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Cloud Services Master Subscription Agreement

THIS CLOUD SERVICES MASTER SUBSCRIPTION AGREEMENT, INCLUDING THE ACCOMPANYING CIRCONUS ORDERING DOCUMENT WHICH IS EXECUTED AS A STANDALONE ORDER FORM OR AGREED TO BE CLICKING ACCEPTANCE AS PART OF AN ONLINE ORDERING OR SIGN-UP PROCESS ON CIRCONUS’ WEBSITE (IN EITHER CASE, AN “ORDER”), FORM A LEGALLY BINDING CONTRACT (the “AGREEMENT”) BETWEEN THE ENTITY IDENTIFIED IN THE ORDER (THE “CUSTOMER”) AND CIRCONUS, INC. (“CIRCONUS”) WITH RESPECT TO CUSTOMER’S ACCESS AND USE OF CIRCONUS’ CLOUD SERVICE. BY USING CIRCONUS’ CLOUD SERVICE, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR BY ENTERING INTO AN ORDER WHICH REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. CUSTOMER MAY NOT ENTER INTO THE AGREEMENT, OR ACCESS CIRCONUS’ CLOUD SERVICE, FOR COMPETITIVE PURPOSES, INCLUDING IF IT IS A COMPETITOR OF CIRCONUS.

1. Applicability of this Agreement

This Agreement governs: (a) Customer’s rights of use of certain proprietary software program(s) which Circonus makes available to Customer on a subscription basis (the “Cloud Service”); (b) certain support to which Customer may be entitled in connection with its subscription to the Cloud Service (“Support”); and (c) if applicable, the provision by Circonus of professional services purchased by Customer pursuant to an Order (“Professional Services”). The particular Cloud Service which Circonus is making available to Customer hereunder is that Cloud Service which is specified in the applicable Order. Each Order, including all renewals thereof, shall be subject to, and deemed a part of, this Agreement. In the event of a conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement shall control unless the Order expressly modifies one or more specified provisions of this Agreement.

2. Access To and Use of the Cloud Service

  1. Rights of Use. During the Term and subject to the terms and restrictions set forth in this Agreement, Circonus grants Customer a non-exclusive, non-transferable, time-bounded, limited right (also referred to as a “subscription”) to access and use the Cloud Service (which includes all APIs which Circonus makes generally available as part of the Cloud Service), on a remote-access basis via the Internet, solely for the purposes authorized hereunder. Due to the evolving nature of technology and the inherent nature of the Cloud delivery model, the Cloud Service to which Customer is provided remote access hereunder shall be the version of such Cloud Service (as is updated from time to time by Circonus pursuant to Section 2(h) below) which is then generally hosted by Circonus (or its third-party hosting provider) for the then-active subscribers of such Cloud Service.
  2. Limited Free Edition. If Customer’s Order specifies that Customer has elected to utilize the Cloud Service on a “free edition” basis, Circonus shall make the Cloud Service available to Customer free of charge for the longer of a two (2) month period or the subscription period specified in the Order (the “Free Edition Period”). Customer’s use of the Cloud Service during the Free Edition Period is subject to the usage limitations set forth or referenced (such as via a link to a Circonus website page), in the applicable Order (“Free Edition Limitations”). Customer shall not be permitted or able to exceed the Free Edition Limitations. If, at any time, Customer wishes to purchase rights of use in the Cloud Service which exceed the Free Edition Limitations, it must enter into a new Order at applicable fees. For clarity, Section 4 (“Financial Terms”) of this Agreement shall not apply to any Free Edition Order.
  3. Use by Authorized Employees and Authorized Users. Customer may only grant access to the Cloud Service to its employees and third-party contractors: (i) who have a need to know and are authorized by Customer to use the Cloud Service on its behalf; (ii) who use the Cloud Service solely in support of Customer’s internal business operations (and not in support of the business operations, or otherwise for the benefit of, any individual, affiliate or other third-party); and (iii) who are bound in a legally enforceable manner to comply with the confidentiality, limited use, and other applicable provisions of this Agreement which are protective of the rights and interests of Circonus (“Authorized Users”). Customer shall be responsible and liable to ensure that each Authorized User complies with the terms of this Agreement and the Order. Additional metrics-based limitations regarding use of the Cloud Service (the “Usage Metric Limitation”) will apply to Customer as specified in an Order, and Customer will comply with all such Usage Metric Limitation.
  4. Ancillary Programs. Circonus makes certain versions of ancillary programs available to Customer for use within its computing environment in order to use with the Cloud Service (hereafter, “Ancillary Programs”, which may include programs referred to by Circonus as “brokers” and “agents”). Except to the extent otherwise provided in separate terms provided by Circonus along with an Ancillary Program, Customer is granted a non-exclusive, time-bounded limited right to install, access and use the Ancillary Program solely in conjunction with the Cloud Service, subject to all restrictions (such as usage restrictions, including Section 2(e) below), conditions, disclaimers, requirements, limitations (including scope and limitations of rights of use) and obligations applicable to the Cloud Service under this Agreement. Customer’s right to access and use the Ancillary Programs with the Cloud Service will terminate upon the earlier of the expiration or termination of this Agreement, the applicable Order or Customer’s subscription to use the Cloud Service. During the Term, Customer is responsible for downloading, installing, configuring and updating the Ancillary Programs (following the time when Updates are made available by Circonus pursuant to Section 2(h) below) in a timely and proper manner (including properly installing emergency security updates to the Ancillary Programs immediately) and for maintaining the security and confidentiality of such Ancillary Programs and its computing environment.

