IMPORTANT - PLEASE READ THESE DASERA GENERAL TERMS CAREFULLY BEFORE ACCESSING OR USING THE DASERA SOLUTIONS (as defined below) OF DASERA, INC. (“Dasera”).
THESE GENERAL TERMS AND ANY ORDER FORM(S) (as defined below) (THESE GENERAL TERMS AS MAY BE MODIFIED PURSUANT TO SECTION 14.5 AND TOGETHER WITH THE ORDER FORM(S), these “General Terms”) GOVERN THE ACCESS AND USE OF THE DASERA SOLUTIONS. PLEASE READ THESE GENERAL TERMS CAREFULLY. BY CHECKING THE BOX NEXT TO “BY CHECKING THIS BOX, I AGREE WITH DASERA’S GENERAL TERMS” ON YOUR ACCOUNT ACTIVATION PAGE, YOU:
- AGREE ON BEHALF OF YOURSELF AND THE ENTITY THAT EMPLOYS OR ENGAGES YOU (“Customer”) THAT THESE GENERAL TERMS GOVERN CUSTOMER’S AND YOUR ACCESS AND USE OF THE DASERA SOLUTIONS,
- AGREE THAT THESE GENERAL TERMS ARE BINDING UPON AND ENFORCEABLE AGAINST CUSTOMER AND YOU, AND
- REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO MAKE THE ABOVE AGREEMENTS ON BEHALF OF CUSTOMER.
IF CUSTOMER OR YOU DO NOT AGREE TO THESE GENERAL TERMS, CUSTOMER AND YOU SHALL NOT HAVE ANY RIGHT TO ACCESS OR USE THE DASERA SOLUTIONS, AND SHALL NOT ACCESS OR USE THE DASERA SOLUTIONS.
1. Definitions. A capitalized term not otherwise defined in these General Terms shall have the following meaning:
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, but only for so long as such control exists, and “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Authorized User” means a natural person who is an employee or contractor of Customer or its Affiliates, is authorized by Customer to use the Dasera Solutions, and is not a competitor of Dasera.
- “Customer Data” means data and information provided to, accessed by, or processed with, the Dasera Solutions.
- “Dasera Solutions” mean Dasera’s data security solutions made available through a cloud hosted deployment or an on premise installation, including any developments, improvements, enhancements, bug fixes, patches and/or modifications to such solutions, as identified and having the features set forth in the applicable Order Form(s).
- “Documentation” means the published user guides and product information that Dasera generally makes available to its customers, as modified by Dasera from time to time.
- “Order Form(s)” mean the order form(s) or equivalent order document(s) containing the applicable licensed usage, additional features, applicable services, pricing and term, in each case, which are accepted by Dasera and are subject to these General Terms.
- “Services” mean support, professional and other services provided by Dasera as identified in the applicable Order Form(s).
- “Term” means the initial term set forth in the applicable Order Form, unless earlier terminated pursuant to these General Terms. After the initial term and unless earlier terminated pursuant to these General Terms, these General Terms, including the corresponding Order Form, shall automatically renew for consecutive renewal terms equivalent to the initial term set forth in the original Order Form at Dasera’s then current pricing, unless a party provides the other party with written notice of termination at least 60 days prior to the end of the then-current term.
2. Dasera Solutions.
- License. Subject to Customer’s compliance with these General Terms, Dasera grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license for the Authorized Users (i) to access and use the Dasera Solutions identified in the applicable Order Form(s) (including to install the downloadable Dasera software on Customer’s operated and managed systems for an on premise installation) in accordance with the licensed usage set forth in such Order Form(s), and (ii) to use the Documentation solely for its use of the licensed Dasera Solutions, in each case, for the internal business operations of Customer and its Affiliates during the Term, unless earlier terminated pursuant to these General Terms.
