Terms of Service
These Terms of Service (”Terms of Service”) are between ScaleFT, Inc. (”ScaleFT”) and either (i) the customer identified in the applicable Order Form into which this Agreement is incorporated, or (ii) the entity on behalf of which you are entering into and accepting these Terms of Service via ScaleFT’s ordering portal on its website (in each case, “Customer”). These Terms of Service and the Order Form or other online ordering document (“Online Ordering Document,” and together with the Order Form, the “Order”) are collectively, the “Agreement”. Capitalized terms used in these Terms of Services not otherwise defined herein have the meanings given to them in the Order Form or the Online Ordering Document, as applicable.
1. SERVICE OFFERING
(a) Access Grant. Upon Customer’s execution or acceptance of the applicable Order and payment of all required fees therein, ScaleFT grants Customer the right to access and use the Services ordered by Customer in such Order solely for Customer’s internal business purposes, subject to the terms set forth in this Agreement. This right is non-transferable and non-exclusive. ScaleFT reserves the right to modify or improve portions of the Services so long as Customer’s access and use of the Services is not materially adversely affected.
(b) Other Software. To the extent ScaleFT provides Customer any software, ScaleFT grants to Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to install, access, and use such software solely in connection with Customer’s access and use of the Services in accordance with this Agreement. Customer will promptly uninstall and destroy all copies of such software at the end of the applicable Subscription Term (defined below) for the Services, upon termination of the Agreement, or upon ScaleFT’s request, whichever is sooner.
(c) Necessary Equipment. Other than as may be provided by ScaleFT in its discretion, Customer will be solely responsible, at Customer’s expense, for acquiring, installing, and maintaining all connectivity equipment, hardware, software, and other equipment as may be necessary to connect to, access and use the Services. Customer will comply with ScaleFT’s then-current minimum hardware, equipment, and infrastructure requirements for access to and use of the Services that may be disclosed to Customer by ScaleFT.
(d) Restrictions on Use. In no event will Customer: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying trade secrets, ideas, or algorithms of any of the software comprising any part of the Services; (ii) lease, distribute, license, sell or otherwise commercially exploit any of the Services or make the Services available to a third party other than as contemplated in this Agreement, including but not limited to using the Services for timesharing, service bureau, or other similar purposes; (iii) use the Services on behalf of any third parties; (iv) tamper with other customer accounts of ScaleFT; (v) attempt to gain unauthorized access to the Services or its related systems or networks; (vi) access or use the Service for the purpose of developing a competing product or service; or (vii) permit anyone else, to engage, directly or indirectly, in any of the activities described in the foregoing subparts (i) through (vi). All the limitations and restrictions on use of the Services in this Agreement will also apply to any software and documentation that is part of or provided through the Service (together with the Services and Confidential Information (defined below), collectively, the “ScaleFT Materials”). ScaleFT may restrict or prohibit use of or access to the Services if Customer fails to make payment of fees when due or ScaleFT reasonably suspects that any use or access of the Services is or may be in breach of this Agreement.
(e) Customer Obligations. Customer will: (i) provide ScaleFT with all information and assistance required to provide the Services and enable Customer’s use of the Services; (ii) immediately notify ScaleFT of any unauthorized use, copying, distribution, or other suspected security breach in connection with the Services; (iii) not send to ScaleFT or otherwise use any data, information, materials or other content (”Customer Content”) in connection with the Services or this Agreement that is illegal, immoral, obscene, threatening, libelous, otherwise unlawful or tortious, otherwise protected by any intellectual property or proprietary right of any third party, or for which it does not own or has not procured sufficient license, right, consent and permission to copy, disclose, store, broadcast, transmit, or otherwise use in connection with the Services and this Agreement; (iv) be responsible for all activity that occurs in Customer’s or its users’ accounts (and any transactions completed under Customer’s accounts will be deemed to have been lawfully completed by Customer); and (v) be responsible for ensuring that it obtains all consents, permissions, and licenses for any and all Customer Content that is owned or controlled by third parties that Customer copies, discloses, stores, transmits, broadcasts or otherwise uses in connection with the Services.
(f) Managed Services. If Customer elects in the Order to have ScaleFT perform the Services as a managed SaaS offering through Customer’s designated hosting service provider (the “Managed Services”), then (i) Customer will grant ScaleFT, and ScaleFT’s ability to provide the Managed Services will be contingent on Customer providing ScaleFT, all account access, administrative permissions, login credentials and other requirements requested by ScaleFT to provide the Managed Services, and (iii) Customer will be responsible for all costs and expenses imposed by such Customer designated hosting service provider.
(a) Fees and Expenses. Customer will pay ScaleFT the fees set forth in the Order when due and pay and reimburse ScaleFT all expenses (e.g., costs and expenses related to ScaleFT’s provision of the Managed Services) incurred by ScaleFT in connection with performing ScaleFT’s obligations under this Agreement. Unless otherwise stated in the Order, Customer will make all payments within 30 days of the date of ScaleFT’s invoice. Customer agrees that any billing discrepancies or disputes not brought to the attention of ScaleFT within 60 days from when such amounts were originally due will be waived and the invoiced amount will be deemed to be correct. Customer’s obligation to pay any amounts due in accordance with this Agreement will not be delayed or excused during any dispute related to this Agreement.
