Last modified: April 3, 2023
Raintank, Inc. dba Grafana Labs, on behalf of itself and its Affiliates (including Pyroscope, Inc.) (individually, and collectively, as applicable, “Pyroscope”, “we”, “us”, or “our”), a Delaware corporation, offers certain Cloud Services to persons or entities (“you”, “your” or “Customer”) according to the terms and conditions in this Master Services Agreement (“Agreement”). For purposes of clarity, all references in this Agreement (and any attachments, or documents referenced and/or incorporated herein by reference) to “Pyroscope, Inc.” and “Pyroscope” refer to Raintank, Inc. dba Grafana Labs as the contracting entity, on behalf of itself and its Affiliates (including Pyroscope, Inc.).
1. Your Agreement With Pyroscope
1.1 Services. You may access or use the Cloud Services in accordance with this Agreement. “Cloud Services” means the Pyroscope-branded continuous profiling offering(s) available on a hosted basis as software as a service through the Site, and purchased by Customer under one or more Orders.
1.2 Access. By accessing or using the Cloud Services, or by creating an account to use the Cloud Services, you agree to this Agreement. If you represent an organization or entity, you represent and warrant that you are authorized to agree to this Agreement on behalf of your organization, and you agree that you are legally binding that organization to this Agreement. If you do not agree to this Agreement, do not use the Cloud Services.
1.3 Additional Features or Services. The Cloud Services may include features or services that have separate rules specific to the feature or service. You will comply with all laws, rules, and regulations applicable to the use of the Cloud Services and any additional feature or service you use. You understand and agree that we may change, suspend, or discontinue any part or all of the Cloud Services. We will notify you of any material discontinuation of the Cloud Services by email or via our Site.
1.4 Effective Date. The Effective Date of this Agreement is the earliest to occur on the effective date of your initial Order, the date you execute these Terms, or the date you first access or use the Cloud Services.
1.5 Definitions. Certain terms not defined elsewhere in this Agreement are set forth in Section 16.
2. Your Account and Content
2.1 Registration. To register to use the Cloud Services, you must create an account with an email address, password, and other information. You must provide complete and accurate information during the registration process and will update your information to ensure it remains accurate. You are responsible for all activities in your account, regardless of whether undertaken by you, your employees, or a third party (including contractors or agents), and we and our affiliates are not responsible for unauthorized access to your account.
2.2 Your Use and Content. You represent and warrant to us that (a) you have all rights in the Content necessary to grant the rights contemplated by this Agreement; and (b) none of the Content violates this Agreement, any applicable law or any third party’s intellectual property or other right. You will ensure that the Content, and your use of it, complies with this Agreement, including Section 5 (Acceptable Use Policy), and any applicable law. You are responsible for properly configuring and using the Cloud Services and taking your own steps to maintain appropriate security, protection, backups, and continuity of the Content.
2.3 User and Performance Data. Pyroscope may store, process, and use data about Customer’s use of the Cloud Services, including but not limited to for the purposes of creating usage, statistics, and analytics data. Pyroscope may use such data for its own business purposes, including to maintain and improve the Cloud Service and other services and products, to monitor and analyse its activities in connection with the performance of such services, and to create anonymized statistics for its marketing purposes.
3. Cloud Services
3.1 Subject to Customer’s compliance with the terms and conditions of this Agreement, we grant you a limited, world-wide, non-exclusive, non-transferable right and license (without right to sublicense) to access and use the Cloud Services during the applicable Subscription Term and in the quantities specified on the applicable order solely for your internal business purposes.
3.2 Pyroscope will provide the Cloud Services to the Customer substantially as set out in this Agreement. The scope of the Cloud Services is not fixed, but may vary depending on which Cloud Services the Customer chooses to order from time to time, selected from the Cloud Services made available by Pyroscope. Pyroscope will have the right to make changes to the Cloud Services at any time.
3.3 The Customer may, from time to time, make orders from Pyroscope, including automatically by using APIs of the Cloud Services or through the Site. The Customer shall be responsible for any orders made under the Customer’s account, whether by the Customer itself, by its authorized users, by the Customer’s data systems automatically, or by unauthorized access to or use of your account, and Customer shall be responsible for the payment of all fees based on orders made under the Customer’s account. No order made by the Customer is valid until accepted by Pyroscope. Pyroscope will be deemed to have accepted the order if it supplies the Cloud Services to the Customer. Pyroscope may place controls and restrict the Customer’s orders of the Cloud Services at its sole discretion.
