Last Updated: April 1, 2017
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCEPTING THESE TERMS OF SERVICE, EITHER THROUGH EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE OR CLICKING TO ACCEPT WHERE SUCH OPTION IS PRESENTED TO YOU, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, FULLY UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER ENTITY YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY TO THESE TERMS OF SERVICE.
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (“MSA”) is entered into by and between Customer and Treasure Data, and is effective as of the Effective Date of the Order Form (the “Effective Date”). The MSA together with any Order Forms and Statements of Work executed by Treasure Data and Customer under the MSA shall be collectively referred to as the “Agreement.”
This Agreement permits Customer to purchase subscription(s) to Treasure Data’s Fluentd enterprise software and support (the “Enterprise Subscription”) pursuant to order forms executed by the parties which reference this Agreement (“Order Form(s)”), as well as related Consulting Services (defined below) pursuant to Statements of Work (defined below). The Agreement will govern Customer’s initial subscription to the Enterprise Subscription and/or Consulting Services on the Effective Date, as well as any future purchases made by Customer pursuant to Order Form(s) and/or SOW(s).
1. ENTERPRISE SUBSCRIPTION
1.1 Provision of the Enterprise Subscription. Subject to the terms of the Agreement, Treasure Data shall make the Enterprise Subscription (including the Software and related Support Services) available to Customer during the Subscription Term solely for Customer’s own internal business purposes as permitted by and subject to the Agreement (including the usage limits stated in the applicable Order Form) and the Documentation.
1.2 Consulting Services.reasure Data may provide implementation, configuration, training, and other similar services related to the Enterprise Subscription (collectively "Consulting Services"). All Consulting Services, including the applicable fees for such services, will be set out in either an Order Form or a Statement of Work executed by the Parties ("SOW") which will reference and be governed by this Agreement. Any materials produced by or with Treasure Data in the course of providing any support or Consulting Services to Customer (the "Service Materials"), shall remain the exclusive property of Treasure Data. Service Materials include materials created for or in cooperation with Customer, but do not include any Customer Confidential Information or the Enterprise Subscription. Customer shall reimburse Treasure Data for all reasonable, pre-approved (by Customer in writing) and appropriately documented travel and related expenses incurred by Treasure Data in performing any support or Consulting Services for Customer under this Agreement.
2.1 Fluentd Software. Subject to these Terms, and the applicable Order Form (including the usage limits stated therein), Customer shall have a non-exclusive, non-transferrable, non-sublicensable and limited right to use the Software during the Subscription Term solely for Customer’s internal business purposes.
2.2 Restrictions. Customer agree that it will not (and will not permit or encourage any third party to directly or indirectly):
- use the Software in any manner which is not authorized by these Terms or which violates any applicable law;
- copy or reproduce the Software in whole or in part except as authorized under these Terms;
- modify, translate or create derivative works of the Software;
- reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form;
- distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Software or Customer’s rights to use the Software; or
- remove or modify any copyright, trademark or other proprietary notice of Treasure Data or its licensors contained within the Software.
ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO TREASURE DATA AND ITS LICENSORS.
2.3 Usage Limits. Customer’s use of the Enterprise Subscription must be in accordance with the plan level and Node limits set forth on the applicable Order Form and the accompanying Documentation. If Customer exceeds the plan level and/or Node limits, Customer will immediately notify Treasure Data. Treasure Data will invoice and Customer will pay the additional Subscription Fees for the exceeded amounts, which will be pro-rated to the annual Subscription Fee and co-termed to the then current Subscription Term.
3. SUPPORT SERVICES
3.1 Provision of the Support Services. Subject to these Terms, Treasure Data shall, during the Subscription Term, provide Customer with the Support Services in accordance with Customer’s selected plan level (as set forth in the Order Form). All instances of the Software that Customer runs, executes, and/or deploys must be covered by the Enterprise Subscription and at the same plan level. For example, Customer cannot purchase Platinum Level support for certain instances of the Software, and Gold Level support for other instances. Additionally, the Support Services may be used only to support the Software, but not otherwise. Treasure Data reserves the right to suspend and/or terminate the Support Services and any associated Order Form, if it discovers that Support Services were used in support of any other software.