- Free Trial Licenses. If Customer is participating in a Dasera evaluation or trial (a “Free Trial License”), then subject to Customer’s compliance with these General Terms, Dasera grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable evaluation license for the Authorized Users (i) to access and use the Dasera Solutions, and (ii) to use the Documentation solely for its use of the licensed Dasera Solutions, in each case, for evaluation or trial purposes for the internal business operations of Customer and its Affiliates. The Free Trial License shall terminate immediately upon expiration of the Free Trial License term (30 days) or notice from Dasera, whichever is earlier. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THESE GENERAL TERMS, THE DASERA SOLUTIONS AND DOCUMENTATION PROVIDED PURSUANT TO THE FREE TRIAL LICENSE ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS WITHOUT ANY WARRANTY, SUPPORT, SERVICE LEVEL COMMITMENT OR INDEMNIFICATION OF ANY KIND, EXPRESS OR IMPLIED.
- Support. Except in the case of Free Trial Licenses, Dasera agrees to provide the support services, which are identified in the applicable Order Form(s), to Customer in accordance with Dasera’s then-current published support guidelines. The current support guidelines can be accessed through the following link: https://www.dasera.com/support-guidelines. The support services shall be subject to the terms and conditions of these General Terms, and such additional terms and conditions as set out in Dasera’s published support guidelines.
- Service Levels. Except in the case of Free Trial Licenses, for a cloud hosted deployment of the Dasera Solutions by Dasera, Dasera agrees to provide the service level commitment in accordance with Dasera’s then-current published service level schedule. The service level schedule and associated remedies will apply to the availability and uptime of the hosted Dasera Solutions. If applicable, service credits will be available for downtime in accordance with the service level schedule. The current service level schedule can be accessed through the following link: https://www.dasera.com/saas-service-level-schedule. The service level commitment shall be subject to the terms and conditions of these General Terms, and such additional terms and conditions as set out in Dasera’s published service level schedule.
- Services. Dasera agrees to use commercially reasonable efforts to provide Customer the Services identified in the applicable Order Form(s) in accordance with such Order Form(s). Dasera may provide the Services through its employees or authorized contractors, provided that Dasera will remain responsible for its contractors’ compliance with these General Terms.
- Customer Credentials and Users. Customer is solely responsible for maintaining the confidentiality of the administrator and user credentials, passwords and keys associated with the Dasera Solutions. Customer shall not make the Dasera Solutions available to anyone other than Authorized Users and shall be responsible and liable for any use of the Dasera Solutions not authorized under these General Terms. Customer agrees that Customer is responsible for ensuring that any usage of the Dasera Solutions by the Authorized Users is in compliance with these General Terms. Customer agrees to notify Dasera promptly if Customer believes that an unauthorized person or entity may be using Customer’s accounts, credentials, passwords or keys associated with the Dasera Solutions, or if any account information is lost or stolen.
- Customer Environment. Customer is solely responsible for maintaining the equipment and networking environment for using the Dasera Solutions that it is licensing, except for what Dasera is providing pursuant to these General Terms. As applicable for the Dasera Solutions that Customer is licensing, Customer is responsible for complying with the terms and conditions of their public or private cloud hosting provider, and obtaining and maintaining all telecommunications and broadband needed to access and use the licensed Dasera Solutions, and for paying all associated charges. Customer will only host the Dasera Solutions on cloud platforms currently supported by Dasera. If Customer desires to host the Dasera Solutions on an unsupported platform, Customer will notify Dasera and obtain Dasera’s prior written approval.
- Competitive Use Prohibited. Customer, its Affiliates and the Authorized Users shall not access or use the Dasera Solutions to evaluate it for competitive purposes, including for developing or improving any similar application, product or service, or any similar feature or functionality of the Dasera Solutions.
- Proprietary Notices. Customer, its Affiliates and the Authorized Users shall not remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Dasera Solutions or Documentation, or add any other markings or notices to the Dasera Solutions or Documentation.
