Version 1.0; 11.15.20
Please read this software license agreement license carefully before using the Installed Subscription Software or Hosted Subscription Services as defined herein. By using the Installed Subscription Software or Hosted Subscription Services you are agreeing to be bound by the terms of this Styra Subscription and Services Agreement. If you do not agree to the terms of this license do not install or use the Installed Subscription Software or Hosted Subscription Services.
This Styra End User Subscription Agreement (this “Agreement“) is by and between Styra, Inc., a Delaware corporation with an address at 1800 Broadway St, Redwood City, CA 94063 (“Styra“), and (Customer“).
WHEREAS, Customer desires to obtain licenses to Hosted Subscription Services, Installed Subscription Software or Open Source Support Services and consulting services relating to the Supported Open Source (as defined below), and Styra is willing to perform such services, on the terms described below.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
- Definitions. The following capitalized terms shall have the meanings set forth below:
- “Hosted Subscription Services” means the software being provided by Styra to Customer under this Agreement, and includes Software Technical Support and Software Updates for the duration of the Hosted Subscription Services Term.
- “Open Source Software” means Styra or third party software that is licensed, provided or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license.
- “Open Source Support Services” means (i) the technical support services which, may include provision of software updates and patches for the Supported Open Source, and (ii) the consulting services set forth in one or more SOWs agreed between Customer and Styra.
- “Order” means the form between Customer and Styra that sets forth the Hosted Subscription Services, Installed Subscription Services, Open Source Support Services, Subscription Services Term, Support Term and Support Fee agreed between the parties, as well as consulting services provided under one or more separate Statement(s) of Work, if any.
- “Product” means each and all of the Installed Subscription Services, Hosted Subscription Services, Supported Open Source, or Support Offering.
- “Statement of Work” or “SOW” means a mutually executed document referencing this Agreement that specified the consulting services to be provided by Styra to Customer and the fees to be paid by Customer for such services.
- “Styra Enhancements” means any and all modifications, enhancements, bug fixes, patches and workarounds of or with respect to the Supported Open Source that are developed by or on behalf of Styra and are provided to Customer during the course of performing the Support Services.
- “Subscription Services Term” means that period during which the Customer is subscribed to the software.
- “Support Fee” means the fee for the Support Services purchased by Customer.
- “Support Offering” means the support services provided by Styra.
- “Support Term” means the time period for the provision of Support Services.
- “Supported Open Source” means the software for which Styra agrees to provide Open Source Support Services to Customer.
- “Software Technical Support” means the services provided by Styra with each subscription of at the level purchased by Customer.
- “Software Updates” means the updates, improvements, bug fixes and other changes to the Hosted Subscription Services that Styra generally provides to its customers during the Hosted Subscription Services Term.
- Hosted Subscription Services.
- Hosted Subscription Services. If a Customer will receive access to a Hosted Subscription Services, then Customer may access and use such Hosted Subscription Services solely (i) for the Subscription Services Term, and (ii) in accordance with all applicable Documentation (defined below) and the restrictions set forth in this Agreement (including the applicable Order Form). Hosted Subscription Services includes Software Technical Support and Software Updates for the Subscription Services Term.
- Subject to the terms and conditions of this Agreement and Customer’s payment of the applicable Subscription Fee, Styra grants Customer a worldwide, non-exclusive, non-transferable right, without the right to sublicense and (except as otherwise provided on a Schedule) solely for its own business operations to use the Hosted Subscription Services and have the number of Users or other stated metric for which the Customer has subscribed use the Hosted Subscription Services in accordance with the terms of the Documentation and this Agreement. The term of such license shall be the Subscription Term or the number of Compute Nodes or other stated metric purchased by Customer.
- Cloud Service Free Trial License.Customer may subscribe to receive a free trial of the Hosted Subscription Services through Styra or a third party online store, subject to the limitations set forth therein. A free trial license of the Hosted Subscription Services is limited to one Tenant per Customer. Styra may delete a Customer’s Tenant after two (2) weeks of inactivity upon notice to the Customer. Styra’s free trial offers are subject to change or discontinuation without notice at any time.
- Installed Subscription Software. If Customer will receive a license to downloadable software (including any mobile applications and downloadable add-ins to other Products) (“Installed Subscription Services“), then Styra hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Styra’s rights in such Installed Subscription Services to install and operate such Installed Subscription Services in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Order Form) for the Subscription Services Term set forth in the Order Form. Installed Subscription Services includes Software Technical Support and Software Updates for the Subscription Services Term.