3.2 Support Plan. Treasure Data endeavors to provide the Support Services in accordance with the service levels and support plan set forth in the applicable Order Form. All Support Services will be provided in the English language, unless otherwise agreed in the applicable Order Form.
3.3 Exclusions. Support Services do not cover problems caused by the following:
- unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning or humidity control; neglect; misuse; operation of the Software with other media not in accordance with the Documentation; or causes other than ordinary use;
- use of the Software that deviates from any operating procedures as specified in the Documentation;
- Third party products or services;
- use of the Software with unsupported plug-ins, tools, APIs, interfaces or data formats other than those included with the Software and supported as set forth in the Documentation (collectively, “Third Party Plug-In(s)”);
- a failure by Customer to replace earlier versions of the Software with Updates made available to Customer.
Customer may request assistance from Treasure Data for such problems, for an additional fee. In the event that Treasure Data suspects that a reported problem may be related to a Third Party Plug-in, Treasure Data, may, in its sole discretion, request that the Third Party Plug-in be removed.
Subject to these Terms, Treasure Data will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the unmodified Software as made available by Treasure Data and used in accordance with this Agreement infringes such third party’s copyright or misappropriate such third party’s trade secrets, and Treasure Data will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded against Customer or amounts paid by Customer in any final settlement entered into by Treasure Data. Customer agrees to defend Treasure Data against any claim, demand, suit, or proceeding made or brought against Treasure Data by a third party arising out of any actual or alleged breach of this Agreement by Customer and Customer will indemnify Treasure Data from any damages, reasonable attorney fees and costs finally awarded against Treasure Data or amounts paid by Treasure Data in any final settlement entered into by Customer. The party entitled to be indemnified under this Section 4 (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party") of any claims. The Indemnifying Party reserve the right to assume exclusive defense and control of any matter which is subject to indemnification under this Section 4, in which case the Indemnified Party agrees to cooperate with any reasonable requests to assist in the defense of such matter. The Indemnified Party may participate in the defense at its own cost and through its own counsel. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any claim in any manner that would adversely affect the rights or interests of the other party without the prior written consent of the other party, which will not be unreasonably withheld or delayed.
During the Subscription Term and for one (1) year thereafter, Treasure Data or its designated agent may inspect Customer’s facilities and records to verify Customer’s compliance with the Agreement and this Order Form (including the applicable usage limits). Any such inspection will take place only during Customer’s normal business hours and upon no less than ten (10) days prior written notice from Treasure Data. Treasure Data will give Customer written notice of any non-compliance and Customer will have fifteen (15) days from the date of this notice to make payment to Treasure Data for any overage or excess use of the Enterprise Subscription identified. If Customer underpays Treasure Data by more than five percent (5%), Customer will also reimburse Treasure Data for the costs of such inspection.
6. PAYMENT TERMS
6.1 Fees. Customer will pay Treasure Data the fees for the Enterprise Subscription (“Subscription Fees”) in accordance with the Order Form. Treasure Data will make certain payment methods available to Customer, at its sole discretion. All amounts are payable in U.S. dollars and will be due within thirty (30) days of the billing date, unless otherwise set forth in the Order Form. Except as expressly provided herein, all payment obligations are non-cancelable and all Subscription Fees and other amounts paid are non-refundable. Treasure Data may assess a late charge if Customer does not pay the Subscription Fees on time. The late charge will be the lesser of one and a half (1.5%) percent of the unpaid amount each month or the maximum rate permitted by law. Customer will reimburse Treasure Data for all costs Treasure Data incurs in connection with its effort to collect any past due amounts, including attorneys' fees and other related expenses. Treasure Data may suspend the Enterprise Subscription or terminate this Agreement if Customer fails to pay the Subscription Fees in full and on time.
6.2 Taxes. Subscription Fees are exclusive of all taxes. Customer will be responsible for all taxes related to the Subscription Fees or Customer’s use of the Enterprise Subscription, excluding taxes based on Treasure Data's net income.
