Terms of Service
These terms of service (“Terms of Service”) govern the provision by Engine Yard Inc. (“Engine Yard”) of infrastructure, application hosting, support, customization, and other professional technical services (the “Services”), and your usage of the same, in connection with the Service Order Form(s) (as defined below) entered into by Engine Yard and you (“Customer”). Customer’s submission of an online Service Order Form via the Website (as defined below) or execution of a written Service Order Form (as applicable) indicates Customer’s agreement to be bound by these Terms of Service. Engine Yard may amend these Terms of Service from time to time and will notify Customer of such changes via e-mail, by posting a notice of such changes on the Website, or other reasonable means. Customer agrees to regularly visit Engine Yard’s website located at http://www.engineyard.com/ (or a successor URL controlled by Engine Yard) (“Website”) to review these Terms of Service to stay apprised of any changes. Customer’s continued use of the Services after any changes to these Terms of Service are made shall constitute Customer’s acceptance of such changes.
1. Services
Engine Yard shall use commercially reasonable efforts to provide the Services ordered by Customer pursuant to Service Order Forms. A “Service Order Form” is any service order form submitted by Customer and accepted by Engine Yard through the service order form process designated on the Website or any written service order form executed by Customer and Engine Yard, in each case to order Services. These Terms of Service are incorporated by reference into each Service Order Form, and together the Service Order Form(s) and these Terms of Service constitute “this Agreement.” In the event of any conflict between these Terms of Service and a Service Order Form, the Service Order Form shall take precedence.
2. Payments
(a) Fees
Customer agrees to pay the fees stated in the Service Order Form for any Services. Engine Yard’s first invoice shall include set up fees and a pro-rated portion of the monthly recurring fee for the period beginning on the date Engine Yard sends an e-mail to Customer that provides access codes and passwords for use in connection with the Services (“Commencement Date”) and ending on last day of that calendar month. Engine Yard may require payment in full by Customer of the first invoice before beginning provision of the Services. Thereafter, unless otherwise specified on a Service Order Form, monthly recurring fees shall be invoiced in advance on or around the first day of each calendar month and are due upon receipt. All invoices for Services are due upon receipt of invoice. Notwithstanding the foregoing, if this Agreement specifies that Customer shall pay by credit card, Engine Yard shall automatically bill Customer’s credit card in advance for each month’s Services and send a sales receipt to Customer for the same via e-mail. Unless otherwise set forth in this Agreement, all payments from Customer to Engine Yard under and in connection with this Agreement must be made in United States dollars.
(b) Collections
Engine Yard may suspend any or all Services if payment for any Service is overdue for a period of 7 days past the date of first written (including by e-mail) notice from Engine Yard regarding such overdue payment. Customer agrees to pay Engine Yard’s then-current reinstatement fee following a suspension of Services for non-payment. Engine Yard may charge interest on amounts that are overdue by 10 days or more at the lesser of 1.5% per month or the maximum rate permitted by law. Customer agrees to pay Engine Yard’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs. Engine Yard may terminate this Agreement or the applicable Service Order Forms for overdue payment in accordance with Section 10(b).
(c) Early Termination.
Without limiting any other remedy available to Engine Yard, if Engine Yard terminates this Agreement for Customer’s breach in accordance with Section 10(b)(i), 10 (b)(ii) or 10(b)(iii), all fees due under this Agreement, including the monthly recurring fees for the remaining portion of the term of each Service Order Form, are due 10 days following such termination.
(d) Taxes
Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on any of the Services under this Agreement (“Taxes”). Customer shall be liable for and shall pay any and all such Taxes and related charges, however designated, imposed on the provision of the Services (excluding taxes based solely on Engine Yard’s net income) regardless of whether Engine Yard fails to collect the tax at the time the related Services are provided. When Engine Yard has the legal obligation to pay or collect such Taxes, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Engine Yard with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Engine Yard original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.