- Evaluation Use License.In the event that the Installed Subscription Service or Hosted Subscription Service is licensed only for evaluation use, the terms of this paragraph shall apply. Styra hereby grants Customer a personal, nonexclusive, nontransferable license, without right of sublicense, to install, use and execute the Installed Subscription Software or Hosted Subscription Service. This license to use the Installed Subscription Software or Hosted Subscription Service commences on installation of the Installed Subscription Software or use of the Hosted Subscription Service and, unless Customer and Styra agree to a different period, will terminate after a period of thirty (30) days (the “Evaluation Period”). Customer may use the Installed Subscription Software or Hosted Subscription Service for an unlimited number of users and systems during the Evaluation Period. Installed Subscription Software or Hosted Subscription Service licensed for Evaluation Use will automatically disable itself at the end of the Evaluation Period, as it employs a restriction mechanism, which restricts the program to a limited working time. This restriction mechanism and the manner in which it enforces the restriction is maintained in confidence by Styra as a trade secret, and Customer may not publish, disclose or reveal it. Customer agrees not to do anything to circumvent or defeat the restriction mechanism.
- The rights granted in Section 2.1 through 2.4 are subject to the following restrictions: (i) Customer shall not reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Installed Subscription Software or Hosted Subscription Service, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation; (ii) Customer shall not sublicense or use the Installed Subscription Software or Hosted Subscription Service for commercial time-sharing, rental, outsourcing, application or managed service provision, or service bureau use, or to train persons other than Users, unless previously agreed to in writing by Styra; (iii) Customer may not remove any patent, trademark, copyright, trade secret or other proprietary notices or labels on the Installed Subscription Software or Hosted Subscription Service or Documentation, (iv) Customer shall not disclose the results of any performance, functional or other evaluation or benchmarking of the Installed Subscription Software or Hosted Subscription Service to any third party without the prior written permission of Styra; (v) Customer may not use the Installed Subscription Software or Hosted Subscription Service if Customer is a competitor of Styra; (vi) Customer shall not modify or create any derivative works of the Installed Subscription Software or Hosted Subscription Service or Documentation; and (vii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Hosted Subscription Service or the data contained therein.
- Retention of Rights.Styra reserves all rights not expressly granted to Customer in this Agreement. Without limiting the generality of the foregoing, Customer acknowledges and agrees (i) that Styra and its third party licensors retain all rights, title and interest in and to the Installed Subscription Software or Hosted Subscription Service and Documentation and (ii) that it does not acquire any rights, express or implied, in or to the foregoing, except as specifically set forth in this Agreement. Any new features, functionality, corrections or enhancements for the Installed Subscription Software or Hosted Subscription Service suggested by Customer shall be free from any confidentiality restrictions that might otherwise be imposed upon Styra and may be incorporated into the Installed Subscription Software or Hosted Subscription Service by Styra. Customer acknowledges that the Installed Subscription Software or Hosted Subscription Service incorporating any such new features, functionality, corrections or enhancements shall be the sole and exclusive property of Styra.
- Support Subscription for Open Source Software
- Documentation. To the extent that a Product is accompanied by any Styra-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to a Product (“Documentation“), Styra hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Styra’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license to or grant of access and usage rights for such Product set forth in this Section 2.
- Third-Party Products. To the extent that a Product includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Styra provides to Customer or that is otherwise identified in the Documentation as being required to use properly such Product (“Third-Party Products“), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms. Without limiting the foregoing, if Styra enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Customer will comply at all times with such terms and conditions.
- Compliance with Laws. Customer will use the Products and Documentation in compliance with all applicable laws and regulations.
- Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Products and Documentation and will immediately notify Styra in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to a Product or Documentation through Customer.
- Ownership; Data. As between Styra and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into a Product or otherwise makes available to Styra, including in connection with Customer’s use of a Product or receipt of Professional Services and (b) data that is generated and made available to Customer by any Product through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data“). Customer hereby grants Styra a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (a) during the Term, for the purpose of exercising Styra’s rights and performing its obligations under this Agreement and (b) in perpetuity, in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve Styra’s and its Affiliates’ products and services. Customer represents and warrants that Customer has all rights necessary to grant Styra the licenses set forth in this Section7 and to enable Styra to exercise its rights under the same without violation or infringement of the rights of any third party. As between the Parties, Styra owns all right, title, and interest, including all intellectual property rights, in and to the Products, Documentation, Deliverables, and any improvements to any Styra products or services made as a result of Styra’s use, processing, or generation of Customer Data. During the Term, Customer may request that Styra make available to Customer a copy of Customer Data stored in certain Products, and Styra may agree to do so for an additional fee.