3.4 We will make commercially reasonable efforts to make the Cloud Services available to you. If an outage to you is caused by an apparent failure in the Cloud Services, Pyroscope may provide you with free usage credits in recompense, but has no obligations to do soin such circumstances. Any credits we do pay will be in the form of Cloud Service usage credits and may not be exchanged for cash or other forms of payment. Such credits will be your sole remedy for interruptions or other failures in the Cloud Services. In case of a disagreement over the amount of the credits to be paid to you, Pyroscope’s decision on the issue will be binding and final. Events exempt from such credits consideration may include but are not limited to: (a) scheduled interruptions or planned downtime; (b) load caused on the systems by client queries or usage; (c) failures or termination of the virtual machines by the hosting providers used by Pyroscope to implement the Cloud Services; (d) unavailability caused by errors in third party software utilized by Pyroscope to implement the Cloud Services; € unavailability due to hostile actions by third parties such as denial-of-service attacks; and (f) unavailability due to circumstances beyond our reasonable control, including those specified in Section 15.10 (Force Majeure).
3.5 The Cloud Services are not subject to any particular service levels or service availability, and are provided to the Customer strictly on an “as is” and “as available” basis. Pyroscope makes no representation nor warrants the availability of the Cloud Services at any particular time. Any compensation set out in connection with such service availability shall be the Customer’s sole remedy and Pyroscope’s sole liability as regards any non-compliance with such service availability, and such non-compliance shall not constitute a breach of this Agreement.
3.6 Pyroscope will maintain reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of the Content that are no less protective than the security standards with which Pyroscope processes and stores its own information of a similar type.
3.7 Pyroscope may use subcontractors in the performance of its obligations and exercise of its rights under this Agreement.
3.8 Pyroscope may make available to Customer certain features, technologies, products, software, and services that are not yet generally available, which may be labeled or otherwise described as in “preview”, “pre-release”, “early access”, “experimental”, “testing”, “pre-production”, “alpha”, or “beta” (each, a “Beta Offering”), for the purpose of evaluating performance, identifying defects, and obtaining feedback. We have no obligation to release a final version of any Beta Offering, nor offer upgrades or migrations between versions of the Beta Offering or between a Beta Offering and a generally available version. Notwithstanding anything to the contrary in the Agreement, after suspension or termination of Customer’s access to or use of any Beta Offering for any reason, Customer may not have any further right to access or use the applicable Beta Offering, and any Content stored in or processed by the Beta Offering may be deleted or inaccessible.
3.9 Pyroscope may provide Support Services for the Cloud Service. If Customer does not purchase a different level of Support Services under an Order, Pyroscope may provide a “basic” or “free” level of Support Services. If you purchase Support Services, we will provide these Support Services in accordance with the applicable Support Agreement, currently available at https://pyroscope.io/support-agreement, and which may be modified from time to time. By purchasing Support Services, you accept and agree to be bound by the terms of the Support Agreement.
4. Your Obligations
4.1 The Customer will be solely responsible for its compliance with this Agreement, including any breach of this Agreement by Customer. The Customer must use the Cloud Services in accordance with Section 5 (Acceptable Use Policy), and will be solely responsible for ensuring its adherence to this policy.
4.2 The Customer may authorize users to use the Cloud Services under the Customer’s account, including for the purposes of accessing the Customer’s Content. The Customer must ensure that any users it authorizes to use the Cloud Services under the Customer’s account comply with this Agreement at all times, including in accordance with Section 5 (Acceptable Use Policy). The Customer will be responsible for any use of the Cloud Services under the Customer’s account and any use by its authorized users, including any breach of this Agreement.
4.3 The Customer will be responsible for its own devices, systems, applications, connections, and software used to access the Cloud Services. The Customer will be responsible for the protection of its data communications and data systems, and for the costs for communications and other comparable costs related to use of the Cloud Services.
4.4 The Customer must use commercially reasonable efforts to prevent unauthorized access to or use of its account, including ensuring that its authorized users maintain their access credentials (e.g., usernames, passwords, multi-factor authentication information, etc.) in a responsible manner. The Customer and its authorized users must not disclose their access credentials to any unauthorized persons. The Customer must contact us immediately if it believes any unauthorized activity has occurred in its account or any of its account information has been lost, compromised, or revealed to a third party. The Customer and its authorized users must change their access credentials upon request by Pyroscope.