3. Acceptable Use
(a) Offensive Behavior
Customer shall not in connection with the Services engage in or promote any activity that is illegal, offensive, contravenes applicable law, violates the rights of others or could subject Engine Yard to liability to third parties, including: (i) unauthorized access, monitoring or use of Engine Yard or third party accounts, data, computers, systems or networks; (ii) interference with others’ usage of the Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software unless (1) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (2) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “ad/remove” tool); (vi) any conduct that is likely to result in retaliation against Engine Yard or its employees, officers or agents; (vii) infringement, misappropriation or other violation of any U.S. or foreign patent, trademark, copyright or other intellectual property or proprietary right; (viii) collection, storage, publication, transmission, viewing or other use of any content that is (1) legally obscene, (2) constitutes or promotes child pornography, (3) is in Engine Yard’s opinion excessively violent, incites violence, threatens violence or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, (6) creates a safety or health risk to an individual or the public, (7) promotes or solicits illegal conduct or is otherwise illegal; (ix) any other behavior or activity that places Engine Yard or its employees, officers or agents in the position of fostering illegal activity inside or outside the U.S.; or (x) any other activity that violates U.S. or foreign law. Engine Yard may terminate the provision of Services to Customer if Customer engages in any of the foregoing activities.
(b) Security
Customer shall take reasonable security precautions in connection with its use of the Services. Customer must protect the confidentiality of all usernames, passwords, and other information it uses to access the Services and shall change its passwords periodically. If Customer’s slice or dedicated cluster (“Customer System”) is hacked or otherwise accessed by a third party without authorization, Engine Yard may take the Customer System offline until the intrusion is resolved.
(c) Compliance with Law
Customer shall comply with the CAN-SPAM Act of 2003, the Digital Millennium Copyright Act of 1998 (“DMCA”) and all other laws and regulations applicable to bulk or commercial e-mail, intellectual property rights, Customer’s use of the Services or content hosted by Customer via the Services. Engine Yard may test and otherwise monitor Customer’s compliance, and may block the transmission of e-mail or other content that in Engine Yard’s opinion violates any such law or regulation.
(d) Vulnerability Testing
Customer shall not attempt to probe, scan, penetrate or test the vulnerability of an Engine Yard system or network or to breach Engine Yard’s security or authentication measures, whether by passive or intrusive techniques.
(e) Cooperation with Investigations and Legal Proceedings
Engine Yard may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or Customer’s end users that it believes violates applicable criminal law, and (ii) provide any information it has about Customer or Customer’s end users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
(f) Other
(i) Customer must have valid and current information on file with its domain name registrar for any domain hosted on the Engine Yard network. (ii) Customer may only use IP addresses assigned to it by Engine Yard staff in connection with the Services. (iii) Customer agrees that if the Engine Yard IP numbers assigned to its account are listed on Spamhaus, Spews, NJABL or other abuse databases, Customer will be in violation of this Agreement, and Engine Yard may take reasonable action to protect its IP numbers, including suspension and/or termination of Customer’s Service account, regardless of whether the IP numbers were listed as a result of Customer’s actions.
4. Use of Services
(a) Use of Services
Customer is solely responsible for security of its Engine Yard account and the security of its data. Customer shall be liable for any fees, fines, judgments, or reimbursement to any person or entity that has suffered any damages due to a breach in the security of its Engine Yard account and any corresponding release of data. Customer is responsible for use of the Services by its customers and agents and any other person who accesses the Services through Customer’s account (whether unauthorized by Customer or not), including all fees incurred as a result of such use, and any violation of this Agreement by any such person shall be deemed a violation of this Agreement by Customer.
(b) Modifications
Engine Yard may make modifications to any of the Services in its discretion.
5. Suspension of Service; Breach Recovery
(a) Suspension of Service
Engine Yard may suspend the provision of Services to Customer or remove any content transmitted via the Services without liability if Engine Yard reasonably believes that any Service is being used in violation of this Agreement or applicable law or if requested by a law enforcement or government agency. Information on Engine Yard’s servers may be unavailable to Customer during a suspension of Services.
(b) Notification of Suspension
Unless a law enforcement or government agency directs otherwise, Engine Yard shall use commercially reasonable efforts to contact Customer prior to suspension of Services pursuant to this Section 5.
