Last updated March 5, 2019
These DigitalOcean Marketplace Terms and Conditions (“Terms”) are entered into between DigitalOcean, LLC, including its affiliates (collectively, “DigitalOcean”), and you and your company (“Vendor”, “you”, or “your”). These Terms apply to Vendor’s publication of information regarding Vendor’s software, data, media, service, product, or other offering (“Vendor Offering”) and product information and images regarding your Vendor Offering (“Listing Information”) on the site maintained by DigitalOcean where it provides information about certain third-party offerings (“DigitalOcean Marketplace”). By submitting your Vendor Offering to DigitalOcean for publication on the DigitalOcean Marketplace you represent and warrant that you have the authority to bind Vendor to these Terms and agree to bind Vendor to these Terms.
(a) Submission Process. In order to participate in the DigitalOcean Marketplace, Vendor must submit a request in the form required by DigitalOcean. The requirements for each submission are set forth in DigitalOcean’s current publishing guidelines (“DigitalOcean Marketplace Publishing Guidelines”) located at https://marketplace.digitalocean.com/vendors/getting-started-as-a-digitalocean-marketplace-vendor, which DigitalOcean may update from time to time in its sole discretion. The DigitalOcean Marketplace Publishing Guidelines include minimum requirements for Vendors and Vendor Offerings to be included in the DigitalOcean Marketplace. Vendor may be required to create an account on a publishing portal in order to manage the submission process. If DigitalOcean approves the Vendor Offering for inclusion on the DigitalOcean Marketplace, DigitalOcean may publish the Vendor Offering on the DigitalOcean Marketplace, subject to the terms and conditions of these Terms. DigitalOcean reserves the right to reject any Vendor application for any or no reason. Vendor is responsible for ensuring that the Listing Information associated with its Vendor Offering is accurate and up to date at all times.
(b) Presentation of Vendor Offerings. DigitalOcean reserves the right to determine the manner in which Vendor Offerings, Listing Information, and any other information intended to inform DigitalOcean Marketplace users about a Vendor Offering, is presented and promoted in the DigitalOcean Marketplace. “Vendor Offerings” may include DigitalOcean 1-Click Apps (also known as One-Click applications), which are pre-built virtual machine images and/or container images that automate common set-up steps for users including package installation, firewall rules, and software configuration, and may also include new types of listings as determined in the future in DigitalOcean’s sole discretion. During the term of these Terms, Vendor grants DigitalOcean a limited, nonexclusive, worldwide, royalty-free, fully paid-up right and license under all of Vendor’s intellectual property rights in and to the Listing Information and Vendor Offerings to use, reproduce, translate into any language, and display the Listing Information and Vendor Offerings on the DigitalOcean Marketplace. DigitalOcean shall have no obligations to post, maintain, ensure the accuracy of or otherwise manage or handle the Listing Information or Vendor Offerings.
(c) License to Vendor Marks. During the term of these Terms, Vendor grants DigitalOcean a non-exclusive, royalty-free, fully paid up, worldwide right and license right and license under all of Vendor’s intellectual property rights in and to the Vendor Marks to use, reproduce and display Vendor’s trademarks and logos (“Vendor Marks”) as provided to DigitalOcean, in connection with the marketing and promotion of the Vendor Offerings in the DigitalOcean Marketplace. DigitalOcean may reformat or resize Vendor Marks for publishing on the DigitalOcean Marketplace provided that it does not materially alter the overall appearance of the Vendor Marks. DigitalOcean will stop using the Vendor Marks upon termination of Vendor’s participation on the DigitalOcean Marketplace.