- Feedback. If Customer provides any feedback to Styra concerning the functionality and performance of a Product, any Documentation, or any Styra Enhancement (including identifying potential errors and improvements), Customer hereby assigns to Styra all right, title, and interest in and to the feedback, and Styra is free to use the feedback without payment or restriction.
- Open Source Software. If applicable, any Styra or third party Open Source Software provided to Customer by Styra is distributed or made available under the terms of the open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files. Copyrights and other proprietary rights to the Open Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files.
- Support Subscription for Open Source Software
- Open Source Support Services. Subject to Customer’s timely payment of the Support Fee and compliance with the terms and conditions of this Agreement, during the Support Term Styra shall provide to Customer the Open Source Support Services corresponding to the Support Offering set forth in the Order Form. Unless renewed, Open Source Support Services will expire at the end of the applicable Support Term. This means that while the Customer is free to use any Open Source Software under the terms of the applicable open source license after the expiration of the applicable Support Term, Styra will not provide the Support Services after the end of the applicable Support Term.
- Ownership of Styra Enhancements. Styra and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Styra Enhancements, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, Customer shall acquire no other rights, express or implied, in or to the Styra Enhancements, and all rights not expressly provided to Customer hereunder are reserved by Styra and its licensors. All the copies of the Styra Enhancements provided or made available hereunder are licensed, not sold.
- Styra Enhancements. Subject to Customer’s timely payment of the Support Fee and compliance with the terms and conditions of this Agreement, Styra hereby grants Customer a perpetual, non-exclusive, non-transferable, non-sub-licensable license to install, copy and use the Styra Enhancements for Customer’s internal business purposes, solely in conjunction with Customer’s use of the Supported Open Source. Notwithstanding the foregoing, Styra, in its sole discretion, may decide to contribute the Styra Enhancements to the open source project to which the relevant Supported Open Source pertains. In such case, in lieu of the foregoing license, Customer may use such Styra Enhancements under the terms of the open source license under which Styra has made it publicly available.
- Consulting Services. Consulting services will be set forth in each Statement of Work between the parties, all of which consulting services will be provided during the applicable Support Term only. Each Statement of Work will be governed by the terms of this Agreement. In the event of a conflict between the terms of a Statement of Work or an Order Form, on the one hand, and the terms of this Agreement, on the other hand, the terms of this Agreement will control except to the extent a Statement of Work expressly reflects an express intent to override one or more terms of this Agreement.
- Restricted Activities. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use a Product or the Documentation; (b) use a Product to provide services to third parties (e.g., as a service bureau); (c) use a Product for any benchmarking activity or in connection with the development of a competitive product; (d) circumvent or disable any security or other technological features or measures of a Product or use the product in a manner that Styra reasonably believes poses a threat to the security of Styra-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from a Product (except to the extent that applicable law prevents the prohibition of such activities); or (f) use or access any Product in a manner that materially impacts or burdens Styra or Styra’s servers and other computer systems, or that interferes with Styra’s ability to make available any Product to any third party.
- Fees and Payment
- Fees and Payment Terms. Customer will pay Styra the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. Unless otherwise specified in such Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Styra to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
- Taxes. Other than net income taxes imposed on Styra, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes“) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Styra after all such Taxes are paid are equal to the amounts to which Styra would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
- Term and Termination
- Term. This Agreement will remain in effect until terminated in accordance with this Section 7 (the “Term”).
- Termination for Convenience. Either Party may terminate this Agreement for convenience immediately upon notice to the other Party at any time that no Order Form is in effect.
- Termination for Material Breach. Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Styra may immediately terminate this Agreement upon notice to Customer if Styra reasonably believes that Customer has made or distributed any unauthorized copies of any Product has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Styra’s intellectual property rights, including rights in and to any Product. Without limiting any other provision of this Section 7.3, if Customer fails to timely pay any fees, Styra may, without limitation to any of its other rights or remedies, suspend access to the Products or performance of the Professional Services under all Order Forms until it receives all amounts due.
