GENERAL TERMS AND CONDITIONS
These General Terms and Conditions contain the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between DigitalOcean, LLC ("DO", "we", "us", or "our") and you or the entity you represent ("Customer", "you", or "your"). This Agreement takes effect when you execute an Order Form (as defined below) referencing this Agreement or, earlier, when you use any of the Service Offerings (the "Effective Date"). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates (as defined below) to these terms and conditions, in which case the terms "Customer", "you" or "your" shall refer to such entity and its Affiliates. This Agreement incorporates the following documents by reference: (i) the Order Form that describes the Services you are buying and related fees; (ii) these General Terms and Conditions; (iii) the Acceptable Use Policy; and (iii) if the Service purchased by you will be provided from data centers located outside the United States, the Country Specific Terms that may be applicable in such jurisdictions. When we use the term "Agreement" in any of these documents, we are referring collectively to all of them.
"Acceptable Use Policy" or "AUP" means the policy currently available at https://www.digitalocean.com/legal/aup, as it may be updated by us from time to time.
"Affiliate" means when used with respect to one of the parties hereto, any legal entity or entities directly or indirectly controlling, controlled by, or under common control with a Party. The term "control" as used in the immediately preceding sentence means the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the shares, partnership interests, membership shares or similar evidences of ownership of such controlled entity.
"API" means an application program interface.
"Business Day" or "Business Hours" means 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays in the United States.
"Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include without limitation Your Content; DO Confidential Information shall include without limitation the Service, the DO Technology, unpublished prices and other terms of service, audit and security reports, product development plans, solution diagrams, data center designs (including non-graphic information you may observe on a tour of a data center), and other proprietary information or technology; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without any utilization of the Disclosing Party's Confidential Information.
"Content" means software (including machine images), data, text, audio, video, or images.
"Country Specific Terms" means the addendum or addenda that may be incorporated into your Agreement if a portion of your Services are to be provided from a non-United States jurisdiction for which we have special legal terms.
"Documentation" means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services.
"DO Content" means Content we or any of its Affiliates make available in connection with the Service or on the DO Site to allow access to and use of the Service, including Documentation; sample code; software libraries; command line tools; and other related technology.
"DO Marks" means any trademarks, service marks, service or trade names, logos, and other designations of DO and its Affiliates that we may make available to you in connection with this Agreement.
"DO Site" means https://www.digitalocean.com and any successor or related site designated by us.
"DO Technology" means the DO Content, the DO Marks, certain documents, software and other works of authorship, other technology (including without limitation any interfaces utilized to connect to the Service), software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information, and any other data, information and/or material provided by DO to you in the course of your use of the Service or in the performance of any Supplementary Services.
"End User" means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service under your account. The term "End User" does not include individuals or entities when they are accessing or using the Service or any Content under their own DO account, rather than your account.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the documents for placing orders hereunder, including a written description of the Services you are buying from DO, related fees and any addenda thereto, that are entered into between You and DO or any of DO's Affiliates from time to time, including addenda and supplements thereto. Order Forms shall be deemed incorporated herein by reference.
"Policies" means the Acceptable Use Policy, all restrictions described in the DO Content and on the DO Site, and any other policy or terms referenced in or incorporated into this Agreement.
"Service" means the cloud infrastructure services (including associated APIs), the DO Technology, the DO Site, and any other product or service provided by us under this Agreement and as set forth in an Order Form, including without limitation the provision for your use of a combination of hardware, software and networking elements that comprise an information technology system. The Service does not include any Third Party Content.
"Service Attributes" means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
"Service Level Agreement" or "SLA" means the service level agreement that we offer with respect to the Service, as they may be updated by us from time to time.
"Services" means the Service and any Supplementary Services, collectively, made available by us or our Affiliates.
"Suggestions" means all suggested improvements, enhancement requests, recommendations or other feedback provided by you, including End Users, to us relating to the operation of the Service.
"Supplementary Services" means those Services you purchase from DO other than the Service, including time and materials based professional or consulting services, one-time or non-recurring services, and any other services identified as "Supplementary Services" on the applicable Order Form.
"Term" means the term of this Agreement described in Section 10.1.
"Third Party Content" means Content made available to you by any third party on the DO Site or in conjunction with the Service.
"Your Content" means Content that you or any End User transfers to us for processing, storage or hosting by the Service in connection with your DO account.