5. Acceptable Use Policy
5.1 You must not (a) modify, alter, tamper with, repair, or create derivative works of any software included in the Cloud Services; (b) reverse engineer, disassemble, or decompile the Cloud Services or apply any other process or procedure to derive the source code of any software included in the Cloud Services; (c) use the Cloud Services in connection with any fork or derivative work of Pyroscope Software, unless otherwise explicitly authorized by Pyroscope in writing; or (d) resell, sublicense, rent, or lease the Cloud Services to any third party, unless otherwise explicitly authorized by Pyroscope in writing.
5.2 You must not (a) disable, interfere with, or circumvent any aspect of the Cloud Services; (b) attempt to disable or circumvent any security mechanisms used by the Cloud Services; (c) perform any security penetration tests or security assessment activities, unless otherwise explicitly authorized by Pyroscope’s Head of Operations or Information Security in writing; (d) access or use the Cloud Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (e) use the Cloud Services, or any interfaces provided with the Cloud Services, to access any other product or service of Pyroscope or its subcontractors in a manner that violates their applicable terms of service; (f) use the Cloud Services in a way that poses a risk to the Cloud Services or any third party; or (g) interfere with the use of the Cloud Services, or the equipment used to provide the Cloud Services, by others.
5.3 You must not use the Cloud Services (a) to violate, or encourage the violation of, the legal rights (including without limitation Intellectual Property Rights) of others; (b) to engage in, promote, or encourage any illegal activity; (c) for any unlawful, invasive, infringing, defamatory, offensive, harmful, or fraudulent purpose; (d) to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; (e) to violate security or integrity of any network, computer, communications system, software application, or service (such violations to include without limitation unauthorized access, interception of data or traffic, or falsification of origin); (f) to make connections to any users, hosts, or networks unless the Customer has permission to communicate with them (such network abuses to include without limitation monitoring or crawling, denial of service attacks, intentional interference, operating open proxies, open mail relays or open recursive domain name servers, or to avoiding system restrictions); (g) to generate, distribute, publish, or facilitate unsolicited or unlawful email or other messages, or promotions or other solicitations of any kind; or (h) for hazardous or mission-critical circumstances or for uses requiring fail-safe performance, or where failure could lead to death, personal injury, or environmental damage, and you further acknowledge that the Cloud Services are not designed or intended for such use and Pyroscope bears no responsibility for any harmful impact resulting from such use.
5.4 You must not submit, store, or process Content in the Cloud Services that (a) is illegal, harmful, fraudulent, infringing, offensive, or in violation of privacy rights; (b) violates this Agreement, any application law, or any third-party’s Intellectual Property Rights or other rights; (c) constitutes protected health information; or (d) entails cardholder or sensitive authentication data unless such data is message-level encrypted by you.
5.5 You must only use the Cloud Services in accordance with applicable laws and government regulations.
5.6 Pyroscope and its subcontractors may review the Customer’s use of the Cloud Services, including the Content and Customer’s data, to ensure compliance with the acceptable use policy, to discontinue any use by the Customer of the Cloud Services, and to remove any non-compliant data of the Customer. Pyroscope and its subcontractors may report suspected infringing activities to officials, regulators, or other appropriate third parties, including the disclosure of appropriate information regarding the Customer.
5.7 If the Customer becomes aware that its use of the Cloud Services does not comply with this Agreement, the Customer must immediately cease its non-compliant use of the Cloud Services. The Customer must immediately comply with any requests of Pyroscope relating to the ceasing of any non-compliant use of the Cloud Services.
6. Orders, Fees, And Payment
6.1 Orders Generally. All Orders are subject to the terms of this Agreement and are not binding until accepted by Pyroscope. Orders created by Customer through the Cloud Service are deemed accepted when Pyroscope provides access to the service environment selected by Customer. All Orders are non-cancelable and non-refundable except as expressly provided in this Agreement.