(c) Breach Recovery
In the event Customer breaches this Agreement, Customer shall compensate Engine Yard for its efforts to (i) investigate or otherwise respond to such breach, (ii) remedy any harm caused to Engine Yard or any of its customers as a result of such breach, (iii) respond to related complaints, including complaints under the DMCA, (iv) respond to related subpoenas or other third party requests for information, or (v) have Engine Yard’s IP numbers removed from any abuse database. The amount owed by Customer to Engine Yard for such activities shall be calculated in accordance with Engine Yard’s then-current breach recovery rates and shall include the cost of equipment and materials reasonably necessary for Engine Yard to perform such activities.
6. Warranties
Customer represents and warrants to Engine Yard that the information Customer has provided for the purpose of establishing an account with Engine Yard is complete and accurate. If Customer is a corporation or other legal business entity, Customer represents and warrants to Engine Yard that (a) it is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder; (c) this Agreement has been duly authorized and constitutes a valid and binding obligation of Customer enforceable in accordance with its terms; (d) the execution and performance of and compliance with this Agreement by Customer does not conflict with nor will result in any violation of its governing documents, any agreement to which Customer is a party or any law or regulation applicable to Customer; and (e) Customer will not use the Services or any rights granted hereunder for any unlawful purpose or in violation of any applicable law. If Customer is an individual, Customer represents and warrants to Engine Yard, that he or she (i) has the power and authority to enter into this Agreement; (ii) is at least eighteen (18) years old; (iii) has read and agrees to be bound by this Agreement; and (iv) will not use the Services or any rights granted hereunder for any unlawful purpose or in violation of any applicable law.
7. Indemnification
(a) Indemnities
Customer shall defend, indemnify and hold harmless Engine Yard, Engine Yard’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees (each an “Indemnified Party”) from and against any and all claims, requests for injunctive relief, demands, liabilities, obligations, losses, damages, penalties, fines and expenses of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) actual or alleged use of the Services in violation of any provision of this Agreement or applicable law, by Customer, any person using the Services on behalf of Customer, a customer or end user of Customer or by any person using Customer’s account regardless of whether such person has been authorized to use the Services by Customer; (ii) actual or alleged breach by Customer of its obligations to its customers or end users; (iii) any security breach of Customer’s application and data running on Engine Yard infrastructure; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data or other content posted or stored on Engine Yard infrastructure by Customer or through Customer’s account; and (v) any dispute between Customer and its contractors or end users. Without limiting the foregoing, Customer shall reimburse Engine Yard actual fees and expenses of outside counsel retained by Engine Yard to respond to third party complaints regarding the use of the Services in violation of this Agreement to the extent caused by acts or omissions of Customer.
(b) Procedures
In the event an Indemnified Party seeks indemnification under this Section 7, it shall provide Customer with prompt notice of its claim for indemnification; provided, however, that failure to give prompt notice shall not affect Customer’s obligations under this Section 7. The Indemnified Party will have the right to select counsel to defend it in respect of any indemnified matter, will keep Customer informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of Customer with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section 7 without the prior consent of Customer, which shall not be unreasonably withheld.
8. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND ENGINE YARD DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ENGINE YARD DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability
IN NO EVENT SHALL ENGINE YARD OR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER HEREBY RELEASES ENGINE YARD FROM ANY LIABILITY FOR LOSS OF DATA. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ENGINE YARD AND ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, SUPPLIERS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED SIX TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE ORDER FORMS IN EFFECT AT THE TIME OF THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, ENGINE YARD WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT.