i. Vendor will implement and maintain reasonable security measures to prevent unauthorized access to the Vendor Offerings. Such measures will in no event be less stringent than those used to safeguard Vendor’s own property. Such measures will include, where appropriate, use of updated firewalls, virus screening software, logon identification and passwords, encryption, intrusion detection systems, logging of incidents, periodic reporting, and prompt application of current security patches, virus definitions and other updates. DigitalOcean reserves the right to terminate these Terms, in its sole discretion and without limitation or termination liability, if DigitalOcean reasonably determines that Vendor fails to meet its obligations under this Section or if the areas of non-compliance are such that the security of the Vendor Offering is insufficient.
ii. If at any time Vendor determines that any unlawful or unauthorized access, use or disclosure of the systems and/or confidential information of Vendor, its customers or DigitalOcean (“Data Security Breach”) may have or has occurred, Vendor will promptly notify DigitalOcean of such Data Security Breach and investigate such Data Security Breach. Vendor will use reasonable efforts to notify DigitalOcean of a Data Security Breach within eight (8) hours after Vendor reasonably believes that there has been a Data Security Breach, but in no event more than twenty four (24) hours after such belief. Notwithstanding the written notice provision set forth in Section 8(i), all notices to DigitalOcean required under this Section in connection with a Data Security Breach will be made by email to email@example.com. Subject to applicable laws and regulations, any decision to notify a third party or parties of a Data Security Breach will be made by DigitalOcean in its sole discretion. Upon DigitalOcean’s request, Vendor will reasonably cooperate with DigitalOcean and its third-party service providers in conducting an investigation of the Data Security Breach, which may include providing DigitalOcean and its third-party service providers with access to the Vendor Offerings and their underlying systems, network, servers and applications affected by the Data Security Breach.
iii. Any password DigitalOcean provides to Vendor may be used only during the term to access and use the DigitalOcean Marketplace as permitted under these Terms. Vendor is solely responsible for maintaining the security of its password. Vendor may not disclose its password to any third party (other than third parties authorized by Vendor to use Vendor’s account in accordance with these Terms) and is solely responsible for any use of or action taken under its password. If Vendor’s password is compromised, Vendor must immediately change its password.
(e) Rights Reserved. Except for the license rights granted in these Terms: (i) Vendor retains all rights in the Listing Information and Vendor Offering; and (ii) each party retains all rights it would have independent of these Terms. DigitalOcean does not obtain any right, title or interest from Vendor under these Terms in or to the Listing Information and Vendor Offering. Vendor agrees that it is solely responsible for protecting and enforcing its rights in the Listing Information, Vendor Offering and the Vendor Marks and that DigitalOcean has no obligation to do so on Vendor’s behalf.
The DigitalOcean Marketplace is a forum for display of Listing Information regarding Vendor Offerings. Vendor, not DigitalOcean, is responsible for selling, licensing or otherwise granting end users (“Customers”) rights to use the Vendor Offerings, including all software, data, and services included within, installable by, or otherwise associated with a Vendor Offering. Such licenses, end user license agreements (EULAs) and other agreements (in whatever form) will be between Vendor and Customers. DigitalOcean will neither be a party to these agreements nor will the agreements create any obligations or responsibilities of any kind for DigitalOcean. Vendor will be solely responsible for providing its Customers with all necessary support services, maintenance and other services in connection with the Vendor Offering and for ensuring that any options for support services and maintenance services that are described in Vendor’s Listing Information for the Vendor Offering remain available for Customers.
(a) Definitions. In connection with these Terms, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form and regardless of the method of acquisition that the Discloser designates as confidential or should be reasonably known by Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of these Terms); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
(b) Restrictions on Use. Except as allowed in Section 3(c), Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees and contractors, in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as permitted in these Terms. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Discloser’s Confidential Information.
(c) Exceptions. Notwithstanding the restrictions in Section 3(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation, or (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory or legislative body of competent jurisdiction, or (iii) in connection with any regulatory report, audit or inquiry, or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall give Discloser prompt written notice of such requirement or request prior to disclosure and, to the extent feasible, give the Discloser a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to making such disclosure.
