Subscription Services Agreement
Last Updated: Mar 14, 2022
SUBSCRIPTION SERVICES AGREEMENT
LAST UPDATED DATE: MARCH 14, 2022
This Subscription Services Agreement (the “Agreement”) is a legal agreement by and between FireHydrant, Inc. (“FireHydrant”), and Customer (as defined below). This Agreement describes the terms and conditions that apply to your use of the website located at www.firehydrant.io (the “Website”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SERVICE ORDER OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) ANY OF THE SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (1) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, FIREHYDRANT, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICES.
The parties agree as follows:
BACKGROUND. FireHydrant has developed certain software, a website, and a platform, which it provides as part of its Services (defined below). Customer wishes to utilize the Services, and FireHydrant desires to make the Services available to Customer, subject to the following terms and conditions.
Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
2.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users (as defined below) to access the Services.
2.2 “Aggregated Data” means data relating to the Services or FireHydrant’s other products and services that is aggregated in such a way that it is not associated with Customer.
2.3 “Authorized Users” means any individual who is an employee of Customer or such other person or entity as may be authorized by the Customer, to access the Services pursuant to Customer’s rights under this Agreement.
2.4 “Beta Features” means any features of the FireHydrant Platform or Software that classified as “beta” and that are made available to Customer.
2.5 “Customer Data” means: (1) non-public data uploaded or otherwise provided by Customer to the Services; and (2) data collected by the Software installed on Customer Systems and transmitted to FireHydrant. “Customer Data” does not include Aggregated Data, even if such Aggregated Data was generated based on, or was otherwise derived from, Customer Data.
2.6 “Customer Systems” means all computer systems, computer networks, servers, cloud services, workstations, devices, and equipment owned by, or operated on behalf of, Customer.
2.7 “Documentation” means the technical materials provided by FireHydrant to Customer in hard copy or electronic form describing the use and operation of the Software.
2.8 “Error” means a reproducible failure of the FireHydrant Platform and/or Software to substantially conform to the Documentation.
2.9 “FireHydrant Platform” means FireHydrant’s web-based software platform accessed via the Website that enables Authorized Users to monitor and respond to incidents affecting Customer’s products and services (including site outages and data security incidents), including any Beta Features of the FireHydrant Platform.
2.10 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
2.11 “Services” means FireHydrant’s provision of: (1) the Website; (2) the FireHydrant Platform; (3) the Software; and (4) the Support Services (as defined below).
2.12 “Software” means the software provided via the Website to Customer in object code form and installed by or on behalf of Customer on Customer Systems. “Software” includes downloads of: (1) any new features or enhancements that FireHydrant makes generally available to its customers, (2) any Beta Features of the Software, and (3) any associated user interfaces and related technology that FireHydrant makes available pursuant to this Agreement.
2.13 “Subscription Fee” means the applicable fees for the Services associated with your account.
PROVISION OF SERVICES.
3.1 FireHydrant Platform and Software Access. In order to access the Services, Customer or its Authorized User will create an account on www.firehydrant.io and provide certain information about Customer as prompted by FireHydrant. Certain features of the services will require you to pay a Subscription Fee. The Subscription Fee is based on the tiered category of Service you choose when creating an account or updating your account status. Customer represents and warrants that: (i) all required registration information submitted is true and accurate; and (ii) it will maintain and promptly update such information to keep it true and accurate. If Customer or Authorized User provide any information that is untrue, inaccurate, not current or incomplete, or FireHydrant has reasonable grounds to suspect that any information provided is untrue, inaccurate, not current or incomplete, FireHydrant has the right to suspend or terminate access to the Services and refuse any and all current or future use of the Services (or any portion thereof). FireHydrant reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. Customer and its Authorized Users agree not to create an account or use the Services if they have been previously removed by FireHydrant, or if they have been previously banned from any of the Services.
Authorized Users’ Access to Services. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. User IDs cannot be shared or used by more than one Authorized User at a time. If a Customer wishes to add additional Authorized Users, Customer may make such request through the account. Upon acceptance by FireHydrant of such request, FireHydrant shall make the Service(s) available to the additional Authorized Users. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify FireHydrant promptly of any such unauthorized use known to Customer.