3. Term and Termination

  1. Term of Agreement. This Agreement shall remain in effect for each Order from the commencement of the Order (i.e., the time at which the parties have entered into the Order in a legally binding manner) until the Order is terminated or expires.
  2. Initial Term of Order and Renewals; Notice of Price Increases for Renewal Terms. Customer’s right to use the Cloud Service shall extend for an initial period which is specified in the applicable Order (the “Initial Term”). Thereafter, unless otherwise agreed upon by the parties in an applicable Order, the Order will renew for successive one (1) year periods (each a “Renewal Term”) unless either party provides written notice of its intention not to renew the Order at least sixty (60) days prior to the expiration of the then-current term (i.e., the Initial Term or Renewal Term, as applicable), in which event the Order will terminate at the end of the then current term. The Initial Term, along with any Renewal Term constitutes the “Term” of an Order If this Agreement, or an Order, is terminated prior to the natural expiration of its Term as authorized hereunder, then the Term shall be deemed reduced accordingly.
  3. Notwithstanding the above, a Free Edition Order (described in Section (2b) above) shall renew for successive one (1) month renewal terms unless either party provides written notice of its intention not to renew the Order at least fifteen (15) days prior to the expiration of the then-current term, in which event the Order will terminate at the end of the then-current term.
  4. Termination; Suspension. Either party may terminate this Agreement (including the applicable Order and any related SOW) upon written notice if the other party breaches any material provision of this Agreement or the Order and fails, within thirty (30) days after receipt of written notice of such breach, to cure the breach. Failure to make payment when due shall constitute a material breach hereof. Without limiting the above, Circonus may suspend Customer’s rights of use, or any Authorized User’s rights of use, in the Cloud Service: (i) if Customer is delinquent in its payment obligations for more than five (5) business days after Circonus notifies Customer in writing of the delinquency; (ii) if Customer, or any Authorized User, materially misuses the Cloud Service in violation of this Agreement or Customer’s (or any Authorized User’s) use of the Cloud Service is in violation of applicable law or presents an imminent security, intellectual property or liability risk.
  5. Effect of Termination; Survival. Upon termination or expiration of this Agreement or any Order, all rights and obligations will automatically terminate except as otherwise provided below. In addition, Customer will (at Circonus’ election) return or destroy all of Circonus’ proprietary materials, Ancillary Programs, Confidential Information and other property, and immediately cease all access to, and use of, the Cloud Service (the Cloud Service will be disabled by Circonus at this time, except for the limited rights described in the following sentence). For a period of thirty (30) days following termination or expiration of this Agreement or an applicable Order, Customer may access the Cloud Service solely for the limited purpose of exporting the Customer Data then stored by the Cloud Service. Such export of Customer Data shall be undertaken by Customer on a self-help basis through the use of an application programming interface which is made available by Circonus as part of the Cloud Service. We may delete your Customer Data at any point after this 30-day period without liability. The terms of this Agreement which relate to confidentiality, intellectual property ownership, indemnity, limitations and disclaimers of liability and payment obligations, along with terms which expressly or by their nature should reasonably survive termination, shall survive expiration or termination hereof.

