Last modified: January 28, 2021
PLEASE READ THIS SUPPORT AGREEMENT BEFORE PURCHASING OR USING THE SUPPORT. BY USING OR PURCHASING THE SUPPORT, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN CUSTOMER MUST NOT PURCHASE OR USE THE SUPPORT.
This Support Agreement (“Agreement”) is by and between Pyroscope, Inc., a Delaware corporation with its principal place of business at 2261 Market Street #4078, San Francisco, CA 94114 (“Pyroscope”) and the customer (“Customer”) identified on an order form (“Order Form”) entered into between the parties and is effective as of the date Pyroscope signs the Order Form (“Effective Date”).
Subject to the terms of this Agreement, Pyroscope will provide Customer support services (“Support”) for which Customer has paid the applicable fees as set forth on an Order Form. Support is only for Customer’s internal use for the environment(s) listed in an Order Form. Customer may not use the Support to supply any services to any third party or for any environments for which Customer has not paid the applicable fees for support. Pyroscope will provide Customer with Support in accordance with the applicable support policy available on its website, currently at https://pyroscope.io/support-policy.
Customer will pay to Pyroscope the fees and other compensation set forth in each Order Form. In addition, Customer agrees to pay amounts equal to any Federal, state or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to this Agreement, exclusive of taxes based on Pyroscope’s net income. Customer will pay the invoiced amount in full within ten (10) days of the date of each invoice, without deduction, setoff, defense or counterclaim for any reason, unless otherwise stated in the Order Form. All payments are nonrefundable. Customer will pay interest, at a rate equal to one percent (1%) per month on any undisputed amount that remains unpaid thirty (30) days after the date of the invoice. Pyroscope shall have the right to suspend the provision of Support if any invoice remains unpaid thirty (30) days after the date of the invoice.
Customer acknowledges that as part of performing the Support, Pyroscope personnel may utilize proprietary software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge, data or other materials which have been originated or developed by the personnel of Pyroscope or its Affiliates or by third parties under contract to Pyroscope to develop same, or which have been purchased by, or licensed to, Pyroscope (collectively, “Pyroscope Proprietary Intellectual Property”). Pyroscope Proprietary Intellectual Property includes, but is not limited to, any new or improved methodologies or tools developed by Pyroscope during the provision of Support under this Agreement. Customer agrees that Pyroscope Proprietary Intellectual Property is the sole property of Pyroscope (or its licensor) and that Pyroscope (or its licensor) will at all times retain sole and exclusive title to and ownership thereof. Except as expressly provided above, nothing contained in this Agreement or otherwise will be construed to grant to Customer any right, title, license or other interest in, to or under any Pyroscope Proprietary Intellectual Property. Notwithstanding the above, Customer agrees that Pyroscope, its employees and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Support performed under this Agreement.
4. Confidential Information
The term “Confidential Information” will mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the efforts contemplated under this Agreement, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any related information, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, Customer and Pyroscope will each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own confidential information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any Order Form; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. Each party will disclose the Confidential Information of the other only to those of its employees and contractors having a need to know such Confidential Information and will take all reasonable precautions to ensure that such employees and contractors comply with the provisions of this section. Each party shall be liable for all violations of this Agreement by its employees and contractors. The obligations of either party under this section will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the other party. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it; provided that the Receiving Party gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy, discloses only such Confidential Information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed.
5. Warranty and Liability
5.1 Limited Warranty. Pyroscope warrants the following for a period of thirty (30) days following delivery (the “Warranty Period”): the applicable Support rendered under this Agreement will be performed by qualified personnel and the Support performed will substantially conform to any applicable requirements set forth in the Order Form.
5.2 Remedies. Pyroscope does not warrant that the Support will be provided timely, secure, uninterrupted or error-free, provided that Pyroscope will remain obligated pursuant to this Section. Pyroscope makes no warranty that Support will meet users’ expectations or requirements. If any Support fails to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Customer will be for Pyroscope, at its expense, to promptly use commercially reasonable efforts to cure or correct such failure. The foregoing warranty is expressly conditioned upon (i) Customer providing Pyroscope with prompt written notice of any claim thereunder prior to the expiration of the applicable Warranty Period, which written notice must identify with particularity the non-conformity; and (ii) Customer’s full cooperation with Pyroscope in all reasonable respects relating thereto.
5.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, PYROSCOPE DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
6.1 No Employee Relationship. Pyroscope’s employees are not and will not be deemed to be employees of Customer. Pyroscope will be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Pyroscope’s personnel. Pyroscope’s employees will not be entitled to any benefits paid or made available by Customer to its employees.
6.2 Subcontractors. Pyroscope may engage third parties to furnish services in connection with the Support, provided that such third parties have executed appropriate confidentiality agreements with Pyroscope. In addition, Support may be performed by Affiliates of Pyroscope. No engagement of a subcontractor will relieve Pyroscope from any of its obligations under this Agreement.
6.3 Non-Solicitation. Customer may not hire, or directly or indirectly solicit or employ, any employee of Pyroscope for twelve (12) months after the termination of this Agreement; provided, however, that nothing contained in this Agreement will prevent Customer from hiring any such employee who responds to a general hiring program conducted in the ordinary course of business or who approaches Customer on a wholly unsolicited basis.
7. Term and Termination
The term of this Agreement will commence on the Effective Date and will remain and continue in effect, unless sooner terminated as provided under this Agreement. This Agreement may be terminated in whole or in part by either party (the “Non-Breaching Party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “Breaching Party”): (i) the Breaching Party commits a material breach of any of its obligations under this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach or fails to reach an agreement with the Non-Breaching Party regarding the cure thereof; or (ii) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors. Upon termination, Pyroscope will be entitled to recover payment for all Support rendered through the date of termination. In the event of termination or upon expiration of this Agreement, Sections 2, 3, 4, 5.3, 6, 7, 8 and 9 will survive and continue in full force and effect.
8. Limitation of Liability
UNDER NO CIRCUMSTANCE WILL PYROSCOPE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF it HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PYROSCOPE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9. General Provisions
9.1 Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that (i) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. Affiliate means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
9.2 This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Support to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties, except as expressly permitted in Section 9.3.
9.3 Pyroscope reserves the right to alter the terms of this Agreement at any time. Customer agrees to review the latest version of the Agreement on Pyroscope’s website periodically to remain aware of any modifications to the Agreement about which Customer is not notified by Pyroscope. The Agreement available on the website will be dated so as to make clear what version is currently in force. Any use of Support after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer’s sole remedy should Customer not agree with the altered Agreement shall be to cease Customer’s use of Support and to comply with Customer’s termination obligations outlined in Section 7 of this Agreement.
9.4 Either Party may identify the other as a user or customer, as applicable, and may use the other’s name and logo in Customer or vendor lists, press releases, blog posts, advertisements, and on their respective websites.
9.5 This Agreement will be governed by the laws of the State of California, without reference to the principles of conflicts of law. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All Support services are Commercial Items as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101.
9.6 The parties will attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in Alameda County, California. Any litigation related to this Agreement shall be brought in the state or federal courts located in Alameda County, California, and only in those courts and each party irrevocably waives any objections to such venue. All written notices must be in writing and will be effective three (3) days after the date sent to the addresses shown on the applicable Order Form.
9.7 If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
9.8 No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Pyroscope and Customer and do not create any right in favor of any third party.