10. Termination
(a) Customer
If a Service Order Form specifies that Services are provided on a month-to-month basis and Customer is not satisfied with such Services, Customer may terminate such Service Order Form as follows: (i) During the first thirty (30) days of service beginning on the Commencement Date (“Initial Service Period”), Customer may terminate such Service Order Form and receive a refund of any setup fees and monthly recurring fees related to that period for which Customer has already paid. (ii) After the Initial Service Period, Customer may terminate such Service Order Form and receive a refund of (A) the monthly recurring fees Customer has paid under such Service Order Form that are applicable to the month during which such Service Order Form was terminated and (B) the monthly recurring fees applicable to additional months for which Customer has pre-paid (if any); provided, however, that Customer shall pay Engine Yard within 5 days after such termination (or Engine Yard may offset against any Customer refund) any unpaid setup fees set forth in such Service Order Form (including the remaining portion of any setup fees that had been amortized over a period of time exceeding the Initial Service Period). For clarity, if Customer terminates a Service Order Form as described in clauses (i) or (ii) above, Customer shall not be entitled to a refund of any monthly recurring fees applicable to months prior to the month in which the Service Order Form was terminated. If a Service Order Form specifies a term for Services other than a month-to-month term (e.g., a 3-month or 1-year term), except as specified immediately below Customer may not terminate such Service Order Form until the end of the specified term. Customer may terminate any Service Order Form without liability (except for amounts due for Services through the effective date of termination) if Engine Yard materially breaches this Agreement and fails to cure such breach within 30 days of Customer’s written notice describing the violation in reasonable detail.
(b) Engine Yard.
Engine Yard may terminate this Agreement or the applicable Service Order Forms without liability as follows: (i) upon notice if Customer is overdue on the payment of any amount due hereunder for a period of 15 days past the date of first written (including by e-mail) notice from Engine Yard regarding such overdue payment; (ii) upon notice if Customer materially violates any other provision of this Agreement, and fails to cure the violation within 30 days of a written notice from Engine Yard; (iii) upon 1 Business Day notice if Customer uses the Services in violation of a material term of this Agreement more than once; or (iv) upon 5 days notice if Engine Yard is threatened with a legal claim for intellectual property infringement related to the provision of a Service and is unable through commercially reasonable efforts to obtain a license or modify such Service in a way that avoids an ongoing risk of liability. A “Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
11. Privacy
If Engine Yard receives any personal information regarding individuals resident in the European Union (“Data Subjects”) from Customer or Customer’s end users in connection with this Agreement, including any such information that may be provided by Customer or its end users and hosted on Engine Yard servers, Customer agrees: (i) that Customer is the data controller with respect to such information; (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such information, including obtaining all necessary consents from relevant Data Subjects and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights. Engine Yard’s Privacy Policy, as may be amended from time to time, describes its privacy practices with regard to the Website and its provision of Services. The current version of Engine Yard’s Privacy Policy is available for review on this webpage: http://www.engineyard.com/legal/privacy.
12. Service Levels
(a) Definitions
(i) “Customer Application” means a Ruby, Rails, Merb or other application which is hosted by Engine Yard as part of Services. (ii) “Scheduled Maintenance” means occasional maintenance to add resources, upgrade software, install security patches, etc., to the Engine Yard System. (iii) “Scheduled Service Uptime” means the total minutes in a month less the time for Scheduled Maintenance. (iv) “Engine Yard System” means Engine Yard’s infrastructure and systems for performing the Services. (v) “System Availability” means the ability of the Engine Yard System to answer User requests successfully. (vi) “User” means an internet user of a Customer Application.
(b) System Availability
Engine Yard shall use commercially reasonable efforts to provide at least 99.9% System Availability in any given month (excluding those periods in which Engine Yard is performing Scheduled Maintenance).
(c) Service Credits
In the event that Engine Yard does not meet the minimum monthly service level for System Availability set forth herein, Customer shall be entitled to Service Credits in accordance with Table A, which credits will be applied as a refund to Customer from Engine Yard. A Service Credit may not be transferred or applied to any other Engine Yard account. Customer’s sole and exclusive remedy for any unavailability or non-performance of a Service or other failure by Engine Yard to provide a Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this Agreement. The maximum cumulative credit for any and all applicable Service Credits in a month is 100% of the total recurring fee for that month for the affected Services payable by Customer.
(d) Application Monitoring
Engine Yard checks for the availability of each Customer Application no less frequently than every 5 minutes. If a Customer Application is not available for 3 consecutive checks, or if Engine Yard becomes aware that User initiated requests are unsuccessful, Engine Yard will use commercially reasonable efforts to notify the Customer SPOC (as defined below) within the response times defined in Table B for a Severity 1 Problems.