4. Financial Terms.

  1. The applicable Order shall set forth (including via a reference to a link to a Circonus pricing page) the fees due from Customer to Circonus for the Initial Term. Unless otherwise expressly provided in an applicable Order, all fees (along with associated expenses) shall be invoiced in advance on or about the first day of the Initial Term or Renewal Term (as applicable) of each Order. All invoiced amounts shall be due and payable within thirty (30) days of issuance of the invoice. Invoiced amounts not paid by their due date shall be subject to a one percent (1%) per month interest fee, or the maximum amount permitted by applicable law, whichever is less. Prices do not include, and Customer shall promptly pay, all sales, use and other applicable taxes in connection with the Cloud Service or any other services or support provided, or any payments made, under any Order or this Agreement. All fees due throughout the Term of each Order are committed amounts which are non-cancelable and non-refundable.
  2. Except as otherwise agreed upon by the parties in an applicable Order, fees for each annual Renewal Term shall be automatically increased by an amount equal to five percent (5%) of the annualized fees due at the end of the expiring term (taking into account any and all fees for additional usage rights acquired during the expiring term pursuant to Section 4(c) below).
  3. In addition to the other terms and conditions of this Agreement, Customer’s use of the Cloud Service is subject to the Usage Metric Limitation specified in the Order. However, Customer shall be permitted to exceed its Usage Metric Limitation by up to five percent (5%) above such limitation (the “Cushion”) without incurring any additional fees. Customer shall not be permitted or able to exceed its Usage Metric Limitation by more than the Cushion without first notifying Circonus at the email address(es) specified in the applicable Order and then reaching mutual agreement with Circonus as to its new Usage Metric Limitation, which new limitation is documented by Circonus in an email to Customer. Customer will then be invoiced by Circonus for the additional fees due for the new Usage Metric Limitation based on the applicable pricing structure set forth or referenced (such as via a link to a Circonus website page), in the Order, with such additional fees pro-rated through the end of the then-current term of the Order (i.e., the Initial Term or Renewal Term, as applicable). All fees are subject to increase pursuant to Section 4(b) above. Customer’s new Usage Metric Limitation become the basis for calculating the subscription fees due for the upcoming Renewal Term.
  4. Fees are based on the subscription purchased and not actual usage, meaning Customer shall be obligated to pay the fees for its then-current Usage Metric Limitation regardless of whether it fully utilizes all such Usage Metrics. However, if Customer’s Usage Metric Limitation from its original purchase (referred to as the “Base Limitation”) was increased pursuant to Section 4(c) above, then, if Customer so requests in a writing provided to Circonus at least sixty (60) days prior to the commencement of the next Renewal Term, Customer may reduce its Usage Metric Limitation for such upcoming Renewal Term. However, in no event may Customer reduce its Usage Metric Limitation below its Base Limitation absent the mutual written agreement of the parties which is documented in an Amendment or new Order. If Customer provides sufficient notice as described above, Circonus’ invoice for the applicable Renewal Term will take into account the reduction in the Usage Metric Limitation (along with the 5% increase in fees for the Renewal Term) and Customer’s Usage Metric Limitation will be reduced accordingly. Circonus will document the adjusted Usage Metric Limitation in the relevant invoice and/or in an email.

5. WARRANTY, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.

Circonus warrants, for the Term of each Order, and conditioned on Customer’s use of the Cloud Service in compliance herewith, that the Cloud Service will perform in all material respects in accordance with its applicable Documentation. In the event that Circonus breaches the warranty above and is notified promptly thereof, then Circonus will exert commercially reasonable efforts thereafter to remedy the deficiency within a reasonable period of time. If unable to do so, then Customer’s sole and exclusive remedy will be to terminate the applicable Order and receive a refund of pre-paid subscription fees for the unused remainder of the then-current subscription term.

EXCEPT FOR THE WARRANTIES IN SECTION 5(a) ABOVE, CIRCONUS MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, AND EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, CIRCONUS EXPRESSLY DOES NOT WARRANT THAT THE CLOUD SERVICE OR ANY ANCILLARY PROGRAM, IN WHOLE OR IN PART, WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.