- Use. Customer is solely responsible for the conduct of Customer, its Affiliates and the Authorized Users in their respective use of the Dasera Solutions and Documentation. Customer agrees to use, and to ensure that its Affiliates and the Authorized Users use, the Dasera Solutions in accordance with these General Terms and the Documentation. Customer agrees not to (and not to authorize any person or entity to) (i) use the Dasera Solutions or permit the Dasera Solutions to be used to perform any services for a third party on a service provider, hosted, services bureau, time sharing or other basis, (ii) use the Dasera Solutions or permit the Dasera Solutions to be used (1) in violation of any applicable laws, rules or regulations, (2) for any purpose that is illegal, infringing, libelous, tortious, fraudulent or deceptive, or (3) to cause abuse, harm, harassment, distress, torts or violation of any rights of any persons, (iii) knowingly upload or permit the Dasera Solutions to be used to upload any software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots, (iv) knowingly use or permit the use of any software, hardware, application or process that interferes with the Dasera Solutions, interferes with or disrupts machines or networks connected to the Dasera Solutions, or violates the regulations, policies or procedures of such machines or networks, (v) intentionally tamper with or breach the security of the Dasera Solutions, or (vi) release the results of any evaluation of the Dasera Solutions to any third party without prior written approval of Dasera. Customer shall, upon written request, provide Dasera with an accurate current count of data stores, fields and average queries per day being scanned by the Dasera Solutions.
- No Transfer. Customer, its Affiliates and the Authorized Users shall not copy, distribute, publicly display, sublicense, lease, loan, rent, sell, resell or otherwise transfer the Dasera Solutions or Documentation to any third party, except that Customer, its Affiliates and the Authorized Users may make a reasonable number of copies of the Documentation solely for the internal business use of Customer and its Affiliates. With respect to any copies of the Documentation, Customer shall ensure that each copy contains all titles, trademarks, and copyright and restricted rights notices, and that all such copies shall be subject to these General Terms.
- No Modifications. Customer, its Affiliates and the Authorized Users shall not modify, port, adapt, translate or create any derivative work based upon, the Dasera Solutions or Documentation.
- No Reverse Engineering. Customer, its Affiliates and the Authorized Users shall not reverse engineer, decompile, disassemble or otherwise derive or attempt to derive the source code of the Dasera Solutions.
- Audit. During the Term and for 90 days thereafter, upon at least 10 days’ prior written notice, Dasera may audit Customer’s and any of its Affiliate’s use of the Dasera Solutions to confirm compliance with these General Terms on a confidential basis. Any audit will be conducted during regular business hours, will not unreasonably interfere with the business of Customer and its Affiliates, and will be in compliance with Customer’s reasonable written security procedures. Dasera may conduct no more than one audit in any 12 month period. Customer agrees to reasonably cooperate with Dasera and any auditor of Dasera. Customer will promptly reimburse Dasera for all reasonable costs of the auditor if the audit reveals any material breach or violation of these General Terms or the Order Form(s).
- Customer Data. Customer represents and warrants that Customer owns all right, title and interest in and to the Customer Data or Customer has a license for or right to use the Customer Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. As between Dasera and Customer, Customer retains all right, title and interest in and to the Customer Data. Customer may retrieve the Customer Data and remove the Customer Data from the Dasera Solutions at any time during the Term in accordance with the applicable Documentation.
- Usage Data. Dasera may collect data regarding usage, configuration, deployment, access and/or performance of the Dasera Solutions, which are generated as a by-product when using the Dasera software (the “Usage Data”). Usage Data may include technical information about operating environment and sessions, systems architecture, page loads and views, product versions, number and type of searches, number of users, source type and format. Usage Data, however, does not include any Customer Data. Customer hereby grants Dasera a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicensable license to access, collect, analyze, process and use Usage Data to (i) identify, understand, and anticipate performance issues and the factors that affect performance issues, (ii) provide updates and personalized experiences to Customer and its Authorized Users, (iii) conduct analytics with respect to the Dasera Solutions, and (iv) develop and improve Dasera’s products and services. If Customer is self-hosting the Dasera Solutions on its own infrastructure, then Customer will have the ability to opt out of Dasera’s collection of Usage Data.