"Your Submissions" means Content that you post or otherwise submit to developer forums, sample code repositories, public data repositories, or similar community-focused areas of the DO Site or the Service.
2. OUR RESPONSIBILITIES
DO's obligation to begin providing Services is contingent on your fulfillment of DO's credit approval criteria. DO will exercise commercially reasonable efforts to provide the Service in accordance with the specifications set forth in an Order Form and the SLA. DO will perform any Supplementary Services in a good and professional manner. DO will perform all Services in accordance with applicable law. We may change or discontinue any APIs for the Service from time to time but will use commercially reasonable efforts to continue supporting the previous version of any such API changed or discontinued for twelve (12) months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities). You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by DO regarding future functionality or features.
3. YOUR RESPONSIBILITIES
3.1 General. You must use reasonable security precautions in connection with your use of the Service. You must comply with the laws applicable to your use of the Service and with the Acceptable Use Policy. You must cooperate with DO's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date. You must pay when due the fees for the Services stated in the applicable Order Form. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any such dispute to DO within ten (10) calendar days of your receipt of the invoice. Each of us agrees to work together to promptly resolve any disputes. In the event that you do not provide DO with such notice of dispute within such ten (10) day period, all amounts under an invoice shall be deemed undisputed and accepted by you.
3.2 Your Content. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
- the technical operation of Your Content, including ensuring that calls you make to any Service are compatible with then-current APIs for that Service;
- compliance of Your Content with the Acceptable Use Policy, other Policies, and the law;
- any claims relating to Your Content;
- properly handling and processing notices sent to you (or any of your Affiliates) by any person claiming that Your Content violates such person's rights, including notices pursuant to the Digital Millennium Copyright Act;
- the accuracy, quality and legality of Your Content and of the means by which You acquired Your Content;
- providing DO such assistance as DO may reasonably request in relation to the transfer of Your Content to the Service; and
- providing DO timely, accurate and complete information necessary for the implementation of Your Content with the Service.
3.3 Other Security and Backup. You are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content. DO log-in credentials and private keys generated by the Service are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
3.4 End User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service. You are responsible for End Users' use of Your Content and the Service. You will ensure that all End Users comply with all your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User's access to Your Content and the Service. In addition to the foregoing, You agree that any claim, demand or right of action arising from an End User's use of the Service shall be brought against You and not DO.
3.5 End User Support. You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services. We will provide support only to your administrative or technical contacts listed on your account. We will not provide support directly to your End Users, unless specifically agreed in writing.
3.6 Other Responsibilities. You shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify DO promptly of any such unauthorized access or use, and (ii) use the Service only in accordance with any Policies for the Service and applicable laws and government regulations. You shall not (a) make the Service available to anyone other than authorized End Users, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or Third Party Content contained therein, or (f) attempt to gain unauthorized access to the Service or its related systems and/or networks.
3.7 Violations of the Agreement. You will remain directly liable and responsible to DO and its licensors for any violation by You and/or Your End Users of this Agreement, and You shall indemnify and hold harmless DO and its licensors and their respective officers, directors, employees and agents, from and against any and all claims, demands, costs and liabilities (including all reasonable attorneys' fees) arising out of or related to any representation, action or omission by any End User inconsistent with the terms and conditions of this Agreement.
3.8 Usage Limitations. The Service may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against the API, and, for the Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations shall be specified by DO in its Policies. The Service provides real-time information to enable You to monitor Your compliance with such limitations.
4. WARRANTIES AND PROMISES WE DO NOT MAKE
4.1 DO Warranties. Subject to the other provisions of this Section 4, DO warrants that (i) DO has validly entered into this Agreement and has the legal power to do so, and (ii) DO will not intentionally transmit Malicious Code to you. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) below.
4.2 Your Warranties. You warrant that you have validly entered into this Agreement and have the legal power to do so.
4.3 Risks. We do not promise that the Service will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property, including without limitation Your Content.
4.4 Backups. DO does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in an Order Form. In all events, you release DO from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
4.5 Disclaimers. THE SERVICE IS PROVIDED "AS IS." WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DO SHALL NOT BE RESPONSIBLE FOR THE PERFORMANCE OF OUTPUT OBTAINED FROM THE SERVICE.