6.2 Fees and Payment. The Customer must pay Pyroscope all fees incurred for its usage of the Cloud Service and any additional fees specified in Orders. Unless agreed otherwise in a written Order between the Parties, Customer’s use of the Cloud Service is subject to the fee schedule specified by the Site, and the fees will be calculated and billed monthly. If you choose monthly billing by credit card, you authorize a recurring monthly charge to your credit card based on our current fee schedule for the Cloud Services and any additional fees specified in Orders, and you must pay us the applicable fees and charges using your credit card. If paid by credit card, all amounts payable to Pyroscope under this Agreement are due and must be paid within one (1) day from the end of a billing cycle by Customer. If we send a separate invoice for payment rather than use credit card processing, all amounts payable to Pyroscope under this Agreement are due and must be paid within fourteen (14) days from the date of invoice by Customer. All amounts paid are non-cancelable and non-refundable. Fees are stated in United States Dollars, and must be paid in United States Dollars. For purposes of clarity, should Customer use more Cloud Services than is specified on the applicable Order, Customer will promptly purchase sufficient licenses to cover such usage subject to license fees reflecting the duration of such usage.
6.3 Taxes. All rates and fees are set out without value added tax (VAT) or any other applicable sales tax, which may be added to the fees of your bill or invoice in accordance with the then-applicable tax laws and regulations, and you must inform us of your correct location to assist with determining the appropriate tax. Customer is otherwise responsible for and will pay all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement, excluding only taxes based on Pyroscope’s net income. If Customer is compelled to make a deduction or set-off for any such taxes, Customer must pay Pyroscope such additional amounts as necessary to ensure receipt by Pyroscope of the full amount Pyroscope would have received but for the deduction.
6.4 Credit Card Processing. For Orders that require payment by credit card, Pyroscope uses a third-party credit card processing service to process payments. Customer consents to the use of such service and to the transfer of Customer’s credit card details (including any personal data contained therein) to such third-party processors. Customer agrees to be bound by any separate terms applicable to the processing service. Customer’s credit card will be charged fees automatically for Customer’s use of the Cloud Services at the end of each billing cycle. Currently, this third-party credit card processing service is Stripe, Inc. (https://stripe.com/); the Customer is familiar and agrees to be bound by any third-party terms applicable to the Stripe service.
6.5 Late Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full.
6.6 Changes to Fee Schedules. We may change the fee schedule for a Cloud Service, including by increasing fees or charges, by updating the Site. In the event that we change the fee schedule for the Cloud Services, the fees payable by you will increase or decrease in accordance with any such modification upon the date specified by the Site. You are deemed to accept the new fee schedule, and be responsible for any fees incurred under the new fee schedule, by continuing to use the Cloud Services after the specified date.
7. Suspension And Discontinuation Of Service
7.1 Pyroscope may suspend the Cloud Services immediately for a reasonable period of time in order to perform installation, change, or maintenance work to the Cloud Services, including by itself or by the network or hosting providers or others used by Pyroscope to implement the Cloud Services.
7.2 Pyroscope may suspend, limit, or terminate the Customer’s access to or use of the Cloud Services, or may suspend, limit, terminate, or delete the Content and any Customer data and services, including any backups thereof, immediately (a) due to a data security risk to the Cloud Service; (b) we reasonably determine that your use of the Cloud Services poses a risk to the Cloud Services or to other users of the Cloud Services; (c) we change the way we provide or discontinue any Cloud Service; (d) if law or administrative order requires us to do so; (e) if we become aware of or reasonably suspect any activities of Customer or its authorized users that infringe on the policies set out in Section 5 (Acceptable Use Policy); or (f) if we become aware of or reasonably suspect the Cloud Services are used contrary to or for a purpose prohibited by this Agreement, applicable laws, or administrative orders.
7.3 Pyroscope may suspend, limit, or terminate the Customer’s access to or use of the Cloud Services or Support Services, or may suspend, limit, terminate, or delete the Content and any Customer data and services, including any backups thereof, immediately if (a) if the Customer does not pay in full the fees due under this Agreement by their due date; (b) Pyroscope has reasonable belief that the Customer will not pay in full the fees due under this Agreement by their due date; or (c) the Customer does not have a valid payment method associated with its account and is not within the term of a free trial. This suspension or limited access may continue until the Customer has paid all fees in full and/or has associated a valid payment method with its account. Pyroscope may notify you with warnings before and may notify you after it takes any such action.
7.4 Pyroscope may suspend, limit, or terminate the Customer’s access to or use of any Beta Offering, or may suspend, limit, terminate, or delete the Content and any Customer data and services associated with any Beta Offering, including any backups thereof, immediately at any time and for any reason.
7.5 The Customer understands that the Cloud Services are hosted by a third-party hosting provider used by Pyroscope to implement the Cloud Services. Such hosting providers may discontinue or modify their hosting at any time. Pyroscope is not liable in any way for any discontinuation or modifications of such services provided by hosting providers or other subcontractors.