IN NO EVENT SHALL CIRCONUS OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST DATA OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE AGGREGATE LIABILITY OF CIRCONUS AND ITS SUPPLIERS UNDER THIS AGREEMENT SHALL APPLY SEPARATELY TO EACH ORDER AND SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE CLOUD SERVICE UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY CUSTOMER THEREUNDER. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION AND SHALL APPLY EVEN IF A PARTY SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF CUSTOMER RECEIVES THE CLOUD SERVICE FOR NO FEE FOR A FREE EDITION PERIOD OR ANY OTHER FREE PERIOD, THEN IT SHALL HAVE NO RIGHT TO RECOVERY OF ANY DAMAGES FROM CIRCONUS.

6. Indemnities.

  1. Indemnity by Circonus. Circonus will defend, indemnify and hold Customer harmless from and against any damages, losses, and costs that Customer incurs as a direct result of a claim brought by a third-party which alleges that the Cloud Service (in the form which Circonus provides them to Customer) infringes a third-party’s United States intellectual property right. As a condition of this indemnity, Customer must promptly notify Circonus of any such claim; grant Circonus sole control of the defense and settlement of any such claim; and reasonably cooperate with Circonus to facilitate its ability to settle or defend the claim. In the event of a covered infringement claim, Circonus shall use commercially reasonable efforts to obtain for Customer the right to continue using the Cloud Service, or, alternatively, to replace or modify the Cloud Service so that they are not infringing and materially similar. If these alternatives are not commercially reasonable, Circonus or Customer may, unless otherwise mutually agreed in writing by the parties, terminate the applicable Order and, if Customer has prepaid for any unused subscription periods for the applicable Cloud Service, refund that prepayment for the unused remainder of the then-current subscription term. Circonus shall have no indemnity obligations to Customer if the infringement claim is caused by Customer’s misuse of the Cloud Service, or Customer’s use of the Cloud Service in combination with unauthorized products or services. THESE ARE CIRCONUS’ EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
  2. Indemnities From Customer. Customer shall defend, indemnify, and hold Circonus, its affiliates and their employees, officers, directors and agents (collectively and individually the “Indemnified Parties) harmless from and against any loss, cost and expenses arising from or in connection with: (i) any claim that Customer Data or other materials or content provided or made available by Customer infringe any rights of any third-party or gives rise to defamation, invasion of privacy or other claim based on the nature or substance thereof; or (ii) any use of the Cloud Service by Customer in a manner contrary to or in violation of the terms and conditions (including usage restrictions) of this Agreement or an Order, or contrary to applicable law.