Customer Responsibility to Authorized Users. It shall be Customer’s sole responsibility to perform those specific services that are necessary to establish Customer’s or Authorized Users’ use of the Software, Documentation, and Services. This includes but is not limited to: (a) providing employee lists to setup Authorized User accounts, and (b) designating Authorized Users to participate in training.
No Subsequent Registration. If Customer or its Authorized Users’ registration(s) with, or ability to access, the Services is discontinued by FireHydrant due to a violation of any portion of the Agreement, then Customer and its Authorized Users agree that they shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and Customer and its Authorized Users acknowledge that they will not be entitled to receive a refund for fees related to those Services to which access has been terminated. In the event Customer or its Authorized User violates the foregoing, FireHydrant reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to Customer or its Authorized Users.
3.2 Support Services. Subject to Customer’s payment of all fees and compliance with this Agreement, FireHydrant shall provide support relating to usage of the Services via its support email (email@example.com), Monday – Friday from 9:00am – 5:00pm ET, with the exclusion of FireHydrant’s standard observed company holidays (the “Support Services”).
3.3 Responsibility for Software and Content Hosting. FireHydrant shall, at its own expense, provide for the hosting of the Software which is accessible as part of the Services, provided that nothing herein shall be construed to require FireHydrant to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Services.
3.4 Third-Party Licenses. The Software may include software or other materials that are owned by individuals other than FireHydrant and that are provided to Customer on terms that are in addition to those contained in this Agreement (“Third-Party Licenses”). By using the Software, Customer agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
3.5 Subcontractors. FireHydrant may use subcontractors or other third parties to perform its obligations under this Agreement, but FireHydrant will remain responsible for all such obligations.
3.6 Security Features. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is not expressly permitted under this Agreement. Customer or its Authorized Users shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any of those copy protection or security features.
3.7 Equipment. Customer is responsible for obtaining and maintaining the Customer Systems and any equipment or ancillary services needed to connect to, access, or otherwise use the FireHydrant Platform, including modems, hardware, servers, software, operating systems, networking equipment, and web servers. Customer is responsible for maintaining the security of such equipment. FireHydrant is not responsible for any issues or delays in Services caused by the failure of any such equipment.
4.1 FireHydrant Platform License Grant. Subject to Customer’s payment of all fees and compliance with this Agreement, FireHydrant grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable right during the term to use the FireHydrant Platform by and through its Authorized Users in support of Customer’s business operations and in accordance with any Service limitations.
4.2 Software License Grant. Subject to Customer’s payment of all fees and compliance with this Agreement, FireHydrant grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable license during the term to: (1) download and install one copy of the Software on Customer Systems; (2) use the Software solely for Customer’s internal business operations; and (3) make a reasonable number of copies of the Software solely for testing or backup purposes.
4.3 Documentation License Grant. Subject to the terms and conditions of this Agreement, FireHydrant grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable license during the term, solely for Customer’s internal business purposes and in accordance with this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services.
4.4 Limitations. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the FireHydrant Platform, Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the FireHydrant Platform, Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the FireHydrant Platform, Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the FireHydrant Platform, Software or Documentation except as expressly allowed under this Agreement; (f) circumvent or disable any security or other technological features or measures of the FireHydrant Platform or Software; (g) remove any proprietary notices or labels from the FireHydrant Platform, Software, or Documentation, or (h) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Customer’s jurisdiction require FireHydrant to give Customer the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Customer must first request such information from FireHydrant and FireHydrant may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that FireHydrant’s and its suppliers’ proprietary rights in the source code for the Software are protected. Customer acknowledges and agrees that the Services, Software, and Documentation will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
4.5 Ownership. The Services, FireHydrant’s Platform, Software, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of FireHydrant and its suppliers. All rights in and to the Services, Software and Documentation not expressly granted to Customer in this Agreement are reserved by FireHydrant and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Software, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
4.6 Feedback. If Customer gives FireHydrant feedback, comments, or suggestions concerning the FireHydrant Platform, Software, Documentation, Aggregated Data, or Services (collectively, “Feedback”), Customer hereby assigns to FireHydrant all right, title, and interest in and to the Feedback, and FireHydrant is free to use the Feedback without payment, attribution, or restriction.