7.6 If Pyroscope suspends, limits, or terminates the Customer’s access to or use of any portion or all of the Cloud Services, the Customer remains responsible for all fees incurred during the suspension and will not be entitled to any credit or refund.
8. Processing Personal Data
8.1 To the extent the Customer inputs any personal data to the Cloud Services (“Customer Personal Data”), Pyroscope processes such data on your behalf as the data processor, while the Customer is the controller of such data. Pyroscope shall process Customer Personal Data in accordance with the Customer’s instructions and applicable data protection legislation. The Parties agree that this Agreement includes the Customer's documented instructions to Pyroscope on processing of Customer Personal Data.
8.2 Pyroscope shall implement and maintain appropriate technical and organizational measures to ensure an appropriate level of security of the Customer Personal Data; such measures include implementing reasonable and sufficient confidentiality obligations. Pyroscope shall notify you without undue delay if we become aware of a data breach affecting Customer Personal Data.
8.3 Pyroscope shall assist you in complying with your obligations under applicable data protection laws, including assisting in responding to requests by data subjects and supervisory authorities to the extent reasonably necessary. Pyroscope will be entitled to charge for any reasonable costs and expenses incurred as a result of such assistance.
8.4 Customer acknowledges and agrees that we may retain our affiliates and other third parties to further process personal data on your behalf (as“Subprocessors“) in connection with the Cloud Services. We maintain a current list of our Subprocessors on the Site, currently available at https://pyroscope.io/subprocessors, and shall update the list with the addition or replacement of any Subprocessors.
8.5 Use of the Cloud Services may involve transfers of Customer Personal Data outside of the United States, European Union, or European Economic Area. The Customer will be solely responsible for ensuring that it has the right to transfer Customer Personal Data to the countries where the Cloud Services or the Subprocessor’s servers are located, including in particular transfers outside the European Economic Area. The Customer represents and warrants that it has obtained the necessary permits, authorizations, and consent to let Pyroscope process personal data in context of the Cloud Services as set out in this Agreement.
9. Intellectual Property Rights And Ownership
9.1 Pyroscope Rights. Pyroscope or its licensors retain all rights, title, and interest, including all Intellectual Property Rights, in and to the Cloud Services; the Pyroscope Software, including all related and underlying technology and documentation; and any derivative works, changes, corrections, bug fixes, enhancements, updates, modifications, or improvements of any of the foregoing (“Modifications”), and including any Feedback (collectively, the “Pyroscope Materials”). Except for the express limited rights set forth under this Agreement, no right, title, or interest in any Pyroscope Materials is granted to Customer. Customer acknowledges that the licenses granted in this Agreement do not include the right to prepare any Modifications of the Pyroscope Materials. Pyroscope reserves all rights not expressly granted in this Agreement. No rights are granted by implication.
9.2 Your Content. Except for the limited rights granted under this Agreement, as between Customer and Pyroscope, you retain all rights, title, and interest, including all Intellectual Property Rights, in the Content.
9.3 Feedback. You are not obligated to provide us with any suggestions, enhancement requests, recommendations, or other feedback about the Cloud Services, Pyroscope’s products and services, or otherwise (“Feedback”), but if you do, Pyroscope may freely use, incorporate, and modify such Feedback into Pyroscope Software, products, and services without any restriction or payment.
10.1 Confidential Information. Each party shall retain in confidence the Confidential Information disclosed or made available by the other party pursuant to this Agreement. For purposes of this Agreement, “Confidential Information” means any technical or business information disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Notwithstanding any failure to so designate it, the Pyroscope Materials are Pyroscope’s Confidential Information and Content is Customer’s Confidential Information.
10.2 Confidentiality Obligations. Each party shall (a) maintain the confidentiality of the other party’s Confidential Information using at least a reasonable degree of care; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose Confidential Information to any third party except to employees, subcontractors, and agent as is reasonably required in connection with this Agreement and who are subject to confidentiality obligations at least as protective as those set forth in this Section 10.