7. Miscellaneous.

  1. Confidentiality. “Confidential Information” is non-public information of a party which is provided to the other party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential. Confidential Information of Circonus includes the Cloud Service (including its underlying software) and its related Documentation and materials, and the terms and conditions of this Agreement. The party receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third-party unless such third-party is providing services or functions in support of a party’s exercise of its rights or performance of its obligations hereunder and is bound in writing by commercially reasonable confidentiality and limited use restrictions (additional obligations and conditions apply to Customer under Section 2(c) above with respect to its Authorized Users). The obligations to maintain the Confidential Information as confidential shall remain in place for so long as the applicable information is maintained as confidential. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, provided that, in such case, the recipient shall, to the extent reasonably practicable, give the other party prior written notice to afford the other party an opportunity to contest the disclosure. Customer shall maintain, and shall ensure that its Authorized Users maintain, the confidentiality of all account information that Circonus provides to Customer to enable access and use of the Cloud Service. Customer shall be fully responsible for any unauthorized disclosure or use of such account information.
  2. Use of Customer Data. Customer grants Circonus, its affiliates, employees and contractors (including Circonus’ third-party hosting provider) a worldwide license to use, host, reproduce, perform, display, backup, store, process, transmit and share Customer Data in order to support or facilitate the provision of the Cloud Service and Support and the performance of Circonus’ obligations hereunder, as well as for purposes which are otherwise authorized hereunder. Customer is responsible for obtaining all necessary rights and consents for Circonus to use, process and store all Customer Data for the purposes of providing the Cloud Service and meeting Circonus’ obligations under this Agreement and each Order. Notwithstanding anything to the contrary in this Agreement or any Order, Circonus may collect and analyze information and content collected and derived from Customer’s and its users’ use of the Cloud Service, including Customer Data, to determine usage volumes and trends, optimize support, improve and promote the Cloud Service, facilitate research and development, create other analyses, and for other business purposes (collectively, “Analytic Data”); provided that such Analytic Data shall be de-identified and aggregated such that it does not contain any personally identifiable information or any information which identifies Customer. Subject to the above conditions, the Analytic Data is owned by Circonus.
  3. Right to Use Name and Logo. Customer hereby grants Circonus the right to use and display Customer’s company or organization name and logos to identify it as a user of the Cloud Service for marketing purposes, including in customer lists (both in print and on its website), product brochures, press releases, case studies and presentations; provided that any press release shall be subject to Customer’s prior written consent, which consent shall not be unreasonably withheld or delayed. Circonus shall obtain Customer’s prior written consent for any other uses of Customer’s name and logos.
  4. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors, and nothing contained in this Agreement will be construed to create an association, trust, partnership, agency or joint venture between the parties. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
  5. Assignment; Delegation. Customer may not assign or transfer any part of this Agreement, including upon a change of control (which shall be deemed an assignment for purposes hereof), without the prior written consent of Circonus. Notwithstanding the above, Customer may assign this Agreement to a purchaser or successor in the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that: (i) the assignment is not to a competitor of Circonus; (ii) Customer provides written notice of such assignment to Circonus prior to the consummation thereof; (iii) Customer ensures that the assignee is bound by the terms and conditions of this Agreement and each Order (including all payment obligations); and (iv) absent an Amendment or new Order which is mutually entered into by the parties and covers applicable additional fees for expanded use, the use of the Cloud Service may not expand beyond the scope of use immediately prior to the assignment (i.e., such use may not expand beyond the use of the Cloud Service in support of Customer’s internal business operations prior to the assignment and the assignee may not use the Cloud Service to support or process any data of, or for, the assignee’s business other than Customer’s business prior to the assignment). Circonus may assign or transfer this Agreement, or any of its rights or obligations hereunder, in its discretion. In addition, Circonus may subcontract or delegate its performance obligations under this Agreement but shall remain responsible to Customer for the performance of such obligations by any such subcontractor.
  6. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions, failure of third-party equipment or networks, power outages or interruptions, hacking incidents and delays caused thereby, and other failures or delays caused by factors outside of the hosting environment from which the Cloud Service is made available.
  7. Compliance with Laws (Including Export Laws). Customer shall abide by all applicable laws and regulations in connection with its use of the Cloud Service. Without limiting the above, Customer shall comply with all applicable import, re-import, export and re-export control laws, orders and regulations of the United States and other applicable jurisdictions.
  8. Entire Agreement; Severability; Waiver. This Agreement is the entire agreement between Customer and Circonus with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between Customer and Circonus regarding that subject matter. No amendment to or modification of this Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is found to be void or unenforceable, the provision will be stricken or modified, and the remainder of this Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. All waivers must be in writing to be effective.
  9. Governing Law and Jurisdiction. The laws of the Commonwealth of Pennsylvania shall govern the interpretation and enforcement of this Agreement and any dispute arising out of or related hereto, without regard to its conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the courts in Chester County, Pennsylvania or with respect to any dispute arising out of or relating to this Agreement.
  10. Notices. All notices must be in writing and shall be sent by first class U.S. mail, a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service) or email. Notices to Circonus shall be sent to the address set forth in the opening paragraph of this Agreement and, for each notice, a copy shall also be sent to Circonus’ CFO. Email notices to Circonus shall be sent to [email protected] and such additional email address (if any) provided for notices in the applicable Order. Notices to Customer may be sent to the address set forth in the opening paragraph of this Agreement or by email to: (i) an individual whose email address is provided for receipt of notices in the applicable Order; or (ii) such other individual who provided his/her email address to Circonus as an administrative user of the Cloud Service for Customer. Notices shall be deemed given upon receipt thereof. However, notices delivered by mail or courier shall be deemed received on the date shown on the mail carrier’s or courier’s confirmation of delivery. Any notice of change in address shall also be given in the manner set forth above.
  11. Government. The Cloud Service may not be used by any governmental agency or body absent the parties entering into a separate amendment or agreement in advance of any such use.
  12. Audit. Upon reasonable notice, Circonus (or its designated third-party auditor) shall have the right to audit, and to request information from Customer regarding, Customer’s use of the Cloud Service in order to review and ensure past and ongoing compliance with this Agreement and each Order. Customer shall cooperate with such requests by providing requested information and facilitating remote and onsite audits in a prompt manner.
  13. Contract for Services. The parties agree that the provisions of the Uniform Commercial Code (UCC) and the Uniform Computer Information Transaction Act (UCITA) shall not apply hereto. If Customer is located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply hereto.