(d) Destruction. Upon Discloser’s written request at any time, Recipient shall return or destroy Discloser’s Confidential Information and any copies or extracts thereof. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of such return or destruction in compliance with this provision. Notwithstanding the foregoing, (i) Recipient will not be required to destroy or return automatic, archived computer back-up files on which Confidential Information may be stored in conformance with customary technology practices and policies and (ii) Recipient may retain one copy of the Discloser’s Confidential Information in accordance with its ordinary course legal record retention procedures; provided, however, that any such retained Confidential Information will be kept confidential and remain subject to these Terms for the period of retention.
(e) Equitable Relief. Each party acknowledges that a breach of this Section 3 shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.
(a) Vendor Representations and Warranties. Vendor represents and warrants to DigitalOcean that (i) it has all requisite right, power, and authority to enter into these Terms, perform your obligations, and grant the rights, licenses, and authorizations in these Terms; and (ii) any information provided or made available by Vendor or its for inclusion on the DigitalOcean Marketplace, including without limitation, the Vendor Offering, Vendor Marks, Listing Information, its agreement with Customers, is at all times accurate and complete.
(b) Disclaimer of Warranty. THE DIGITALOCEAN MARKETPLACE IS PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DIGITALOCEAN EXPRESSLY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. DIGITALOCEAN EXPRESSLY DISCLAIMS ANY WARRANTIES THAT ACCESS TO THE DIGITALOCEAN MARKETPLACE, OR USE OF, THE DIGITALOCEAN MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE.
These Terms will remain in effect until terminated. Either party may terminate these Terms at any time, for any reason or no reason, upon thirty (30) days’ written notice. Termination of these Terms will result in the Vendor Offering no longer being visible or otherwise available in the DigitalOcean Marketplace. Vendor may request removal of its Vendor Offerings from the DigitalOcean Marketplace by notifying DigitalOcean in writing and DigitalOcean will remove the Vendor Offering from the DigitalOcean Marketplace and will use commercially reasonable efforts to do so within ten (10) business days. DigitalOcean may immediately remove any Vendor Offering from the DigitalOcean Marketplace, for any reason or no reason, without terminating these Terms. The following Sections of these Terms shall survive termination of the Agreement: Sections 3, 4, 6, 7, and 8.
Vendor agrees to defend, indemnify, and hold harmless DigitalOcean and its affiliated companies, contractors, employees, and agents (“DigitalOcean Indemnified Parties”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses its Affiliates, as applicable, from and against (including by paying any associated costs, losses, damages, expenses, and attorneys’ fees) any and all third party claims: (i) alleging that the Vendor Offering, Vendor Marks, or Listing Information infringes or misappropriates any intellectual property right or personal right of a third party; (ii) arising from any dispute between Vendor and any Vendor customer relating to the Vendor Offering or any other Vendor product or service; (iii) Vendor’s actual or alleged breach of any obligations in these Terms; or (iv) use of the DigitalOcean Marketplace in violation of any applicable laws or regulations. Vendor shall not make any settlement or compromise of a claim, or admit or stipulate any fault or liability on the part of any DigitalOcean Indemnified Parties with respect to any claim covered by this Section without DigitalOcean’s express, prior written consent.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY LIABILITY ARISING UNDER SECTION 3 (CONFIDENTIALITY) OR 6 (INDEMNIFICATION): (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE); AND (II) THE AGGREGATE LIABILITY OF EACH PARTY SHALL NOT EXCEED $500.00. MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITATIONS. THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE DIGITALOCEAN IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND VENDORS, IF A DISPUTE ARISES BETWEEN A CUSTOMER AND A VENDOR, EACH PARTICIPANT RELEASES DIGITALOCEAN (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
(a) Conduct. Vendor and its customers shall at all times comply with DigitalOcean’s Acceptable Use Policy, located at https://www.digitalocean.com/legal/acceptable-use-policy/. Neither party shall make any representations, warranties, or guarantees concerning the other party’s offerings, products, or services, except as expressly authorized in writing by the other party. Vendor shall not make any representation that DigitalOcean has approved, recommended, or otherwise endorsed Vendor or a Vendor Offering.