10.3 Confidentiality Limitations. The confidentiality obligations will not apply to any Confidential Information of the other party which (a) is now or hereafter becomes generally known or available to the public, through no act or omission on the part of the receiving party; (b) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (c) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by the receiving party without access to any Confidential Information of the disclosing party. The receiving party may disclose Confidential Information to the extent required by any law or regulation or by order of a court or governmental body of competent jurisdiction, provided that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice of such required disclosure in order to enable the disclosing party to prevent or limit such disclosure (“Permitted Disclosures”). Pyroscope will have no obligation under this Section 10 for any Content or other data that Customer transmits to the Cloud Service in breach of Section 5 (Acceptable Use Policy).
10.4 Other Confidentiality Terms. Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The provisions of this Section 10 shall supersede any non disclosure agreement by and between the Parties (whether entered into before, on, or after the Effective Date) that would purport to address the confidentiality and security of Content and such agreement shall have no further force or effect with respect to Content.
10.5 Injunctive Relief. Any breach or threatened breach of this Section 10 may cause irreparable harm to the disclosing party for which there is no adequate remedy at law. Therefore, the disclosing party will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law.
10.6 Confidentiality Period. The rights and obligations related to the Confidential Information shall survive the termination of this Agreement for a period of three (3) years from such termination.
11. Warranties And Disclaimers
PYROSCOPE DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CLOUD SERVICES, PYROSCOPE SOFTWARE, SUPPORT SERVICES, OR ANY MATERIALS PROVIDED HEREUNDER. PYROSCOPE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATION, WARRANTY, OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE. PYROSCOPE DOES NOT WARRANT THAT THE CLOUD SERVICES OR PYROSCOPE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
12.1 Customer Indemnification. Customer will defend Pyroscope and our affiliates and licensors from and against any third-party claim, demand, or lawsuit arising out of or relating to (a) your use of the Cloud Services (including any activities under your account and use by your employees and personnel) in breach of Section 5 (Acceptable Use Policy); (b) any breach of this Agreement or violation of applicable laws, rules, or regulations by you, including in connection with the Cloud Services; or (c) any Content or the combination of any Content with other applications, content, services, or processes, including any claim involving alleged infringement or misappropriation of Intellectual Property Rights or other third-party rights. Customer will pay any damages, costs, losses, and expenses (including reasonable legal fees) finally awarded against or associated with Pyroscope that are attributable to any such action, or for amounts paid by Pyroscope to settle such action. If we or our affiliates are obligated to respond to a third-party subpoena or other compulsory legal order or process, you will also reimburse us for reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the third-party subpoena or other compulsory legal order or process at our then-current hourly rates.
12.2 Pyroscope Indemnification. Pyroscope will defend Customer from and against any third-party claim, demand, or lawsuit arising out of the alleged infringement of a third party’s Intellectual Property Rights by (a) Pyroscope’s technology used to deliver the Cloud Services, and (b) any Pyroscope Software expressly licensed under an Order (together, the “Pyroscope Technology”), and Pyroscope will pay such damages or costs as are finally awarded against Customer or agreed to in settlement attributable to any such action. Pyroscope assumes no liability hereunder for any claim of infringement to the extent based on: (a) Content; (b) use of software other than a current, unaltered release of the Pyroscope Software, as provided by Pyroscope to Customer; (c) the combination, operation, or use of the Pyroscope Technology with equipment, devices, software, services, or data (including without limitation the Content) not supplied by Pyroscope, if a claim would not have occurred but for such combination, operation, or use; (d) any alteration or modification of the Pyroscope Software or Cloud Services by a party other than Pyroscope; (e) open source software; or (f) use of the Pyroscope Technology other than in accordance with the Documentation and this Agreement. In addition to Pyroscope’s indemnity obligations, if the Pyroscope Technology becomes, or in Pyroscope’s opinion is likely to become, the subject of an infringement claim, Pyroscope may at its sole option and expense and as Customer’s sole and exclusive remedy, either: (a) procure for Customer the right to use the allegedly infringing element of the Pyroscope Technology, at no charge to Customer; (b) replace or modify, in whole or in part, the Pyroscope Technology to make it non-infringing; or (c) terminate the applicable Order, and refund a pro rata portion of any fees pre-paid by Customer for the terminated Cloud Service. THIS SECTION SETS FORTH Pyroscope’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
12.3 Indemnification Procedures. Each party will provide the other with prompt notice of any claim. The failure of a party seeking indemnification (an“Indemnitee“) to provide prompt notice to the indemnifying party (an “Indemnitor”) relieves the Indemnitor of its obligation to defend and indemnify the Indemnitee only to the extent that the failure to provide notice materially harms the Indemnitor’s ability to defend the claim. The Indemnitor will have sole control of the defense (including selection of counsel) and settlement of the claim, provided any settlement releases Indemnitee from all liability. The Indemnitee will provide the Indemnitor, at Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim. The Indemnitee will preserve and will not waive legal, professional, or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
13. Limitation Of Liability
13.1 PYROSCOPE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR (TO THE EXTENT THE FOLLOWING ARE NOT CATEGORIZED AS THE FOREGOING EXCLUDED DAMAGES) FOR LOSS OF BUSINESS, CONTRACTS, REVENUE, PROFITS, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, USE, OR DATA, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE OR OTHER TORT, OR INTELLECTUAL PROPERTY INFRINGEMENT) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 PYROSCOPE AND OUR AFFILIATES AND LICENSORS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT,OR DIRECT DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE CLOUD SERVICES; (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 CLOUD SERVICES; (D) ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF, ALTERATION OF, DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA; OR (E) ANY ACT OR OMISSION OF A HOSTING PROVIDER.