7. PROPRIETARY RIGHTS
7.1 Ownership. Treasure Data and its suppliers retain all right, title and interest, in and to the Enterprise Subscription (including the Software), its trademarks, its Confidential Information, and the Feedback, including all intellectual property rights therein. In no event will Customer contest or dispute Treasure Data’s exclusive ownership rights in the foregoing. Other trademarks, service marks, and trade names that may be used on or in connection with the Enterprise Subscription are the property of their respective owners. Customer will retain all right, title and interest, in and to Customer’s trademarks, and Customer’s Confidential Information, including all intellectual property rights therein.
7.2 Feedback. Treasure Data welcomes Customer’s suggestions or feedback on how to improve the Enterprise Subscription. If Customer provides any ideas, suggestions or recommendations to Treasure Data regarding the Enterprise Subscription ("Feedback"), Treasure Data shall be free to retain, use and incorporate such Feedback in its products and/or services, without payment of royalties or other consideration to Customer.
8.1 Confidential Information. "Confidential Information" means any and all confidential or proprietary information and data of one party (the "Disclosing Party") disclosed to the other (the "Receiving Party") in connection with this Agreement, which is identified or should be reasonably understood to be confidential. Treasure Data's Confidential Information includes the Software, Support Services, Documentation, and all other applications, tools, and technical information made available to Customer in connection with the Enterprise Subscription. Confidential Information of each Party includes this Agreement, as well as any Order Forms and Statements of Work and all business and marketing plans, technology and technical information, product plans and designs, roadmaps, specifications, and other similar information disclosed by a Party. Confidential Information does not include any information which:
- is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party in breach of this Agreement;
- was within the Receiving Party's possession prior to its disclosure to it by or on behalf of the Disclosing Party;
- becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party not under obligation to keep such information confidential; or
- is developed independently by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
8.2 Protection of Confidential Information. Protection of Confidential Information. The Receiving Party agrees to
- protect the Confidential Information using the same degree of care that it uses to protect its own Confidential Information of like kind, but in no event less than reasonable care;
- not to use the Confidential Information for any purpose outside of this Agreement; and
- not to disclose the Confidential Information to any third party other than its contractors and agents who have a need to know and are bound by confidentiality obligations no less restrictive than this Agreement.
In the event that a Receiving Party becomes legally compelled to disclose any Confidential Information provided pursuant to this Agreement, such Receiving Party shall provide the Disclosing Party with prompt written notice (to the extent it is legally permitted) so that such Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement.
9.1 Mutual Warranties. Each party represents and warrants to the other party that:
- it has all authority to enter into this Agreement; and
- its acceptance of this Agreement, and the performance by such party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such party is a party or by which it is otherwise bound.
9.2 Treasure Data Warranties. Treasure Data warrants that
- during the Subscription Term, the Support Services and Consulting Services will be performed in a professional and workmanlike manner; and
- the Software will perform materially in accordance with the applicable Order Form and Documentation, under normal use and circumstances.
Customer must timely and properly report any issues with the Support Services and/or Software to Treasure Data so that Treasure Data may have the opportunity to research and resolve such issues. For any breach of an above warranty, Customer’s sole and exclusive remedies are those set forth in Section 11.3 (Termination for Cause) and Section 11.4 (Effect of Termination).
9.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 9.2 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TREASURE DATA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE ENTERPRISE SUBSCRIPTION, SOFTWARE, TOOLS, DOCUMENTATION, REPORTS, AND ANY OTHER SOFTWARE OR MATERIALS THAT TREASURE DATA MAY MAKE AVAILABLE DURING THE SUBSCRIPTION TERM. TREASURE DATA DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT TREASURE DATA IS PROVIDING SOFTWARE AND SUPPORT SERVICES THAT ARE INTENDED ONLY TO ASSIST CUSTOMER IN OPERATING CUSTOMER’S OWN BUSINESS AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR (AND TREASURE DATA ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) WITH RESPECT TO THE DECISIONS MADE BASED ON CUSTOMER’S USE OF THE SOFTWARE, SUPPORT SERVICES, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTEPRISE SUBSCRIPTION IS PROVIDED “AS IS” AND “AS AVAILABLE.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
- IN NO EVENT WILL EITHER PARTY, AND ITS OFFICERS, EMPLOYEES, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY OR ITS OFFICERS, EMPLOYEES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
- THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY, AND ITS OFFICERS, EMPLOYEES, AND SUPPLIERS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO TREASURE DATA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
THIS SECTION 10 SHALL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS OR CUSTOMER’S BREACH OF SECTION 2.2 (RESTRICTIONS).