(b) Taxes. Customer will be responsible for all sales, use, value added, withholding or other taxes or duties arising under or otherwise in connection with this Agreement, other than ScaleFT’s income taxes. If ScaleFT pays any such taxes on Customer’s behalf, Customer will promptly, but in no event more than 10 days after ScaleFT’s invoice to Customer, reimburse ScaleFT for such payment.
3. TERM; TERMINATION
(a) Term. The subscription period for the Services will be specified in the applicable Order, and if none is specified therein, then it will be for the length of time for which Customer has paid the applicable fees (the “Subscription Term”).
(b) Termination. Customer may terminate this Agreement at any time upon 30 days’ prior written notice to ScaleFT. ScaleFT may terminate this Agreement upon written notice if Customer materially breaches any provision of this Agreement.
(c) Suspension. ScaleFT may suspend the Services: (a) if ScaleFT considers it necessary to prevent or terminate any actual or suspected use of the Services in violation of this Agreement; or (b) upon notice to Customer if (i) Customer commits a material breach of this Agreement, (ii) ScaleFT reasonably determines that Customer’s use of the Services is in excess of the license metrics paid for by Customer in the Order, or (iii) if there is a threat to the security and integrity of the hosted environment for the Services. Suspension of Services will be without prejudice to any rights or liabilities accruing before or during the suspension, including Customer’s obligation to pay fees.
(d) Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) any fees, expenses and other amounts accrued and owed to ScaleFT prior to termination or expiration of this Agreement will be immediately due and payable; (ii) all Customer access to the Services and licenses granted will immediately terminate; and (iii) ScaleFT will have no obligation to maintain any Customer Content stored on behalf of Customer or to forward any Customer Content to any third party.
(e) Survival. The following Sections will survive termination of this Agreement: the second sentence of 1(b), 1(d), and 2 through 12.
4. CONFIDENTIAL INFORMATION
For the purposes of this Agreement, “Confidential Information” means any information disclosed by ScaleFT to Customer or its users, or any ScaleFT information, data, software, or other materials that, under the circumstances of disclosure, would be reasonably understood to be considered confidential, including technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, marketing plans, financial information, including but not limited to the ScaleFT Materials. Customer will: (i) hold in strict confidence all Confidential Information; (ii) use the Confidential Information only to perform or to exercise its rights under this Agreement; and (iii) not transfer, display, convey or otherwise disclose or make available such Confidential Information to any person or entity except to the directors, officers, employees, agents, contractors, accountants, auditors and legal and financial advisors of Customer who need to know such Confidential Information, who are under confidentiality obligations substantially similar as those set forth hereunder, and whose handling and treatment of the Confidential Information in accordance with this Agreement is Customer’s full responsibility. Customer will use at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like nature, but Customer will use at least reasonable care. Customer may disclose the Confidential Information in response to a valid court order, law, rule, regulation, or other governmental action provided that (x) Customer notifies ScaleFT in writing prior to disclosure of the information in order to provide ScaleFT a reasonable opportunity to obtain a protective order, and (y) Customer assists ScaleFT in any attempt to limit or prevent the disclosure of the Confidential Information. Customer will promptly notify ScaleFT in the event of any unauthorized use or disclosure of the Confidential Information. Customer agrees that ScaleFT may have no adequate remedy at law if there is a breach or threatened breach of this Section 4 and, accordingly, that ScaleFT will be entitled to injunctive or other equitable relief to prevent or remedy such a breach in addition to any legal remedies available to ScaleFT. The obligations in this Agreement with respect to Confidential Information will not apply to any information that would otherwise constitute Confidential Information but that which: (i) is publicly known and made generally available in the public domain without breach of any obligation of confidentiality or restriction on disclosure; or (ii) is in the possession of Customer without breach of any obligation of confidentiality or restriction on disclosure at the time of disclosure by ScaleFT.
ScaleFT will own all intellectual property and other rights in and to the ScaleFT Materials. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any right or license to such rights, whether by estoppel, implication or otherwise, and Customer acknowledges that it has no ownership interest in the ScaleFT Materials, or any derivatives, modifications, upgrades, updates, new versions, fixes, improvements or enhancements thereof or thereto. Customer hereby assigns to ScaleFT any rights, title and interest, including all intellectual property rights, in any feedback, derivative works, modifications, enhancements, or improvements related to the ScaleFT Materials.
6. WARRANTIES; DISCLAIMER
(a) Customer Warranties. Customer represents and warrants that (i) it has the full corporate power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it has the necessary rights to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement is a binding obligation upon it and, when executed by both parties, is enforceable in accordance with its terms; (iv) it will comply with all applicable laws, rules and regulations in the course of performing its obligations and exercising its rights under this Agreement; and (v) any Customer Content provided to ScaleFT or otherwise used by either party in connection with this Agreement will not infringe, misappropriate or otherwise violate any right of any third party.