5.1 Ownership. Customer owns all right, title, and interest in and to the Customer Data. No ownership rights in the Customer Data are transferred to FireHydrant. FireHydrant does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.
5.3 Collection of Data. FireHydrant may collect and analyze Customer Data and other information relating to the provision, use, and performance of various aspects of the FireHydrant Platform and related systems and technologies (including Aggregated Data and information provided by third-party analytical tools). FireHydrant may analyze, copy, process, collect, and/or reproduce Customer Data for the purpose of complying with a regulatory inquiry or judicial action of a governmental body. FireHydrant shall: (1) use reasonable efforts to limit the use and/or disclosure of Customer Data to what is required by the scope of the inquiry or action; and (2) notify Customer, to the extent permitted by the inquiry or action, of the disclosure of Customer Data.
5.4 Backups. In the ordinary course of its business, FireHydrant performs back-ups of Customer Data; however, FireHydrant is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data.
5.6 Data Warranty. Customer represents and warrants to FireHydrant that: (1) Customer owns the Customer Data, or has the necessary licenses, rights, consents, and permissions to authorize FireHydrant to use the Customer Data in accordance with this Agreement; (2) Customer Data and the use of Customer Data as contemplated by this Agreement does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (b) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (c) cause FireHydrant to violate any law or regulation; (d) be deceptive, obscene, pornographic or unlawful; (e) contain any viruses, worms or other malicious computer programming codes intended to damage FireHydrant’s system or data; and (3) Customer will use the FireHydrant Platform and Software in compliance with the Documentation, any instructions provided by FireHydrant, and applicable law. FireHydrant may monitor Customer’s use of the FireHydrant Platform and may prohibit any use of the FireHydrant Platform it believes may be in violation of the foregoing warranties or applicable law.
5.7 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order the access the Services. Customer shall have the ability to export Customer Data out of the Services and is encouraged to make its own back-ups of the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
THIRD PARTY SERVICES.
6.1 Generally. In its delivery of the Services, FireHydrant may make available third-party products or services, including integrations (“Third-Party Services”) that Customer may elect to use. Any election by Customer to use such Third-Party Services and any exchange of data with any Third-Party Service is solely between Customer and the applicable third-party provider, and is subject to the Third-Party Services’ applicable terms. FireHydrant does not warrant or provide support for Third-Party Services, whether or not they are designated by FireHydrant as “recommended,” “certified,” or otherwise. Please see a list of our Third-Party Services that are subprocessors here.
6.2 Interoperability. The FireHydrant Platform contains features designed to interoperate with third party software or products. To use such features, Customer may be required to obtain access to such software or products from the applicable providers, and may be required to grant FireHydrant access to Customer’s accounts on such software or products (currently solely for Atlassian Jira software). FireHydrant does not guarantee the continued success or such integration or the availability of such FireHydrant Platform features, and may cease providing them without providing Customer any refund, credit, or other compensation, including if the applicable third party makes such software or products unavailable for integration.
6.4 Third-Party Links. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When Customer or its Authorized Users click on a link to a Third-Party Website or Third-Party Application, FireHydrant may not warn the user that it has left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of FireHydrant. FireHydrant is not responsible for any Third-Party Websites or Third-Party Applications. FireHydrant provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. Customer and its Authorized Users understand and agree that use of all links in Third-Party Websites or Third-Party Applications is at their own risk. When leaving the Services, this Agreement and FireHydrant’s policies no longer govern.
FEES AND EXPENSES; PAYMENTS.