(e) Calculation of Service Credits and Payment Procedures
Engine Yard shall use commercially reasonable efforts to monitor the Customer Application to determine on a monthly basis if Customer is entitled to a Service Credit. Furthermore, if Customer believes that it is entitled to a Service Credit, Customer may submit a credit request by sending an e-mail to Engine Yard through Engine Yard’s online support system. If Engine Yard determines that Customer is entitled to a Service Credit, then Engine Yard will issue the Service Credit to Customer within one billing cycle.
(f) Service Credit Exclusions
The System Availability service level does not apply to (and no Service Credits are available to Customer as a result of) any unavailability, suspension or termination of a Service (i) caused by factors outside Engine Yard’s reasonable control, including any force majeure event, (ii) that result from actions or inactions of Customer of any third party, or (iii) that result from the Customer Application or other non-Engine Yard equipment, software or technology (other than third party equipment within Engine Yard’s direct control), (iv) Scheduled Maintenance, or (v) that result from a Service suspension or termination of Customer’s right to use a Service in accordance with the terms of this Agreement.
(g) Scheduled Maintenance
Scheduled Maintenance typically occurs during the periods of lowest anticipated system usage, currently between 12:00am and 5:00am Pacific U.S. Time Sunday. During Scheduled Maintenance, certain components of the Engine Yard System may be offline, or may be operating in less redundant modes, or may be operating at reduced capacity levels, while maintenance is performed. Engine Yard will use commercially reasonable efforts to notify Customer via e-mail of Scheduled Maintenance at least 24 hours in advance.
(h) Technical Contacts
Customer may contact Engine Yard by e-mail or phone in the case of outage or downtime or status change at notify@engineyard.com; 866-518-9275 (tech support, 24/7); or 866-518-9273 (sales, 24/7). Customer will provide Engine Yard with the name and contact information of a Customer Single Point of Contact (“Customer SPOC”) that Engine Yard can contact in the case of an outage.
13. Problem Management
(a) Trouble Ticketing
Customer shall create and e-mail to Engine Yard a support ticket in response to service abnormalities noticed by Customer. Each ticket shall contain: (i) a description of the problem, (ii) a description of any actions taken by Customer to produce and/or remedy the reported problem, and (iii) a proposed severity level classification based upon the severity level definitions set forth in Table B.
(b) Severity Level Classification
Upon receipt of a support ticket from Customer, Engine Yard and Customer will mutually determine the severity level of each reported problem in accordance with the definitions set forth in Table B.
14. Software
In the event that Engine Yard distributes or makes available any software to Customer, Customer’s usage of such software shall be subject to the license terms specified by Engine Yard.
15. Third Party Products
Engine Yard may from time to time arrange for Customer’s purchase or license of third party software, services, and other products not included as part of the Services, and/or may provide support to Customer in relation to those products. ENGINE YARD MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS OR RELATED SUPPORT SERVICES AND THEY ARE PROVIDED “AS IS.” Customer’s use of third party software, services and other products is governed by the terms of any license or other agreement between Customer and the third party.
16. Notices
(a) Notices to Engine Yard
All notices to Engine Yard under this Agreement (including notices required to be in writing) may be sent to Engine Yard via e-mail through Customer’s Engine Yard online support account.
(b) Notices to Customer
Notices to Customer under this Agreement shall be given via e-mail to the individual designated as Customer’s “Contact” on the applicable Service Order Form, or as specified in the preamble to these Terms of Service, or by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
17. Miscellaneous
(a) Solicitation
Each party agrees that it shall not solicit any employee of the other party with whom it has had direct contact in connection with this Agreement for employment during the term of this Agreement and for 12 months thereafter. Notwithstanding the foregoing, neither party shall be precluded from (i) hiring an employee of the other party who independently approaches the hiring party, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If a party violates this provision, in addition to any other right the non-breaching party may have at law or in equity, the breaching party shall make a one-time payment to the non-breaching party in the amount of 50% of the employee’s base salary for one year.