(b) Disclaimer. ALL SERVICES (INCLUDING MANAGED SERVICES), SOFTWARE AND OTHER SCALEFT MATERIALS PROVIDED BY SCALEFT ARE PROVIDED TO CUSTOMER “AS-IS” AND SCALEFT MAKES NO, AND DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SCALEFT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR MANAGED SERVICES WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS OR IN A SECURE MANNER. THE SERVICES (INCLUDING MANAGED SERVICES) MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SCALEFT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY LOSS OF DATA OR DAMAGES RESULTING THEREFROM. THE SERVICES (INCLUDING MANAGED SERVICES) MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS AND RELY ON THEM TO PERFORM CERTAIN FUNCTIONALITY IN CONNECTION WITH THE SERVICES. SCALEFT MAKES NO WARRANTY AS TO THE OPERATION OF ANY THIRD PARTY PRODUCTS OR THE ACCURACY OF ANY THIRD PARTY INFORMATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SCALEFT OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
Customer will defend, indemnify, and hold harmless ScaleFT, its affiliates, subsidiaries, and parent companies, together with each of their respective officers, directors, members, employees, agents, contractors, representatives, successors and assigns (each, a “ScaleFT Indemnitee”) against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees or expenses of whatever kind, including reasonable attorneys’ fees, professional fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, which are incurred by any ScaleFT Indemnitee arising out of any third party claim, demand, allegation, investigation, or other proceeding made in connection with or otherwise related to Customer’s breach of any representation, warranty or covenant in this Agreement.
8. LIMITATION OF LIABILITY
(a) Customer Responsibility. The failure or delay of ScaleFT in its performance of its obligations under the Agreement is excused to the extent such failure is a result of: (i) any act or omission of Customer or any entity or individual acting on Customer’s behalf, including Customer’s failure to perform (or cause to be performed) its obligations hereunder; (ii) unavailability of Customer’s materials or systems, including those provided by third parties; (iii) the reliance of ScaleFT on instructions, authorizations, approvals or other information from Customer’s representative(s); or (iv) any act or omission of a third party not under the control of ScaleFT. ScaleFT will use commercially reasonable efforts to provide the Services notwithstanding such circumstances, and Customer will reimburse ScaleFT for any additional charges and expenses incurred as a result thereof.
(b) Limitation and Disclaimer. IN NO EVENT WILL SCALEFT (OR ITS SUPPLIERS OR AFFILIATES) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, LOST PROFIT OR OTHER SIMILAR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SCALEFT’S TOTAL AGGREGATE LIABILITY FOR DAMAGES OF ANY NATURE UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO SCALEFT UNDER THE APPLICABLE ORDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. IN NO EVENT WILL SCALEFT HAVE ANY LIABILITY ARISING OUT ANY OF CUSTOMER CONTENT PROVIDED TO SCALEFT IN CONNECTION WITH THE SERVICES HEREUNDER.
9. MANDATORY ARBITRATION
The parties consent to arbitrate any claim, dispute or controversy (each, a “Claim”) arising out of relating to this Agreement or the relationships among the parties hereto through binding arbitration administered by the American Arbitration Association (”AAA”). The parties will notify each other in writing of any Claim within 30 days of when it arises. Notice to ScaleFT will be sent 120 2nd St #200, San Francisco, CA 94105, Attention General Counsel. The parties further agree: (i) to attempt informal resolution of the Claim prior to any demand for arbitration; (ii) that any arbitration will occur in San Francisco County, California; (iii) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association; and (iv) that the state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals of an arbitration award. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. However, the preceding sentence will not apply to the Section entitled “Class Action Waiver” immediately below. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
10. CLASS ACTION WAIVER
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction in San Francisco County, California, and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
11. EXPORT CONTROLS
Customer will comply with all export and re-export restrictions and regulations imposed by the government of the United States and other relevant countries or regions (”Export Restrictions”). Customer will not transfer, directly or indirectly, any restricted software or technical data received hereunder or the direct product of such data, to any country or region identified as an embargoed destination or country in the Export Restrictions, unless prior written authorization is obtained from ScaleFT and each appropriate United States or other government agencies.
This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. Any amendment to this Agreement must be in writing and signed by the authorized representatives of the parties. Except for payment obligations, each party will be excused from performance of its obligations under this Agreement if such a failure to perform results from acts beyond its reasonable control. Customer may not assign this Agreement, by merger (including operation of law), transfer of equity, other change of control or otherwise, and any attempt to do so is null, void and of no effect. All notices required under this Agreement will be in writing and sent by express mail or other overnight delivery service providing receipt of delivery to the address set forth in the Order, with notice effective upon delivery. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right. If any portion of this Agreement is held invalid, illegal or unenforceable, such determination will not impair the enforceability of the remaining terms and provisions herein.