7.1 Fees. Upon registration, Customer or its Authorized Users may have the option to choose a tiered category of service. The fee amount will depend upon the tier selected. Customer or its Authorized User may change the tiered category of service in the registered accounts settings page. In consideration for the access rights granted to Customer and the services performed by FireHydrant under this Agreement, Customer will pay to FireHydrant the fees for the Services elected. In the event that Customer wishes to increase the number of Authorized Users beyond the maximum number of Authorized Users for which fees have been paid, Customer shall be required to pay additional fees associated with the increased number of Authorized Users, prorated for the remainder of the term. You will be responsible for payment of the Subscription Fees at the time you create your account and select your annual package. Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and FireHydrant for the Services until FireHydrant accepts your order by a confirmatory e-mail or other appropriate means of communication. FireHydrant shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
7.2 Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on FireHydrant’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Services, or the license of the Software to Customer. Customer will make all payments of fees to FireHydrant free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to FireHydrant will be Customer’s sole responsibility, and Customer will provide FireHydrant with official receipts issued by the appropriate taxing authority, or such other evidence as FireHydrant may reasonably request, to establish that such taxes have been paid. Customer shall indemnify and defend FireHydrant in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
7.3 Expenses. Customer shall reimburse FireHydrant for all costs, pre-approved by Customer, including FireHydrant’s reasonable out-of-pocket (including travel and living) expenses incurred in performing its obligations hereunder. All costs and expenses incurred by Customer in connection herewith are the sole responsibility of Customer.
7.4 Interest. Any amounts not paid when due shall bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less. Customer will permit FireHydrant or its representatives to review Customer’s relevant records and inspect Customer’s facilities to ensure compliance with this Agreement.
7.5 Audit. FireHydrant will give Customer at least ten (10) days’ advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of fees, Customer shall promptly pay FireHydrant such underpaid amount, together with interest thereon at the rate specified in this section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Customer shall also pay FireHydrant for FireHydrant’s expenses associated with such audit.
WARRANTIES AND DISCLAIMERS.
8.1 Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
8.2 Limited Warranty. FireHydrant warrants to Customer that the FireHydrant Platform and/or the Software will operate free from Errors during the term of the Agreement. Provided that Customer notifies FireHydrant in writing of any breach of the foregoing warranty during the term hereof, FireHydrant shall, as Customer’s sole and exclusive remedy, provide the support set forth this Agreement. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction.
8.3 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF CUSTOMER AND ITS AUTHORIZED USERS ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS,” AND FIREHYDRANT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY FIREHYDRANT. FIREHYDRANT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
8.4 Beta Features. FireHydrant may make Beta Features available to Customer. FireHydrant makes no representations that any Beta Features will be made generally available and FireHydrant may discontinue or modify any Beta Feature without notice. Beta Features are provided “AS IS,” and Customer’s use of a Beta Feature is at Customer’s sole risk.
LIMITATION OF LIABILITY.
9.1 Exclusions. FireHydrant shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or Authorized Users’ use of any version of the Software or the Services other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by FireHydrant; (d) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Services, Software, or Documentation; (e) problems or Errors caused by Customer’s, Authorized Users’, or other third party’s products, services or equipment; or (f) modification, amendment, revision, or change to the Software or the Services by any party other than FireHydrant or FireHydrant’s authorized representatives. Any use of or reliance on data or data output contained in the Software or the Services is Customer’s or Authorized User’s sole responsibility.
9.2 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, FIREHYDRANT OR ITS SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH FIREHYDRANT’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF FIREHYDRANT HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
9.3 Amount of Damages. THE MAXIMUM LIABILITY OF FIREHYDRANT ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO FIREHYDRANT DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL FIREHYDRANT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE FIREHYDRANT’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF FIREHYDRANT OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
9.4 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of FireHydrant.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to FireHydrant). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11.1 By Customer. Customer will indemnify and hold harmless, at its own expense, FireHydrant and its affiliates, employees, and agents (collectively, “FireHydrant’s Entities”) from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising out of or relating to Customer’s breach or alleged breach of the subsections titled Warranty and Disclaimers. Customer may not agree to settle any such claim without FireHydrant’s express prior written consent.
11.2 Procedure. Customer’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) FireHydrant’s Entities shall promptly notify the Customer in writing of any threatened or actual claim or suit; (b) Customer shall have sole control of the defense or settlement of any claim or suit; and (c) FireHydrant’s Entities shall cooperate with Customer to facilitate the settlement or defense of any claim or suit.