- Customer Security. Customer is solely responsible for (i) maintaining the security of Customer’s owned, operated and/or managed systems, (ii) selecting the appropriate security configurations and security options made available through the licensed Dasera Solutions, (iii) taking measures in addition to any provided by the Dasera Solutions to the extent the licensed Dasera Solutions do not provide the security controls that Customer requires or desires, and (iv) regularly archiving and backing up the Customer Data. DASERA SHALL NOT BE RESPONSIBLE FOR ANY ALTERATION, COMPROMISE, CORRUPTION, DISCLOSURE, LOSS OR USE OF THE CUSTOMER DATA.
- Dasera Security. Dasera is committed to protecting the security of Customer Data in accordance with generally accepted industry standards, and applicable laws. Dasera uses generally accepted industry safeguards, which are audited by third parties, to (i) provide security and integrity for the Customer Data, (ii) detect and protect against threats or hazards to the security or integrity of the Customer Data, and (iii) prevent unauthorized access to the Customer Data. Dasera's security safeguards include measures for preventing access, use, modification or disclosure of Customer Data by Dasera personnel or contractors except (a) to provide and maintain the Platform and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Customer expressly permits in writing or under this Agreement. Dasera will not materially diminish the protections provided in this Section during the term of this Agreement. Furthermore, Customer acknowledges that use of the Dasera Solutions involves transmission of Customer Data over networks that are not controlled by Dasera. Dasera cannot guarantee that its security safeguards will be error-free, that transmissions of the Customer Data will always be secure or that unauthorized persons or entities will never be able to defeat Dasera’s security safeguards or those of Dasera’s cloud hosting providers. If Dasera becomes aware of a confirmed use or disclosure of Customer Data or Customer Information in violation of this Agreement (a “Security Breach”), Dasera agrees to notify Customer upon the earlier of 24 hours after discovery or any time frame as required by applicable law. A Security Breach shall be treated as discovered as of the first day on which it is known or should reasonably have been reasonably known to Dasera.
6. Ownership. The Dasera Solutions and Documentation, including any developments, enhancements, improvements and derivative works therein and thereto, are the intellectual property of and are owned by Dasera and its licensors, and are the confidential information of Dasera, which confidentiality Customer agrees to preserve and protect in the same manner as Customer protects its own confidential information of a similar nature. As between Dasera and Customer, Dasera retains title to and ownership of all right, title and interest in and to the Dasera Solutions and Documentation, including all intellectual property and other proprietary rights therein and thereto, and subject to the limited license granted by Dasera to Customer in Section 2, Customer does not have any right, title or interest in or to the Dasera Solutions and Documentation. The Dasera Solutions may include certain open source code software and materials that are subject to their respective open source licenses, a list of which is available from Dasera. Such open source licenses contain conditions with respect to warranty, copyright notices and other provisions. The Dasera Solutions is subject to the provisions of such open source licenses. All rights not expressly granted in these General Terms are reserved by Dasera and its licensors.
7. Feedback. If Dasera receives any feedback, suggestions, ideas, reports, or other information relating to the Dasera Solutions or Documentation from Customer, its Affiliates or their Authorized Users (collectively, “Feedback”), Customer hereby agrees that Dasera may freely use, reproduce, display, distribute, transmit, store, create derivative works of, and otherwise exploit the Feedback. Further, Customer hereby irrevocably assigns to Dasera all right, title and interest in and to the Feedback, including any intellectual property and other proprietary rights therein and thereto, and otherwise agrees not to enforce, and otherwise waives to the fullest extent legally possible, any rights, including moral rights, that Customer, any Affiliate or any Authorized User may have now or in the future in respect of the Feedback. Neither Customer nor any Affiliate nor any Authorized User will receive any additional consideration or compensation for the Feedback. For clarity, Dasera retains title to and ownership of all right, title and interest in and to any development, enhancement, improvement or derivative work in or to the Dasera Solutions, including all intellectual property and other proprietary rights therein and thereto, that arises or results from, incorporates, or uses, any Feedback.