(b) No Exclusivity. Each party acknowledges and agrees that the rights granted to and obligations due to the other party in these Terms are intended to be non-exclusive and therefore that nothing in these Terms will be deemed or construed to prohibit either party from engaging in or participating itself or with one or more third parties in business arrangements similar to or competitive with those described herein.
(c) Modifications. DigitalOcean may amend any of the terms and conditions contained in these Terms at any time and in its sole discretion. Any changes will be effective upon the posting of such changes on the DigitalOcean Marketplace. Vendors are responsible for reviewing the DigitalOcean Marketplace and informing yourself of all applicable changes or notices. All notice of changes to the Agreement will be posted for at least thirty (30) days. Changes to the DigitalOcean Marketplace Publishing Guidelines and other policies may be made without notice to Vendor. Vendor should refer regularly to the DigitalOcean Marketplace to review the current Agreement and to the DigitalOcean Marketplace Publishing Guidelines to review the current Guidelines. A VENDOR’S CONTINUED USE OF THE DIGITALOCEAN MARKETPLACE AFTER DIGITALOCEAN’S POSTING OF ANY CHANGES WILL CONSTITUTE VENDOR’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS to the agreement.
(d) Governing Law and Dispute Resolution. Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of New York, without regard to principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods. Subject to the paragraph below, you agree that any dispute arising out of or related to these Terms will be subject to the exclusive jurisdiction and venue of the New York state courts of New York County, New York (or, if there is exclusive federal jurisdiction, a United States Southern District Court of New York). The parties consent to personal and exclusive jurisdiction of these courts.
In the event of any controversy, claim, action or dispute arising out of or related to these Terms (“Dispute”), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Both you and DigitalOcean agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party. If the parties cannot resolve the Dispute, you and DigitalOcean agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. This agreement to arbitrate Disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DIGITALOCEAN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Any arbitration between you and DigitalOcean will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA.
(e) Compliance with Laws. Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party, including without limitation, data privacy, applicable export and import laws and anticorruption laws including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act of 2010.
(f) Severability. If any term, condition, or provision of these Terms, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in these Terms. Such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
(g) Waiver. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice such party’s right to take subsequent action. Except as expressly stated in these Terms, no exercise or enforcement by either party of any right or remedy under these Terms will preclude the enforcement by such party of any other right or remedy under these Terms or that such party is entitled by law to enforce.
(h) No Partnership; Agency. Nothing in these Terms shall constitute or create a joint venture, partnership, or any other similar arrangement between the parties. No party is authorized to act as agent for the other party hereunder except as expressly stated in these Terms.
(i) Notices. All legal notices will be given in writing to DigitalOcean at 101 Avenue of the Americas, New York, NY 10013 and to Vendor at the address provided during the DigitalOcean Marketplace registration process and will be effective (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (ii) five (5) business days after being sent by registered or certified mail (or ten (10) days for international mail).
(j) Force Majeure. Neither party shall be responsible for any non-performance or delay (except for delay in payment, if any) attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, government actions, war, civil disturbance, insurrection, sabotage, terrorist acts, labor shortages or disputes, failure or delaying delivery by a party’s suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, or the other party’s fault or negligence.
(k) Order of Interpretation. In the event of a conflict between the terms of these Terms and DigitalOcean’s Terms of Service Agreement, located at https://www.digitalocean.com/legal/terms-of-service-agreement, these Terms shall control. In the event of a conflict between the terms of these Terms and the Marketplace Publishing Guidelines, these Terms shall control.
(l) Entire Agreement. These Terms (including all the matters incorporated by reference herein) supersedes all prior communications, transactions, and understandings, whether oral or written, and constitutes the sole and entire agreement between the parties pertaining to the subject matter hereof.