- Termination for Bankruptcy or Insolvency. Either Party may terminate this Agreement or one or more Order Forms if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.
- Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to Styra any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide Styra with a written certification signed by an authorized Customer representative certifying that all use of Products and Documentation by Customer has been discontinued and that all Software and Confidential Information in Customer’s possession or control has been returned or destroyed.
- Survival. Notwithstanding anything to the contrary herein, Sections 7, 2.8, 5, 6, 7.5, 7.6, and 8 through 11 will survive termination or expiration of this Agreement.
- Definition. “Confidential Information” means any information disclosed by one party (“Discloser“) to the other (“Recipient“) in connection with this Agreement, directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. For the purposes of this Agreement, the Products, Styra Enhancements, and the results of any performance, functional or other evaluation of the Products and the Styra Enhancements, shall be deemed Confidential Information of Styra.
- Exceptions. The confidentiality obligations in this Section 8 shall not apply with respect to any of the Discloser’s Confidential information which Recipient can demonstrate: (a) was in the public domain at the time it was disclosed to Recipient or has become in the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) was disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any use of Discloser’s Confidential Information by employees or other agents of (or contractors hired by) Recipient who had no access to or did not rely on Discloser’s Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights.
- Restrictions on Use and Disclosure. Recipient agrees not to use Discloser’s Confidential Information or disclose, distribute or disseminate Discloser’s Confidential Information except in furtherance of the performance of its obligations or enforcement of its rights hereunder or as otherwise expressly agreed by Discloser in writing. Recipient agrees to restrict access to such Confidential Information to those employees or consultants of Recipient who need to know such Confidential Information for performing as contemplated hereunder and have agreed in writing to be bound by a confidentiality obligation no less protective than that contained in this Agreement. Recipient shall exercise the same degree of care to prevent unauthorized use or disclosure of Discloser’s Confidential Information to others as it takes to preserve and safeguard its own information of like importance, but in no event less than reasonable care.
- Compelled Disclosure. If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure or obtain a restraining order. Recipient shall not be in breach of its obligations in this Section 8 if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements.
- Injunctive Relief. Recipient acknowledges that breach of the confidentiality obligations would cause irreparable harm to Discloser, the extent of which may be difficult to ascertain. Accordingly, Recipient agrees that Discloser is entitled to immediate injunctive relief in the event of breach of an obligation of confidentiality by Recipient, and that Discloser shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.
- Return of Confidential Information. As between the parties, Confidential Information shall remain the property of the Discloser. At any time, upon Discloser’s reasonable request, Recipient shall promptly (and in any event within 30 days) return to Discloser or destroy, at the election of the Discloser, any Confidential Information of the Discloser. In addition, within 30 days after termination of this Agreement, Recipient shall (i) promptly return all tangible materials containing such Confidential Information to Discloser, (ii) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient, its contractors and its distributors, and confirm in writing that all materials containing Confidential Information have been destroyed or returned to Discloser, as applicable, by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
- Warranties and Disclaimer
- Limited Styra Warranties. Styra hereby warrants, for the benefit of Customer only, that each Product will materially conform to the applicable Documentation (the “Product Warranty”) for a period of 30 days after the Product is first made available to Customer (the “Warranty Period”), provided that the Product Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Product by Customer or any third party or any combination of the applicable Product with APIs, software, hardware, or other technology not provided by Styra under the applicable Order Form. If any defect or error covered by the Product Warranty occurs, Customer will provide Styra with sufficient detail to allow Styra to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, Styra will, at its sole option, either (a) correct such error or defect in the Product, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) accept return of the Product and refund any license or subscription fees previously paid by Customer in connection with such Product, and in Customer’s right to use the Product will terminate. The foregoing sentence sets forth Customer’s sole and exclusive remedy for Styra’s breach of the warranty described in the first sentence of this Section 1. Styra is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by a Product that Customer has modified, misused, or damaged.
- Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 9 OR AN ORDER FORM OR ADDENDUM, STYRA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. STYRA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. STYRA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR PROFESSIONAL SERVICES. STYRA DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION, OR PROFESSIONAL SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS OR PROVISION OF THE PROFESSIONAL SERVICES WILL BE SECURE OR UNINTERRUPTED. STYRA DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY A PRODUCT OR DOCUMENTATION, OR IN CONNECTION WITH THE PROFESSIONAL SERVICES, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. STYRA EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PRODUCTS OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES.