13.3 PYROSCOPE AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO (A) THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE CLOUD SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM, OR (B) USD FIFTY THOUSAND DOLLARS ($50,000), WHICHEVER IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Term And Termination
14.1 Term. This Agreement commences on the Effective Date and will remain in effect until the earlier of: (i) ninety (90) days after termination or expiration of all Orders governed by this Agreement, or (ii) earlier terminated as provided below.
14.2 Subscription Term. The subscription term of the applicable Cloud Services will be specified on each Order (“Subscription Term”).
14.3 No Order in Effect. Either party may terminate this Agreement immediately by written notice if no Order is in effect. We may terminate a free or trial account at any time in our sole discretion.
14.4 Termination for Breach. Either party may terminate this Agreement, any Order, or any other document specifically incorporated herein by reference: (i) immediately upon written notice if the other party commits a non-remediable material breach of this Agreement; or (ii) if the other party fails to cure any remediable material breach of this Agreement within thirty (30) days of being notified in writing of such breach, unless such breach is for non-payment and then within five (5) days of such notice.
14.5 Effect of Termination. Termination or expiration of an Order shall not constitute termination of this Agreement or any other active Order, however, in the event that this Agreement is terminated, all active Orders shall also terminate. On termination of this Agreement, all licenses and rights to the Cloud Services and Support Services shall automatically terminate. On termination of an Order all licenses and rights to the Cloud Services and Support Services under such Order shall terminate with immediate effect. Customer is solely responsible for exporting Content from the Cloud Service prior to expiration or termination of this Agreement. We have no obligation to continue to store your Content from a Cloud Service, including in data backups, after you have terminated the Cloud Service or after termination of this Agreement. Customer acknowledges that following termination it will have no further access to any Content. Notwithstanding the above, upon termination or expiration of this Agreement, the provisions of Sections 6, 9, 10, 11, 13, 14, 15, and 16 will survive and continue in full force and effect.
15.1 Relationship. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect. 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.
15.2 Assignment. 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 (a) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (b) 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.
15.3 Governing Law. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled.
|If Customer is domiciled in:
|Governing Law is:
|Courts with exclusive jurisdiction are:
|North America or South America
|New York and controlling United States federal law
|New York, NY, USA
|England and Wales
|Australia or New Zealand
|New South Wales, Australia
|New South Wales, Australia
|Rest of World
|Republic of Ireland
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.
15.4 Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. We may provide any notice to you under this Agreement by posting a notice on the Site or by sending a message to the email address associated with your account. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. To give us notice under this Agreement, you must email us at email@example.com.
15.5 Export Compliance. Pyroscope Materials are subject to export control laws and regulations. Customer may not access or use the Pyroscope Materials or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Pyroscope Technology nor any underlying information or technology may be accessed or used (a) by any individual or entity in any country to which the United States has embargoed goods; or (b) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
15.6 U.S. Government Rights. The Cloud Services, Support Services, and Pyroscope Software, including all related Pyroscope technology and content, are “commercial computer software”, “commercial computer software documentation”, and/or “commercial items” as those terms are described in DFAR 252.227-7014(a)(1) and in the FAR at 48 C.F.R. 2.101, and they are provided for ultimate U.S. federal government end use solely with government technical data and software rights that 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 (Commercial computer software and commercial computer software documentation).