11. TERM AND TERMINATION
11.1 Term. Unless earlier terminated in accordance with this Agreement, this Agreement shall continue until all subscriptions hereunder have expired or have been terminated (“Term”). The Subscription Term for a given subscription shall be as set forth in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the Subscription Term.
11.2 Termination for Convenience. Either party will have the right to terminate an Order Form for convenience upon thirty (30) days’ written notice subject to the plan level terms set forth on the Order Form, and provided that any termination for convenience by Customer shall not relieve Customer of Customer’s obligations to pay all Subscription Fees through the end of the Subscription Term of the outstanding Order Form(s).
11.3 Termination for Cause. Either party may terminate an Order Form and/or this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days from the date of written notice of breach by the non-breaching party. Notwithstanding the foregoing, non-payment of any Subscription Fees or other fees due to Treasure Data will be considered a material breach for which there will be no opportunity to cure. If Customer materially breaches this Agreement, Treasure Data may, without limitation of its other rights and remedies, suspend the Support Services, Consulting Services, and/or withhold further performance of its obligations under this Agreement. In addition, Treasure Data may immediately suspend the Support Services and/or terminate any and all Order Forms and this Agreement in event of any breach or threatened breach by Customer of the restrictions set forth in Section 2.2.
11.4 Effect of Termination. Effect of Termination. Upon termination or expiration of this Agreement for any reason, all licenses and other rights granted to Customer hereunder will immediately terminate and Customer will cease all use of the Software and Support Services. Upon termination of an Order Form and/or this Agreement by Customer pursuant to Section 11.3, Treasure Data will refund the unused portion of any pre-paid Subscription Fees. Upon termination of an Order Form and/or this Agreement by Treasure Data pursuant to Section 11.3, Customer will pay any unpaid Subscription Fees for the remainder of the Subscription Term of each terminated Order Form. Sections 2.2 (Restrictions), 5 (Verification), 6 (Payment Terms), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Limitation of Liability), 11 (Term and Termination), 12 (Governing Law; Venue), 13 (General), and 14 (Definitions) will survive the termination or expiration of this Agreement.
12. GOVERNING LAW; VENUE
This Agreement is to be construed in accordance with and governed by the laws of the State of California without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply, and is hereby expressly excluded. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in the federal and/or state courts, as applicable, in Santa Clara County, California.
Treasure Data may identify Customer as a customer of Treasure Data, including but not limited to using Customer’s company name and logo in its customer list, website, blog, social media pages, or any other marketing or promotional materials of any kind. If requested by Treasure Data, subject to each party’s prior review and approval as to content, Customer agrees to issue a joint press release with Treasure Data within three (3) months of Treasure Data’s request. 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 (which consent shall not 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 in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by this Agreement and all past due fees are paid in full. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise between the parties, and the parties will at all times be and remain independent contractors. Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earthquake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control. If any of the provisions of this Agreement are determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provisions will be deemed to be severed and struck from this Agreement, while the remaining provision(s) of the Terms continue in full force and effect and are enforced to the extent possible, consistent with the stated intention of the parties. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. This Agreement (including all Order Forms and SOWs) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof. Except as expressly provided in this Agreement, no amendment, or modification of this Agreement will be effective unless in writing and signed by a duly authorized signatory of each party.
“Documentation” means the online documentation that Treasure Data provides with the Enterprise Subscription, as may be updated from time to time.
“Node” means any virtual machine running an instance of the Software
“Software” means the enterprise edition of the fluentd software provided by Treasure Data pursuant to the applicable Order Form, and all Updates thereto.
“Subscription Term” means the term stated on the applicable Order Form.
“Support Services” means the technical support services provided by Treasure Data or its designee for the Software on a subscription-basis as described in the Order Form.
“Updates” means bug fixes, updates and/or enhancements to the Software provided by Treasure Data during the Subscription Term as part of the Enterprise Subscription.