- Limitation of Liability.
- Exclusion of Damages. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT STYRA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY CUSTOMER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING LIMITATIONS ON STYRA”S LIABILITY SHALL APPLY WHETHER OR NOT STYRA HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT STYRA”S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
- Liability Cap. THE TOTAL LIABILITY OF STYRA ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
- Infringement Indemnity.Styra shall defend and indemnify Customer and/or its Affiliates or their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the Hosted Service in accordance with this Agreement and Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
- Customer Data and Use Indemnity.Customer shall defend and indemnify Styra and/or its Affiliates or their officers, directors and employees against any third-party claims, suits and proceedings resulting from an alleged infringement or violation by the Customer Data of such third party’s patent, copyright, trademark, trade secret, or Styra’s use of the Customer Data in accordance with the terms of this Agreement and (where applicable) with the terms of the DPA, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
- Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to, (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing, and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any Claim.
- The above Styra obligations to defend and indemnify will not apply in the event that a claim arises from or relates to (a) use of the Hosted Service not in accordance with the Documentation and this Agreement (b) Customer’s use of the Hosted Service in violation of Applicable Data Protection Laws; (c) any modification, alteration or conversion of the SaaS Products not created or approved in writing by Styra, (d) any combination or use of the Hosted Service with any computer, hardware, software, data or service not required by the Documentation, (e) Styra’s compliance with specifications, requirements or requests of Customer, or (f) Customer’s gross negligence or willful misconduct.
- If the Hosted Service becomes, or Styra reasonably determines that the Hosted Service is likely to become, subject to a claim of infringement for which Styra must indemnify Customer as described above, Styra may at its option and expense: (a) procure for Customer the right to continue to access and use the Hosted Service, (b) replace or modify the Hosted Service so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing Hosted Service, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected Hosted Service. This Section states the sole liability of Styra and the exclusive remedy of Customer with respect to any claims arising out of or related to Section 12.5 of this Agreement.
Styra agrees at its own expense to secure and keep in full force and effect throughout the term of this Agreement the following insurance policies:
13.1 Commercial General Liability. Commercial General Liability Insurance written on an occurrence form to afford protection with limits not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) combined general aggregate, including coverage for bodily injury and/or death, premises/operations, products-completed operations, independent contractors, and broad form property damage;
- Workers Compensation Insurance.Workers Compensation Insurance providing statutory benefits for service providers’ officers, employees, and agents and Employer’s Liability coverage with limits not less than One Million Dollars ($1,000,000);
- Business Automobile Liability Insurance.Business Automobile Liability Insurance including coverage for owned, non-owned, leased, or hired vehicles with limits not less than One Million Dollars ($1,000,000) per accident combined single limit for bodily injury and property damage;
- Errors and Omissions/Professional Liability Insurance.Errors and Omissions/Professional Liability Insurance including cyber liability, privacy and network security with limits not less than Five Million Dollars ($5,000,000) each claim to cover professional acts, errors, or omissions arising out of the services performed under this Agreement; and
- Umbrella Liability.Umbrella Liability with limits not less than Three Million Dollars ($3,000,000) each claim and in the aggregate.
- Miscellaneous. The Products and Styra Enhancements are “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Products and Styra Enhancements with only those rights that are set forth herein. The Products, Styra Enhancements and any technical data relating to any of the foregoing may not be exported, re-exported or used in any manner in violation of the laws, statutes, executive orders or regulations of the United States of America or of any country to which the same has been legally exported or re-exported. Each party agrees to comply with all applicable United States and foreign export law, regulations and license restrictions relating to the Products and Styra Enhancements. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. The application of the UN Convention of International Sale of Goods to this Agreement is disclaimed in its entirety. Each party agrees to submit to the exclusive jurisdiction of the courts located within the county of San Mateo, California to resolve any legal matter arising from this Agreement. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Styra may assign the entirety of its rights and obligations under this Agreement, without consent of the Customer, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Together with any Order Forms, this is the entire agreement between the parties relating to the subject matter hereof, and shall control over any additional or different terms regarding its subject matter in any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties. Waivers and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements indicating specifically what sections of this Agreement are affected, signed by both parties and clearly understood by both parties to be an amendment or waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable. The relationship between the parties is that of independent contractors to each other. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, nor shall either party have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
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