5. USE OF THE SERVICE
5.1 Your Account. To access the Service, you must create a DO account associated with a valid e-mail address. Unless explicitly permitted by under an Order Form, you may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees, an End User or a third party (including your contractors or agents). DO is not responsible to you or any third party for unauthorized access to your account, Your Content or the unauthorized use of the Service, unless the unauthorized access or use directly results from DO's failure to meet its security obligations hereunder. You are responsible for the use of the Service by any employee of yours, any person you authorize to use the Service, any person to whom you have given access to the Service, and any person who gains access to Your Content or the Service as a result of your failure to use reasonable security precautions, even if such use was not authorized by you. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
5.2 Support to You. If you would like support for the Service, other than the support we generally provide to other users of the Service without charge, you may contact us to discuss additional customer support options.
5.3 Third Party Content. Third Party Content, such as software applications provided by third parties, may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.
6. FEES AND PAYMENT
6.1 Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) all fees are quoted in United States Dollars. (ii) fees are based on Services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Unless otherwise set forth in the pertinent Order Form, subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore to the extent applicable, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. Additional subscriptions may also be subject to increased rates, in DO's sole discretion, based upon on your data sizing increases, from your data requirements identified as of your initial order of the Service and/or any increases in pricing from DO's providers. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
6.2 Invoicing and Payment. You will provide DO with a valid purchase order or alternative document reasonably acceptable to DO. DO shall invoice you for fees for the Service in advance and otherwise in accordance with the terms of the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Payment for Supplementary Services is payable within thirty days after the date of DO's invoice. You shall reimburse DO for reasonable food, lodging, travel, and incidental expenses incurred by DO's employees in conjunction with any on-site Supplementary Services ordered by you. If such Supplementary Services are performed at DO's premises, such expenses incurred by your employees shall be borne by you. You are responsible for providing complete and accurate billing and contact information to DO and notifying DO of any changes to such information.
6.3 Overdue Charges. If any fees are not received from you by the due date, then at DO's discretion, such fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.4 Suspension of Service and Acceleration For Non-payment. If any amount owing by you under this or any other agreement for DO's Services is 30 or more days overdue, DO may, without limiting DO's other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Service to you until such amounts are paid in full. DO will give you at least 5 Business Days' prior notice that your account is overdue before suspending Services to you. Further, a pre-pay by you will be required to restart any such suspended Service. In addition to the foregoing, DO shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys' fees, expenses and costs) incurred in attempting to collect payment from you.
6.5 Payment Disputes. DO shall not exercise DO's rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6 Taxes. Unless otherwise stated, DO's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If DO has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide DO with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, DO is solely responsible for taxes assessable against it based on DO's income, property and employees.
7. TEMPORARY SUSPENSION
7.1 Generally. We may suspend your or any End User's right to access or use any portion or all of the Service:
- immediately upon notice to you if we determine your or an End User's use of or registration for the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or Content of any other DO customer, (iii) may subject us, our Affiliates, or any third party to liability, or (iv) may be fraudulent;
- subject to any applicable cure period, upon notice to you if we determine you are, or any End User is, in breach of this Agreement; or
- immediately upon notice to you if we determine you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
7.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service:
- you remain responsible for all fees and charges you have incurred through the date of suspension;
- you remain responsible for any applicable fees and charges for any Service to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
- you will not be entitled to any service credits under the SLA for any period of suspension; and
- we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your or any End User's right to access or use the Service is in addition to our right to terminate this Agreement pursuant to Section 10.2 and 10.3.
8. PROPRIETARY RIGHTS
8.1 Reservation of Rights in the Service. Subject to the limited rights expressly granted hereunder, DO reserves all rights, title and interest in and to the Service, including all related intellectual property rights. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) copy and use the DO Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.1, you obtain no rights under this Agreement from us or our licensors to the Service, including any related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
8.2 Restrictions. Neither you nor any End User may use the Service in any manner or for any purpose other than as expressly permitted by this Agreement. You, including Your End Users, shall not (i) permit any third party to access the Service except as permitted herein or in an Order Form, (ii) create derivate works based on the Service except as authorized herein, (iii) copy, frame or mirror any part or content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Service, or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service. Neither you nor any End User may, or may attempt to, (a) access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (b) resell or sublicense the Service. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our Affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service you have used. You may only use the DO Marks in accordance with DO's Policies.