(b) Ownership
Engine Yard retains exclusive ownership of the Services, the Engine Yard System, its software, any and all modifications to any of the foregoing and all related intellectual property rights. Customer grants Engine Yard a non-exclusive license to use, reproduce, modify, publicly perform, publicly display and distribute any content Customer provides to Engine Yard as necessary to provide the Services.
(c) Governing Law, Jurisdiction, Venue
This Agreement shall be governed by the laws of the State of California. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE OR FEDERAL COURTS IN SAN FRANCISCO COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. Notwithstanding the foregoing, either party may bring an action in any jurisdiction to enforce its intellectual property rights, its rights in confidential information or payment obligations.
(d) Modifications
The terms on either party’s purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.
(e) Non-Waiver
A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Construction
The headings in this Agreement are not part of this Agreement, but are for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein.
(g) Counterparts
In the event these Terms of Service or a Service Order Form are executed by the parties in writing, such document may be signed in multiple counterparts, which taken together will constitute one original. Facsimile signatures or signatures on an electronic image, such as .pdf or .jpg format, shall be deemed to be original signatures.
(h) Survival
Sections 2, 7, 8, 9, 10, 15, 16 and 17 will survive any expiration or termination of this Agreement.
(i) Force Majeure
Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(j) No Third Party Beneficiaries
With exception to the persons listed in Section 7, there are no third party beneficiaries to this Agreement. Customer may authorize its subsidiaries and affiliates to use the Services, provided that no such person shall be a third party beneficiary of this Agreement or otherwise be in privity of contract with Engine Yard, and Customer shall be responsible for use of the Services by its affiliates and subsidiaries to the same extent as if Customer had been using the Services itself.
(k) Severability
In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.
(l) Relationship Between the Parties
The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Engine Yard may provide the Services to any person, including a competitor of Customer.
(m) Assignment
Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Engine Yard may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or assets. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.
(n) Agreement
This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter. Defined terms used herein shall have the same meaning as used in a Service Order Form, if not defined herein.
| Service Level Name | Calculation | Monthly Minimum Service Level | Service Credit (subject to Section 12 of this agreement) |
|---|---|---|---|
| System Availability |
Monthly System Availability equals the difference of Scheduled Service Uptime minus unscheduled service downtime divided by Scheduled Service Uptime for that month. Example: In a 30 day month, if there were 240 minutes of Scheduled Downtime and 100 minutes of unscheduled downtime then the System Availability for that month would be 99.767% (calculated as follows: (43,200 - 240 - 100) / (43,200 – 240) = 99.767%) |
The service level for monthly System Availability is 99.9% |
If System Availability for a month is less than 99.9%, Customer shall be entitled to a Service Credit equivalent to the amount of unscheduled service downtime in excess of 0.1%, divided by the amount of Scheduled Service Uptime for that month, and multiplied by the total recurring fee for that month for the affected Services payable by Customer. The maximum cumulative credit for any and all applicable Service Credits in a month is 100% of the total recurring fee for that month for the affected Services payable by Customer. |
| Severity Level | Description | Service Level |
|---|---|---|
| 1 | Critical Impact. The problem or defect in a Service cannot be reasonably circumvented, rendering such Service unusable. Customer sales or operation is severely impacted. | Commitment to use commercially reasonable efforts to identify and implement steps designed to fix the problem within 4 hours. |
| 2 | High Impact. A problem or defect in a Service that has seriously degraded or restricted the use of such Service, but has not rendered it unusable. | Commitment to use commercially reasonable efforts to identify and implement steps designed to fix the problem within 8 hours. |
| 3 | Moderate Impact. A problem or defect in a Service that has caused unexpected behavior or a minor error where use of such Service has not been interrupted, but unexpected results have occurred. | Commitment to use commercially reasonable efforts to identify and implement steps designed to fix the problem within 5 business days. |
| 4 | Low Impact or Request for Enhancement. The problem or defect in a Service requires new functionality or an enhancement to be added to such Service. | As mutually agreed. |