TERM AND TERMINATION.
12.1 Term. This Agreement commences on the Last Update Date listed above and will continue until terminated in accordance with this Agreement. By signing up (including electronically) for a subscription, and paying a Subscription Fee, you are subscribing to the Services for the applicable subscription term, usually either a month or a year (the “Initial Subscription Period”). The Initial Subscription Period will be automatically renewed for additional periods of the same duration as the Initial Term at FireHydrant’s then-current fee for such Services, unless you opt out of the automatic renewal period upon thirty (30) days’ prior written notice (each a “Renewal Subscription Period”, and collectively the Initial Service Term and all Renewal Subscription Period, the “Subscription Period”). THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD, INCLUDING FOR ADDED SEATS, UNLESS YOU CANCEL YOUR SUBSCRIPTION BY PROVIDING THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE OF NON-RENEWAL TO FIREHYDRANT. If you add additional seats to your current subscription, the term for such additional seats shall end at the same time as the Subscription Period (as renewed), and the Subscription Fees for such seats shall be prorated accordingly.
12.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, FireHydrant shall discontinue all use of Customer Data and destroy all copies of Customer Data in its possession. The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
12.4 Post-Termination Obligations. Upon any expiration or termination of this Agreement, FireHydrant shall make all Customer Data then held by FireHydrant available to Customer for electronic retrieval for a period of 30 days. After such period, FireHydrant may, but is not obligated to, delete any stored Customer Data. If Customer terminates this Agreement for material breach, Customer shall pay in full for any terminated Services up to and including the last day on which access to the Services are provided. If this Agreement expires or is terminated for any other reason: (1) FireHydrant will not refund Customer any fees paid in advance of such expiration or termination; and (2) within ten days after such expiration or termination, Customer shall pay FireHydrant all remaining fees owed under any terminated Services so that FireHydrant is paid the full annual amount agreed to at the commencement of such Service.
13.1 Compliance with Applicable Law. Customer shall comply with all applicable law in connection with Customer’s activities under this Agreement, including applicable export laws. It is Customer’s responsibility to obtain any required licenses to export and re-export the Software. The Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall not acquire for, ship, transfer, or re-export the Software, directly or indirectly, to proscribed or embargoed countries or their nationals or persons on the Table of Denial Orders, the Entity List, or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
13.2 Governing Law and Venue. This Agreement is governed by New York state laws, without reference to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York County, New York. The parties submit to the jurisdiction in those courts.
13.3 U.S. Government Restricted Rights. The Software is “commercial computer software,” as that term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights in the FireHydrant Platform, Software, and Documentation as are granted to all other end users under license, in accordance with: (1) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors; or (2) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
13.4 Nature of Rights. The licenses granted under this Agreement are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee shall have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
13.5 Injunctive Relief. If either party breaches Sections 4 (Intellectual Property) or 10 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it at law or in equity, seek injunctive or other equitable relief in response to any such breach.
13.6 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.7 Publicity. FireHydrant may publicly list Customer as a customer of FireHydrant and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communications with existing or potential FireHydrant customers, resellers, or investors.
13.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
13.9 Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Services, Software, and Documentation contain valuable trade secrets and proprietary information of FireHydrant, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Customer of its obligations with respect to Intellectual Property Rights of FireHydrant will constitute immediate, irreparable harm to FireHydrant for which monetary damages would be an inadequate remedy. In such case, FireHydrant will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive
13.10 Assignment. Customer may not assign this Agreement or delegate its performance without FireHydrant’s prior written consent, and any attempt to do so is void. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
13.11 Force Majeure. FireHydrant will not be liable for any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond FireHydrant’s reasonable control, so long as FireHydrant uses reasonable efforts to avoid or remove those causes of delay or non-performance.
13.12 Relationship. Customer’s relationship to FireHydrant is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of FireHydrant.
13.13 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
13.14 Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally-recognized courier service; or (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested).
13.15 Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
13.17 Further Assurances. Each party shall execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.