8.3 Your Applications and Code. If you, a third party acting on your behalf, or an End User creates applications or program code using the Service, you authorize DO to host, copy, transmit, display and adapt such applications and program code, solely as necessary for DO to provide the Service in accordance with this Agreement. Subject to the above, DO acquires no right, title or interest from you or your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
8.4 Your Content. Subject to the limited rights granted by you hereunder, DO acquires no right, title or interest from you or your licensors under this Agreement in or to Your Content, including any intellectual property rights therein. As between you and us, you or your licensors own all right, title, and interest in and to Your Content. You consent to our use of Your Content to provide the Service to you and any End Users. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Your Submissions; (b) you have all rights in Your Content and Your Submissions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content, Your Submissions or End Users' use of Your Content, Your Submissions or the Service will violate the Acceptable Use Policy.
8.5 Suggestions. If you provide any Suggestions to us or our Affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our Affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
8.6 Federal Government End Use Provisions. DO provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with DO to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
9.1 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care): (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates', employees, contractors and/or agents. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.
9.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date you accept it and continues until all subscriptions granted in accordance with this Agreement and the pertinent Order Form(s) have expired or been terminated.
10.2 Term of Subscriptions. Subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term, unless DO has given you written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in Section 7.1, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Service expires, terminates or requires us to change the way we provide the software or other technology as part of the Service, (C) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Service by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.
10.4 Payment Upon Termination. Upon any termination for any reason, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to DO hereunder.
10.5 Return of Your Content. Upon request by you made within 30 days after the effective date of termination of a Service subscription, DO will make available to you for download a file of Your Content in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, DO shall have no obligation to maintain or provide any of Your Content and shall thereafter, unless legally prohibited, delete all of Your Content in DO systems or otherwise in DO's possession or under DO's control.
10.6 Termination of Rights. Upon any termination of this Agreement for any reason, all your rights under this Agreement immediately terminate; and you will immediately return or, if instructed by us, destroy all DO Content in your possession.
10.7 Surviving Provisions. Sections 1 (Definitions), 3.2 (Your Content), 3.4 (End User Violations), 3.6 (Other Responsibilities), 3.7 (Violations of the Agreement), 4 (Warranties and Promises We Do Not Make), 5.3 (Third Party Content), 6 (Fees and Payment), 7.2 (Effect of Suspension), 8 (Proprietary Rights), 9 (Confidentiality), 10.4 (Payment Upon Termination), 10.5 (Return of Your Content), 10.6 (Termination of Rights), 10.7 (Surviving Provisions), 11 (Limitation of Liability), 12 (Mutual Indemnification), 14 (Notices, Governing Law and Jurisdiction) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
11. LIMITATION OF LIABILITY
WE AND OUR AFFILIATES AND/OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES AND/OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLA, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES' AND/OR LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
12. MUTUAL INDEMNIFICATION
12.1 Indemnification by DO. DO shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the use of the Service, as permitted hereunder, infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, attorney fees and costs finally awarded against you, as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give DO written notice of the Claim Against You; (b) give DO sole control of the defense and settlement of the Claim Against You (provided that DO may not settle any Claim Against You unless the settlement unconditionally releases you of all liability); and (c) provide to DO all reasonable assistance, at DO's expense. In the event of a Claim Against You, or if DO reasonably believes the Service may infringe or misappropriate, DO may in DO's discretion and at no cost to you (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for your continued use of the Service in accordance with this Agreement, or (iii) terminate your subscriptions for such Service upon 30 days' written notice and refund to you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.
12.2 Indemnification by You. You shall defend DO against any claim, demand, suit or proceeding made or brought against DO by a third party alleging that Your Content, or your, and/or your End User's, use of the Service in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against DO"), and shall indemnify DO for any damages, attorney fees and costs finally awarded against DO, as a result of, or for any amounts paid by DO under a court-approved settlement of, a Claim Against DO; provided that DO (a) promptly gives you written notice of the Claim Against DO; (b) gives you sole control of the defense and settlement of the Claim Against DO (provided that you may not settle any Claim Against DO unless the settlement unconditionally releases DO of all liability); and (c) provides to you all reasonable assistance, at your expense.
12.3 Exclusive Remedy. This Section 12 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any third-party infringement claim described in this Section.
13. SECURITY AND DATA PRIVACY
13.1 DO Security. Without limiting Section 4.5 or your obligations under Section 3.3, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
13.3 Service Attributes. To provide billing and administration services, we may process Service Attributes in the DO region(s) where you use the Service and the DO regions in the United States. To provide you with support services initiated by you and investigate fraud, abuse or violations of this Agreement, we may process Service Attributes where we maintain our support and investigation personnel.
