These Terms and Conditions (the “Terms”) apply to the Services provided by Teridion, Inc. or Teridion Technologies, LTD (“Teridion”) as set forth in the Order Form signed by Customer and Teridion. Capitalized terms utilized but not defined in the Terms are defined in the Order Form.
- SERVICES. The Order Form sets forth (a) the services to be provided by Teridion to Customer (“Services”), (b) the period during which Customer has rights to access and use the Services (“Subscription Period”), and (c) the applicable fees payable by Customer for the Services (“Subscription Fees”).Teridion grants to Customer a limited, non-transferable, non-exclusive and non-sublicensable right and license, during the Subscription Period, to use the Services solely for Customer’s internal business purposes. Upon receipt of the Subscription Fee, Teridion will provide Customer access to Teridion’s Services.
- SUPPORT AND SERVICE LEVEL STANDARDS. During the Subscription Period, Teridion will use commercially reasonable efforts to: (a) provide the Services and (b) meet service level standards as described in the Teridion Services and Service Levels available at http://www.teridion.com/legal (which are incorporated herein by reference).RESTRICTIONS. Customer shall not conduct, nor shall Customer allow, assist, authorize or encourage any third party to conduct any act that may be unlawful, defamatory, libelous, threatening, pornographic, harmful, hateful, racial, violent, offensive or otherwise inappropriate, including by way of example: (i) using content which contains viruses, worms, Trojan horses or other harmful or destructive code which are unwanted threats; (iii) engaging in any unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable activity; (v) infringing any third party’s rights, including intellectual property rights, publicity rights and privacy rights. Teridion may prevent any use of the Services that, in its sole judgment, violates this Terms or any applicable law or regulation or is otherwise inappropriate. Customer acknowledges that the use of the Services in certain territories may be subject to local regulation and applicable local laws. Customer represents and warrants that prior to any use of the Services, and in all times during the Subscription Period, Customer will conduct all of the required examinations and, in any event, Customer will act in full compliance with the applicable laws and regulation in such territories.
- FEES AND PAYMENT TERMS Customer will pay to Teridion or, if Customer purchases Services from an authorized reseller of Teridion, to such authorized reseller, the Subscription Fees, which are exclusive of any taxes. The Subscription Fees include the following (a) the fixed annual or monthly payment that is due and payable in advance, and (b) any additional traffic fee, which is due and payable on a monthly basis in arrears. Unless stated otherwise in any applicable Order Form, all payments shall be made in U.S. Dollars and by wire transfer to the bank specified on the Teridion Invoice. Payment shall be made within 30 from the date of the invoice. Notwithstanding any terms to the contrary: (a) Teridion, at its sole discretion, may modify its pricing during any Subscription Period, and such modifications will be effective as of the directly subsequent Subscription Period, provided such changes were made at least thirty (30) days before the end of such SubscriptionPeriod, and (b) Teridion will not issue refunds for Subscription Fees paid in advance. Customer is responsible for, and will pay all applicable VAT, sales and similar taxes which may apply to the Services.
- TERM, TERMINATION AND EFFECTS OF TERMINATION. Unless agreed otherwise by the parties in any applicable Order Form, these Terms will remain in effect during the Subscription Period, and thereafter will automatically renew for successive periods equivalent to the Subscription Period (each a “Renewal Period”, and together with the Subscription Period, the “Term”) unless either party terminates this Agreement with no less than 60 days advance written notice to the other party prior to the end of the then-current Subscription Period or Renewal Period. Either party may terminate the Terms for cause if the other party breaches the Terms and does not remedy such breach within 30 days after receiving written notice of such breach from the other party.Teridion may suspend use of the Services (or any portion thereof) without liability if required by law. Upon any termination of the Terms, (a) all rights and licenses granted to Customer under the Terms will immediately terminate, and (b) Customer will immediately pay to Teridion all amounts due and payable up to the effective date of termination. Sections 4, 5, 6, 7, 8, 9 and 10 will survive any termination of the Terms.