8. Payment Terms. Except in the case of Free Trial Licenses, Customer agrees to pay Dasera the fees for the Dasera Solutions as set forth in the Order Form(s) (the “Fees”). Fees are in U.S. Dollars, or the currency set forth in the Order Form(s). All subscriptions and payment obligations are non-cancellable, and all Fees paid to Dasera are non-refundable, except as expressly set forth in these General Terms. Unless otherwise set forth in the applicable Order Form(s), all Fees will be invoiced in advance, provided that if Customer’s use of the Dasera Solutions exceeds the licensed usage set forth in the applicable Order Form(s), Dasera will invoice Customer for such excess usage with pricing based on the Fees set forth in such Order Form(s), and Customer agrees to pay the additional Fees for such excess usage. All Fees, including excess usage Fees, are due and payable within 30 days following Customer’s receipt of Dasera’s invoice, unless otherwise set forth in the applicable Order Form(s). Customer shall pay Dasera interest on past due amounts payable under these General Terms at a rate equal to 1½% for each month or portion thereof that payment remains past due. In addition, Dasera may suspend the use of the Dasera Solutions by Customer and its Affiliates until all past due Fees are paid in full. Customer will reimburse Dasera for all reasonable costs incurred by Dasera for collecting any past due amounts. Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority. Customer is solely responsible for paying all such taxes, duties, fees and other amounts, other than taxes imposed on Dasera’s income. Customer will pay or reimburse Dasera for all such amounts upon demand or provide evidence of payment or exemption. In the case of any withholding requirement, Customer will pay any required withholding itself and will not reduce the amount payable to Dasera on account thereof.
9. Limited Warranties.
- Dasera Solutions Warranty. Dasera warrants that the Dasera Solutions will materially perform the functionality described in the applicable Documentation during the Term when used in accordance with these General Terms and the Documentation. This limited warranty is void if a defect in or failure of the Dasera Solutions has resulted from (i) any installation, use or support (including failure to incorporate any update) not in accordance with these General Terms or the Documentation, (ii) any modification by Customer, its Affiliates or the Authorized Users, or a third party not authorized by Dasera, (iii) any delay, delivery failure or any other loss or damage resulting from any act or omission of the Customer’s public or private cloud hosting provider, from the operation or non-operation of any other third-party service or software, or from the transfer of data over communications networks and facilities (including the internet), (iv) force majeure, or (v) any breach of these General Terms by Customer, its Affiliates or the Authorized Users. In the event of a warranty claim, Customer’s sole and exclusive remedy shall be for Dasera to correct or provide a workaround for reproducible Dasera Solutions errors, or if Dasera is unable to make the Dasera Solutions operate as warranted within a reasonable time considering the severity of the error and its impact on Customer, for Dasera, in its sole discretion, to terminate these General Terms and to refund Customer a pro-rated amount of the applicable Fees for licensing the Dasera Solutions pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the Term following the effective date of such early termination.
- Services Warranty. Dasera warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards with personnel with requisite skill and experience. In the event of a warranty claim, Customer’s sole and exclusive remedy shall be the re-performance of the deficient Services. If Dasera is unable to re-perform the Services as warranted, Dasera will refund Customer the applicable fees for such portion of the deficient Services pre-paid by Customer. Customer agrees to make any claim under this limited warranty to Dasera in writing within 30 days of performance of such deficient Services to receive the warranty remedy.
- Disclaimer. EXCEPT AS SET FORTH IN SECTIONS 9.1 AND 9.2, THE DASERA SOLUTIONS, SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS”. DASERA DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DASERA DOES NOT WARRANT THAT THE DASERA SOLUTIONS, SERVICES OR USE THEREOF WILL BE ERROR FREE, UNINTERRUPTED OR VIRUS FREE. DASERA DOES NOT WARRANT THAT THE DASERA SOLUTIONS, SERVICES OR USE THEREOF WILL ACHIEVE ANY REQUIREMENTS OF CUSTOMER OR ITS AFFILIATES, OR ANY OUTCOMES OR RESULTS.