13.4 Data Centers. We are constantly upgrading our data center facilities and in order for you to benefit from this, you agree that we may relocate Your Content within our data centers, make changes to the provision of the Service, URLs and your IP addresses and may establish new procedures for the use of the Service. We may also make changes to DNS records and zones on DO operated or managed DNS servers as we deem necessary for the operation of the shared network infrastructure. In each case, we will give you reasonable advance notice and use commercially reasonable efforts to minimize the effect that such change will have on your use of the Service.
14. NOTICES, GOVERNING LAW AND JURISDICTION
14.1 Agreement to Governing Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of New York and controlling United States federal law, without reference to its choice of law provision. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in New York County, New York, USA., except that DO may seek to enforce any judgment anywhere in the world where you may have assets. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
14.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second Business Day after mailing, (iii) the second Business Day after sending by confirmed facsimile, or (iv) the first Business Day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant Services system administrator designated by you. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
14.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
15. GENERAL PROVISIONS
15.1 Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the DO region in which any of the foregoing occur.
15.2 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of DO's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify DO's Legal Department.
15.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. During the performance of any professional services, and for a period of one year after conclusion of such services, both parties agree not to solicit, induce, attempt to hire or hire any employee of the other party, or assist in such hiring by any other person or business entity or encourage any such employee to terminate his or her employment with the other party, without prior written consent of the other party.
15.4 Force Majeure. If either party to this Agreement shall be prevented, hindered or delayed in the performance or observance of any of its obligations hereunder, with the exception of payment obligations, by reason of any act of God, natural disaster, war, riot, civil commotion, explosion, fire, government action, epidemic, Internet failure or other circumstance beyond its reasonable control, then such party shall be excused from further performance or observance of the obligation so affected for as long as such circumstances shall prevail.
15.5 No Third-Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
15.6 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
15.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: The General Terms and Conditions; Country Specific Terms (if any); Order Form; and the Acceptable Use Policy. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation."
15.10 Publicity. Either party may publicize the existence and general nature of the relationship established by this Agreement through mutually agreed upon press releases and other marketing collateral. You consent to DO's right to use your name on DO's web-site and in marketing activities and press releases. You agree to participate as a "Premier Reference Partner" with DO, and as such, agree to: (a) participate in a reasonable and non-disruptive number of reference calls to prospective DO clients, and industry analysts; (b) participate in a joint press release at execution of this Agreement; (c) participate in a joint case study; and (d) participate in one industry trade show or DO webinar.
15.11 Audit. During the term of this Agreement and for a period of one year thereafter, DO shall have the right from time to time, but not more than once per quarter, at its own expense and under reasonable conditions of time and place, to have an independent auditor, under duties of confidentiality, audit and copy all records of you relating to any of your obligations under this Agreement. In the event any such audit discloses any breach of the terms of this Agreement by you, an End User, or your employees, agents and/or contractors, including without limitation any utilization of the Service beyond your scope of use hereunder, you shall, in addition to such other rights and remedies as may be available to DO as the result of such breach, pay to DO the full cost of such audit and copying. In addition to the foregoing, you shall, on an annual basis, provide DO with written certification of your compliance with your scope of use of the Service hereunder, signed by an officer or employee of you with actual authority with respect to such matters.
15.12 Disputes. Except with respect to any equitable relief, in the event you are dissatisfied with the Service and/or DO's performance of the Services, any deliverable, any employee of DO, or a dispute otherwise arises between the parties in connection with this Agreement, before resorting to judicial process, you will immediately notify the DO account manager thereof, and your contact and the DO account manager will attempt to resolve the matter. If the dispute cannot be resolved by the liaisons within five (5) Business Days of you informing DO in writing of the issue in dispute, then your contact will promptly refer the dispute to your senior management and the DO account manager will promptly refer the dispute to its senior management. If these persons cannot resolve the dispute within ten (10) Business Days after the conclusion of the preceding five (5) day period, then either party will have the right to proceed to resolve the suit by judicial process.
15.13 Injunctive Relief. Each party acknowledges that any violation by that party of its covenants in this Agreement relating to patents or other intellectual property rights or Confidential Information would result in damage to the other party that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give the other party the right to seek injunctive relief to prevent or prohibit the continuance of such violation.
15.14 Counterparts. The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.