15.7 Third Party Software. In addition to the Pyroscope Software, Pyroscope also makes available certain third-party open source software as identified in the applicable help, notices, about, or source files (“Third Party Software”). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement. Pyroscope makes no warranties, express or implied, and will not be obligated under Section 12 (Indemnification) with respect to any Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software require Pyroscope to make an offer to provide source code or related information in connection with the Third Party Software, such offer is made.
15.8 Use of Name and Logo. Pyroscope may identify the Customer as a customer in its marketing and sales activities, and may use the Customer’s trade names, services marks, and logos in marketing materials, customer lists, press releases, articles, websites, advertisements, or other promotional activities.
15.9 Force Majeure. You understand and agree that your use of the Cloud Services may be delayed or interrupted by causes beyond our reasonable control, and we are not liable for any delay or failure to perform any obligation under this Agreement, or any damages or consequences thereof, where the delay or failure results from any cause beyond our reasonable control. Such causes beyond our reasonable control include without limitation acts of God; acts or orders of government; changes in law or regulations; epidemics; flood, fire, earthquakes, storms, or other elements of nature; blockages, embargoes, riots, civil unrest, acts of terrorism, or wars; strikes, lockouts, labor disputes, or other industrial disturbances; destruction of production facilities; systemic electrical, telecommunications or other utility failures; computer, telecommunications, the Internet, Internet service provider, hosting provider, or hosting facility failures or delays involving hardware, software, or power systems not within our possession or reasonable control; network intrusions or denial of service attacks; or any other cause, whether similar or dissimilar to any of the foregoing, that is beyond our reasonable control (individually or collectively as applicable,“Force Majeure“). A force majeure event suffered by a subcontractor of Pyroscope shall also discharge us from liability, if the work to be performed under subcontracting cannot be done or acquired from another source without incurring unreasonable costs or significant loss of time.
15.10 Entire agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement. Notwithstanding any language to the contrary in this Agreement, any purchase order shall be deemed a convenient payment device only and no terms or conditions in any such purchase order shall be incorporated into this Agreement, which are void and of no effect. This Agreement supersedes all prior or contemporaneous representations, understandings, proposals, agreements, or communications between you and us, whether written or verbal, relating the subject matter of this Agreement. You acknowledge that you have not relied on any representations other than those contained in this Agreement. No amendment, modification, or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties.
15.11 Severability; Failure to Enforce. 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. Our failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time.
15.12 Amendments. We may amend this Agreement at any time by posting a revised version on the Site or by otherwise notifying you by email. Amended terms of service become effective upon posting on the Site or as stated in our email notice message. By continuing to use the Cloud Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended terms of service. Your sole remedy should you not agree with the altered Agreement shall be to cease your use of the Cloud Services and to comply with your termination obligations outlined in Section 14. Please check the Site regularly. We last amended this Agreement on the date listed at the beginning of this Agreement.
“Affiliate” means an entity that controls, is controlled by, or under common control with Customer or Pyroscope, as applicable. “Control” means, possession of, directly or indirectly, the power to direct management through the ownership of fifty percent (50%) or more of its voting or equity securities, or by contract, voting trust or otherwise.
“Content” means all data and information transmitted to the Cloud Service by Customer or on Customer’s behalf.
“Customer Personal Data” means any information relating to an identified or identifiable natural person, and which Pyroscope is processing under this Agreement, and of which the Customer is a data controller.
“Documentation” means the standard user documentation for the Pyroscope Software and Cloud Services located at https://pyroscope.io/docs or at other locations as Pyroscope may provide.
“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world, including moral rights.
“Order” means (a) an ordering document for a Cloud Service, Support Services, and/or any professional advisory and training services, agreed upon by the Parties subject to this Agreement, or (b) the Cloud Service(s) selected and activated by Customer via the Site, including any selected Support Services, subject to this Agreement. The Order will contain at least the following: product name, license quantity, price, term, and billing contact.
“Parties” and “Party” means Pyroscope and the Customer jointly and separately.
“Site” means the locations designated by Pyroscope, which may include subdomains or subpages within Pyroscope’s websites, including pyroscope.io, pyroscope.cloud, flamegraph.com or other locations or methods of providing access to, use of, or information about the Cloud Services or Pyroscope Software.
“Support Services” means the applicable support and maintenance service that Customer purchases for the Cloud Service, as may be more fully described in the Order and this Agreement.
“Pyroscope Software” means the Pyroscope software and related Documentation.