- Free Trial Licenses. THE LIMITED WARRANTY IN THIS SECTION 9 DOES NOT APPLY TO ANY FREE TRIAL LICENSES, WHICH ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY USE OF THE DASERA SOLUTIONS IS ENTIRELY AT CUSTOMER’S OWN RISK.
- Intellectual Property Infringement. Dasera, if notified promptly in writing and given authority, control, information and assistance at Dasera’s expense for defense and settlement of same, shall defend Customer and its Affiliates against any third party action, suit or proceeding brought against Customer or its Affiliates so far as it is based on a claim that the use of the Dasera Solutions infringes a United States patent or copyright, and shall indemnify and hold harmless Customer and its Affiliates for (i) all attorneys’ fees, and court or tribunal costs incurred by Dasera with respect to defense and settlement of such third party claim, (ii) any judgments, fines, costs and penalties awarded by any court or tribunal against Dasera and/or its customers, including Customer and its Affiliates, for such third party claim and (iii) any amounts paid in settlement of such third party claim as mutually agreed by Dasera and the third party in such claim. If Dasera reasonably believes that use of the Dasera Solutions is likely to be enjoined, or if the Dasera Solutions are held to infringe such patent or copyright and all use of such Dasera Solutions are thereby enjoined, Dasera shall, at its expense and at its sole option, (i) procure for Customer and its Affiliates the right to continue using the Dasera Solutions, (ii) replace the Dasera Solutions with other non-infringing software of substantially equivalent functionality or (iii) modify the Dasera Solutions so that there is no infringement, provided that such modified software provides substantially equivalent functionality. If, in Dasera’s reasonable opinion, the remedies above are infeasible or commercially impracticable, Dasera may, in its sole discretion, terminate these General Terms and refund Customer a pro-rated amount of the applicable Fees for the Dasera Solutions pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the Term following the effective date of such early termination. Customer shall not settle any matter without the prior written approval of Dasera.
- Exceptions. The indemnification obligation in this Section 10 will not apply to the extent the infringement is caused by any of the following: (i) the use of a superseded or altered release of the Dasera Solutions if the claim would have been avoided by the use of a then-current unaltered release of the Dasera Solutions, (ii) the Dasera Solutions are modified in an unauthorized manner by Customer, its Affiliates or the Authorized Users, or a third party not authorized by Dasera, (iii) the Dasera Solutions are combined by Customer, its Affiliates or the Authorized Users with other software, hardware, application or process not authorized by Dasera, (iv) the Dasera Solutions are used by Customer, its Affiliates or the Authorized Users in violation of these General Terms or the Documentation, or (v) any materials, data or information, including the Customer Data, provided by Customer and/or its Affiliates.
- Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND DASERA’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION.
- Free Trial Licenses. THE INDEMNIFICATION OBLIGATION IN THIS SECTION 10 DOES NOT APPLY TO ANY FREE TRIAL LICENSES, AND ANY USE OF THE DASERA SOLUTIONS IS ENTIRELY AT CUSTOMER’S OWN RISK.
11. Limitation of Liability. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF DASERA’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE DASERA SOLUTIONS, SERVICES, DOCUMENTATION OR USE THEREOF, OR THESE GENERAL TERMS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF DASERA’S INTELLECTUAL PROPERTY RIGHTS, OR DASERA’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, EACH PARTY’S AGGREGATE LIABILITY UNDER THESE GENERAL TERMS SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE DASERA SOLUTIONS FOR THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 8. The limitations of liability and exclusions of damages in this Section 11 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in these General Terms is found to have failed its essential purpose.