- CONFIDENTIALITY. During the Term hereof, each party may have access to certain non- public proprietary, confidential or trade secret information or data of the other party, regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information”). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; or (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives”) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief.
- INTELLECTUAL PROPERTY RIGHTS. Integration, design, development, operational and/or other professional services (if requested and agreed upon by the parties) will be set forth in a separate mutually agreed upon Order Form. Any feedback Customer may provide to Teridion regarding the Services constitutes Teridion’s Confidential Information and may not be disclosed to any third party, and Teridion is free to use and otherwise exploit such feedback without obligation or restriction of any kind. As between Customer and Teridion, Customer owns all right, title and interest in and to any data and information provided by Customer to Teridion or to which Teridion has access as a result of performing the Services (“Customer Material”), and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (“Intellectual Property Rights”) embodied in the Customer Material (collectively, the “Customer IP”). Customer grants to Teridion a non-exclusive right and license during the Subscription Period(s), to access and use the Customer Material in order to provide the Services to Customer. Teridion will not use the Customer Material for any other purpose, and will not disclose any Customer Material to any third party without Customer’s consent. Customer represents and warrants that Customer owns all rights in and to the Customer Material or has the valid legal right to grant Teridion access to and use of the Customer Material in order to provide the Services. Teridion owns all right, title and interest in and to the Services (and any and all modifications, improvements or derivative works of the Services), and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Teridion IP”). Each party reserves all rights not expressly granted herein, and neither party grants a license to the other, whether by implication, estoppel or otherwise, except as expressly set forth in the Terms. Customer may not (a) modify, disclose, alter, translate or create derivative works of the Services (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof), (c) disassemble, decompile or reverse engineer the software components of the Services (except to the extent and for the express purposes authorized by applicable laws), (d) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, (e) copy, frame or mirror any part of the Services, (f) knowingly interfere with or disrupt the integrity or performance of the Services, (g) attempt to gain unauthorized access to the Services or their related systems or networks, (h) disclose to any third party any performance information or analysis relating to the Services, (i) disclose to any third party any terms or conditions of the Terms (including, the Order Form), (j) develop, promote, market, offer to sell, sell, license or distribute, directly or indirectly, a product or service that competes with the Services (or any portion thereof), or (k) knowingly permit or otherwise allow anyone to do any of the foregoing.
- PRIVACY AND DATA PROTECTION For the purpose of this section: (a) “Customer Data” means any data that is provided by Customer to Teridion through the Services or processed by Teridion on behalf of Customer; (b) “Personal Data” means any data that can or may be used whether alone or in combination with other information in order to identify a single person. Accordingly, Personal Data could include data that directly identifies an individual and data that can single out an individual. (c) “Data Protection Legislation” means all data protection and privacy laws applicable to the processing of Personal Data. Customer acknowledges that Teridion’s access to Customer Data is limited to the metadata associated with Teridion’s routing and transmission of encrypted Customer Data. Customer acknowledges that Teridion will have no access to the content of the traffic it routes, and will not access or store the contents of any traffic, including any Personal Data, it routes. Customer will be solely responsible to comply with any obligations under the applicable Data Protection Legislation. Customer undertakes and agrees that all Customer Data which is processed by Teridion on behalf of Customer, is collected, processed and transferred by the Customer to Teridion in accordance with the applicable Data Protection Legislation. Customer further undertakes that Customer Data has been collected and transferred by it fairly and lawfully, pursuant to any applicable Data Protection Legislation, and that it has informed data subjects of the processing and transfer of Personal Data and obtained the relevant consent thereto. In addition, Customer warrants and undertakes that any Customer Data processed by Teridion on behalf of Customer will not include any spam, viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content, messages or files, or content prohibited by local laws or regulations. Teridion hereby agrees that during the Subscription Period, it shall comply with the Security Requirements set forth in Exhibit A hereto.
