4, and 3 through 10 shall survive any termination or expiration of this Agreement or any Order Form.
Customer may submit to StreamNative bug reports, comments, feedback or ideas about the Subscription Services or the Supported Software, including without limitation about how to improve the Subscription Services or the Supported Software. By submitting any Feedback, Customer hereby assigns to StreamNative all right, title, and interest in and to the Feedback, if any.
7. Confidentiality; Privacy and Information Security
7.1 Definition. "Confidential Information" means any information disclosed by one party ("Discloser") to the other ("Recipient"), 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, including personal information subject to applicable privacy, data protection and breach notification laws. For the purposes of this Agreement, the Subscription Software, and the results of any performance, functional or other evaluation of the Subscription Software, shall be deemed Confidential Information of StreamNative.
7.2 Exceptions. The confidentiality obligations in this Section 7 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.
7.3 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.
7.4 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 7 if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements.
7.5 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.
7.6 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 30 days) return to Discloser or destroy, at the election of the Discloser, any Confidential Information of the Discloser. In addition, within 30 days after termination of this Agreement, Recipient shall (i) promptly return all tangible materials containing such Confidential Information to Discloser, (ii) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient, its contractors and its distributors, and 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.
7.8 Information Security. [Customer acknowledges that, as between it and StreamNative, it is solely responsible for the security, integrity and availability of its access to the Subscription Service, 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 commercially reasonable security measures as required by applicable law to provide the Subscription Services and that are designed to prevent the compromise, disclosure or dissemination of personal information to any unauthorized third party. StreamNative may, from time to time update the Subscription Services and/or Subscription Software. However, as further specified in Section 9 below, the Subscription Services are provided "as is" and "as available," and do not include information security support.]
8. No Warranties
STREAMNATIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SUBSCRIPTION SERVICES OR SUPPORTED 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 SUBSCRIPTION SERVICES OR SUPPORTED SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, (B) ANY ERRORS IN THE SUPPORTED SOFTWARE WILL BE IDENTIFIED OR CORRECTED, OR (C) CUSTOMER'S USE OF THE SUBSCRIPTION SERVICES OR SUPPORTED SOFTWARE WILL BE UNINTERRUPTED, TIMELY OR SECURE.
9. Limitation of Liability.
9.1 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.
9.2 Liability Cap. THE TOTAL LIABILITY OF STREAMNATIVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, NOT TO INCLUDE A BREACH OF THE CONFIDENTIALITY PROVISIONS OF SECTION 7.3, WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
10.1 StreamNative may update this Agreement from time to time as provided in this provision. Any such revised Agreement will be posted online at this location, and will be marked with a new "Last Updated" date at the top of the document. StreamNative may (but is not required to) provide additional notice of such updates by email or other reasonable means. If you disagree with the revised Agreement, you may terminate this Agreement with immediate effect by notifying StreamNative in writing within thirty (30) days following any such update. Your continued access to or use of the Subscription Service or Supported Software constitutes acceptance of the revised Agreement. Except for such updates made by StreamNative, any waivers or and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements indicating specifically what sections of this Agreement are affected, signed by both parties and clearly understood by both parties to be an amendment or waiver.
10.2 Unless specified otherwise in this Agreement, any notices or other communications permitted or required under this Agreement between StreamNative and you may be provided electronically via email (to firstname.lastname@example.org to StreamNative, or to any email address you have provided in connection with your Account, to you).
10.3 The Supported Software (including the Subscription Software) is/are "commercial items" as that term is defined at 48 C.F.R. 2.101; consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Supported Software (including the Subscription Software) with only those rights that are set forth herein.
10.4 The Supported Software (including the Subscription Software) and any technical data relating thereto may not be exported, re-exported or used in any manner in violation of the laws, statutes, executive orders or regulations of the United States of America or of any country to which the same has been legally exported or re-exported. Each party agrees to comply with all applicable United States and foreign export law, regulations and license restrictions relating to the Supported Software and Subscription Software.
10.5 This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. The application of the UN Convention of International Sale of Goods to this Agreement is disclaimed in its entirety. Each party agrees to and hereby does irrevocably submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from or in connection with this Agreement.
10.6 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). Notwithstanding the foregoing, StreamNative may assign the entirety of its rights and obligations under this Agreement, without consent of the Customer, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.7 Together with any Order Forms, this 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. 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. The term "including" when used in this Agreement is deemed to mean "including without limitation."