12. Marketing. Neither party may disclose the specific terms of these General Terms or issue a public statement or press release regarding these General Terms without the other party’s prior written consent, but Dasera may identify Customer with its name and logo as its customer on Dasera’s website and other marketing materials for the full duration of these General Terms.
- Termination. These General Terms may be terminated (i) by either party at the end of the Term after giving written notice of 60 days prior to expiration of the Term, (ii) by the non-breaching party if the other party breaches a material term of these General Terms that is uncured within 30 days (or, in the case of non-payment, five days) after delivery of notice of such breach, or (iii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within 30 days. In addition, Dasera may immediately terminate these General Terms upon any breach by Customer of Section 2, 3 or 6.
- Fees. Upon expiration of these General Terms, Customer will pay Dasera any unpaid amounts that are owed to Dasera during the Term. Upon termination of these General Terms based on Customer’s breach (following any applicable cure period), Customer will pay Dasera any unpaid amounts that would have been owed to Dasera for the remainder of the then-current Term if such early termination had not occurred as well as any other amounts owed to Dasera under these General Terms, without limiting Dasera’s other rights and remedies. Upon termination of these General Terms based on Dasera’s breach (following any applicable cure period), Dasera will refund Customer any amounts pre-paid for the Dasera Solutions pursuant to these General Terms for the remaining full calendar months in the then-current Term.
- Dasera Property. Upon expiration or termination of these General Terms, (i) the limited license granted by Dasera to Customer pursuant to these General Terms will cease immediately, and (ii) Customer will immediately cease all use of the Dasera Solutions and Documentation, and delete or destroy (or, at Dasera’s request, return) all copies of the Dasera Solutions, Documentation and other Dasera confidential information in its possession or control, and certify such deletion, destruction and/or return in writing to Dasera.
- Customer Data. For a cloud hosted deployment of the Dasera Solutions by Dasera, Dasera will make the Customer Data available for Customer’s retrieval through the hosted Dasera Solutions for 30 days after expiration or termination of these General Terms. After that 30 days period, Dasera will have no obligation to store or preserve the Customer Data, and upon the expiration of such 30 days period, Customer hereby authorizes Dasera to, and Dasera will, unless legally prohibited, delete all Customer Data. If Customer requires assistance in connection with migration of the Customer Data, depending on the nature of the request, Dasera may require a mutually agreed fee for such assistance.
- Survival. Sections 3, 4.2, 6 through 8, 9.3, 11, 13 and 14 will survive any expiration or termination of these General Terms.
- Parties. Dasera and Customer are independent contractors. Nothing in these General Terms shall be deemed to constitute a joint venture or partnership between the parties, nor constitute any party as the agent of the other party for any purpose, or entitle any party to commit or bind the other party in any manner. Except as expressly provided in these General Terms, nothing in these General Terms or under applicable law is intended to confer any rights or obligations upon any person or entity other than the parties hereto and their respective successors and permitted assigns.
- Governing Law, Arbitration and Attorneys’ Fees. These General Terms shall be governed by the laws of California, United States. These General Terms shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute regarding these General Terms will, upon written demand of a party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted before a single neutral arbitrator exclusively in San Francisco, California, United States by the Judicial Arbitration and Mediation Service pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq, and the arbitrator’s Comprehensive Arbitration Rules and Procedures then in effect. Each party shall bear its own costs and expenses, and the two parties will share equally the fees and costs of the arbitrator. The award rendered in the arbitration may be enforced in any court of competent jurisdiction. Notwithstanding anything in these General Terms to the contrary, Dasera shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction in order to protect its intellectual property rights, and to enforce or obtain compliance with these General Terms without first submitting such matter to arbitration, which remedy will be cumulative and not exclusive. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING REGARDING THESE GENERAL TERMS. CUSTOMER AGREES THAT IT WILL NOT COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST DASERA. If any action is pursued to enforce these General Terms, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs, in addition to any other relief to which such party may be entitled.