- DISCLAIMER. EXCEPT FOR THE SERVICE LEVEL STANDARDS, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND TERIDION DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TERIDION KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND WARRANTIES OF NON- INFRINGEMENT OR CONDITION OF TITLE. TERIDION DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- LIMITATION OF LIABILITY. IN NO EVENT WILL TERIDION BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THE TERMS, THE TERIDION IP OR ANY THIRD-PARTY SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF TERIDIONHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TERIDION’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE TERMS EXCEED THE SUBSCRIPTION FEES PAID TO TERIDION FOR THE SUBSCRIPTION PERIOD DURING WHICH THE DAMAGES FIRST AROSE. NOTWITHSTANDING ANY TERMS TO THE CONTRARY, (A) SERVICE CREDITS ARE THE SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE LEVEL STANDARDS FAILURE, AND (B) TERIDION WILL NOT BE LIABLE FOR ANY DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY DATA UNLESS SUCH DISCLOSURE, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS SOLELY AND DIRECTLY RESULTS FROM TERIDION’S FAILURE TO MEET THE TERIDION SECURITY REQUIREMENTS. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THESE TERMS.MISCELLANEOUS. The Terms (including the Order Form(s), Exhibits, and all other terms and conditions incorporated into the Terms by reference) set forth the entire agreement between Customer and Teridion with regard to the Services and supersedes all prior agreements, understandings, statements, proposals, and representations, whether written or oral, between the parties. The Terms will be governed, construed and enforced in accordance with, the laws of the State of California, excluding its conflict of laws rules to the extent such rules apply. The parties agree that any and all disputes arising out of or in connection with these terms shall be resolved exclusively in San Francisco County, California. Customer acknowledges and agrees that Teridion may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Services and any individuals or entities that use the Services. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Customer must not assign, delegate or transfer (by sale, merger, operation of law or otherwise) the Terms or any right, title, interest or obligation hereunder without Teridion’s prior written consent. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. Teridion may assign the Terms without Customer’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Except for payments due under the Terms, neither party will be responsible for any failure to perform or delay attributable, in whole or in part, to any cause beyond its reasonable control, including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), disruption of telecommunications, interruption or termination of service by any service providers, or any malicious or unlawful acts of any third party (each a “Force Majeure Event”). Customer consents to Teridion’s use of Customer’s name and logo on Teridion’s site and marketing materials identifying Customer as a user of the Services, and the issuance of a press release by Teridion identifying Customer as a user of the Services. The Terms may only be amended, modified, or supplemented by an instrument in writing specifically identifying the Terms and signed by the authorized representatives of each party. If any provision of the Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith a modification to the Terms to affect the parties’ original intent as closely as possible.
- Screening – Teridion will conduct appropriate screening of new employees. Teridion will require all personnel to sign confidentiality agreements.
- Who can access the Teridion System – Teridion will allow access to the system used to provide the Services only by Teridion employees who are members of the DevOps, Engineering and Sales Engineering teams of Teridion (collectively, the ”Engineering Teams”). The Engineering teams are responsible for the 24×7 operational overlay networks of the Customer. Part of the training for each engineer includes deep understanding of the strict security requirements of Teridion network as a whole and the Teridion system components in particular as well as obligations of confidentiality regarding Customer’s Confidential Information, including Customer Data.
- Data encryption – Customer Data passing between the nodes of Teridion network used to provide the Services and the Teridion Curated Routing System is encrypted using cryptographic algorithms.
- Security Breach.
- Definition of Security Breach. “Security Breach” means the actual or suspected unauthorizedacquisition,destruction, loss, misappropriation or access to, disclosure, use or modification of the Customer Data.
- Notification of Security Breach. Teridion will notify Customer in accordance with and as permitted by applicable law of any actual or suspected security breach of any Customer Data following Teridion’s discovery of a Security Breach.
- Investigation of Security Breach. Teridion will:
- investigate each Security Breach in collaboration with affected customer(s) as appropriate;
- take steps to limit, stop or otherwise remedy the Security Breach; and
- implement appropriate internal technical and procedural controls to reduce the likelihood of a recurrence of a Security Breach.