- Export Control Laws. Customer acknowledges that the Dasera Solutions may be controlled by the laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations. Customer will not use or transfer any technology or data in violation of such laws. Customer represents that it is not, and is not acting on behalf of, (i) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List. Customer will not permit the Dasera Solutions to be used for any purposes prohibited by law.
- Entire Agreement. These General Terms, including the Order Form(s), are the parties’ entire agreement with respect to its subject matter, and supersedes any prior communications, discussions, understandings or agreements. Any use of Customer’s pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms and conditions set forth in Customer’s pre-printed forms that are in addition to, inconsistent or in conflict with, or different than, these General Terms shall be given no force or effect. Neither commencement of performance, nor failure to object to any additional or different terms and conditions from Customer, nor delivery, by, in each case, Dasera shall constitute an acceptance of any terms and conditions proposed by Customer that are in addition to, inconsistent or in conflict with, or different than, these General Terms.
- Amendments and Waivers. Dasera reserves the right at any time to modify these General Terms, including any support guidelines and service level schedule, and to impose new or additional terms or conditions on Customer’s use of the Dasera Solutions. If Dasera makes a material adverse change to these General Terms, Dasera will provide Customer with reasonable notice prior to the change taking effect, unless it would not be reasonable to do so due to circumstances arising from legal, regulatory or governmental action; to address user security, user privacy or technical integrity concerns; to avoid service disruptions to other users; or due to a force majeure outside of Dasera’s reasonable control. Customer can review the most current version of the Dasera General Terms at any time by visiting Dasera’s website. The materially revised Agreement will become effective on the date set forth in Dasera’s notice, and all other changes will become effective upon posting of the change. If Customer or any Authorized User accesses or uses the Dasera Solutions after the effective date, that access or use will constitute Customer’s acceptance of any revised terms and conditions. In the event that Dasera does make material adverse changes to these General Terms, Customer will have the right to terminate these General Terms, in which case Dasera will provide Customer a pro rata refund of any pre-paid Fees for Customer’s then-current paid Term. Dasera shall not be liable to Customer for any modifications to these General Terms made in accordance with this Section 14.5. Except as set forth above, no waiver under these General Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
- Severability. If any provision of these General Terms is held to be unenforceable, the unenforceable provision shall be replaced by an enforceable provision that comes closest to the parties’ intentions underlying the unenforceable provision, and the remaining provisions of these General Terms shall remain in full force and effect.
- Assignment. Dasera may subcontract the Dasera Solutions cloud hosting to its authorized contractor without Customer’s consent, provided that Dasera will remain responsible for its contractor’s compliance with these General Terms. Dasera may assign or transfer these General Terms, in whole or in part, to any Affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without Customer’s consent and without providing notice. Customer may assign or transfer these General Terms to an Affiliate or by business combination, operation of law or otherwise without Dasera’s prior written consent and with written notice to Dasera. Subject to the foregoing, these General Terms will bind and benefit the parties and their respective successors and permitted assigns.
- Force Majeure. A party shall not be liable for its inadequate performance (other than its payment obligations) caused by any condition beyond such party’s reasonable control, including accidents, acts of God, government acts, civil unrest, acts of war or terrorism, strikes or other labor problems, pandemics, epidemics, failures in telecommunications, internet, internet service provider or hosting facilities, power shortages and denial of service attacks.
- Notices. All notices shall be in writing and shall be deemed given upon the earlier of actual receipt or (i) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (ii) 10 days after having been sent by registered or certified mail, return receipt requested, postage prepaid, from one country to another country, or three days after having been sent by registered or certified mail, return receipt requested, postage prepaid, within the same country, or (iii) five business days after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt, from one country to another country, or one business day after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt, within the same country. All notices shall be sent to the parties at their respective address in the Order Form(s), or to such other address as subsequently notified pursuant to this Section 14.9.
- Construction. The parties waive with respect to these General Terms the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement shall be construed against the party drafting such agreement.