Master Services Agreement
THIS MASTER SERVICES AGREEMENT (THIS “AGREEMENT”) IS A BINDING AGREEMENT BY AND BETWEEN YOU (EITHER AS AN INDIVIDUAL OR AN ENTITY, IF YOU ARE ACTING WITHIN THE SCOPE OF YOUR EMPLOYMENT) (“YOU” OR “CUSTOMER”) AND BUOYANT, INC., A DELAWARE CORPORATION WITH HEADQUARTERS AT 548 MARKET ST, PMB 43048, SAN FRANCISCO, CA 94104 (“BUOYANT” OR “US”). THE AGREEMENT INCLUDES ALL ATTACHMENTS AND ADDENDA TO IT AND WILL BE INCORPORATED INTO ANY ORDER FORM THAT REFERENCES IT (YOUR “ORDER”). IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND ANY REFERENCE TO “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. YOU AND BUOYANT ARE SOMETIMES REFERRED TO HEREIN COLLECTIVELY AS THE "PARTIES" OR NDIVIDUALLY AS A "PARTY."
IMPORTANT-READ CAREFULLY: BY CLICKING ON THE CHECKBOX THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY ACCESSING, DOWNLOADING, INSTALLING, OR USING BUOYANT’S SOFTWARE OR SERVICES, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR EMPLOYER, YOU MUST NOT ACCESS, INSTALL THE AGENT, OR USE THE SOFTWARE OR RECEIVE THE SERVICES.
1. Definitions
Capitalized terms not otherwise defined have the meanings set forth in this Section 1:
1.1 “Documentation” means Buoyant’s end-user technical documentation supplied with the applicable Software.
1.2 “Error” means a failure of the Software to perform in substantial conformity with its applicable Documentation.
1.3 “Intellectual Property Rights” means all rights granted, applied for, or otherwise now or hereafter in existence under or related to any copyrights, moral rights, patents, patent applications, trademarks, service marks, trade secrets, and other proprietary rights, whether registered or unregistered, anywhere in the world.
1.4 ”Personal Information” means information that identifies or could be used to identify an individual or relates to an identifiable person and expressly includes “personal information” or “personal data” as such terms are defined in any applicable data privacy or data protection laws.
1.5 “Professional Services” means configuration, training, consulting and/or other professional services as described in an Order.
1.6 “Services” means, collectively, Professional Services and Support.
1.7 “Software” means the version(s) of Buoyant’s proprietary Linkerd management software more fully described in an Order, including the on-premise or self- hosted version of the Software (the “On-Prem Software”) and/or the cloud-based, hosted version of the Software (the “SaaS Software”), together with any Updates provided to You by Buoyant pursuant to this Agreement.
1.8 “Update(s)” means any update, upgrade, release or other adaptation or modification or replacement of the Software that Buoyant may provide from time to time, in its sole discretion, to licensees of the Software subscribed to receive Support, which may contain, amon other things, error corrections, enhancements, improvements or other changes to the Software.
2. Scope
This Agreement governs the terms and conditions under which you may access, download, install, use and test the Buoyant Software and Services.
3. On-Prem Software Delivery
If You purchase the On-Prem Software, Buoyant will make the On-Prem Software and Updates available electronically to You as a binary utility file that can be installed on Your systems and hardware and a cloud-based Docker repository and You agree that You are responsible for installing the Software in accordance with the Documentation and the installation instructions provided by Buoyant unless the Parties execute a separate agreement for Buoyant’s provision of installation services; provided that Buoyant may provide You with Support during Your initial installation of the On-Prem Software.
4. Software
4.1 License. Subject to the terms and conditions of this Agreement and Your payment of all fees, Buoyant hereby grants You, during the applicable Term (as defined below), a non-transferable, non-sublicensable, non-exclusive license to access and use the Software designated in Your Order in accordance with the documentation or instructions supplied by Buoyant, for Your internal business purposes for the quantity of units set forth in the Order. If You purchase the On-Prem Software, You may make a reasonable number of copies of the Software solely for testing, disaster recovery or archival purposes. The Software (and any copies thereof) will remain the exclusive property of Buoyant.
4.2 Open Source. The Software includes certain open source components. Buoyant represents and warrants that such open source software components will not contain any license or other terms that require that other software or documentation incorporating or used with such software be disclosed or distributed in source code form, be licensed for the purpose of making
derivative works, or be redistributable at no charge.
4.3 Evaluation License. If You are licensing the Software for evaluation purposes, notwithstanding the terms herein, an evaluation license of the Software is provided “as is” without indemnification, technical support, or warranty of any kind, expressed or implied.
4.4 License Restrictions. You acknowledge that the Software and its structure, organization, and source code are copyrighted and constitute Confidential Information and valuable trade secrets of Buoyant and its suppliers. Accordingly, You agree not to (i) copy, modify, alter, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code of the Software, make derivative works based upon the Software, or use the Software to develop any products; (ii) merge the Software with any other software, (iii) sell, license, sublicense, rent, lease, loan, transfer, pledge, or otherwise dispose of or in any way encumber the Software (or any part thereof or access thereto), or use it for the benefit of, any third party or in an production environment; (iv) disclose or otherwise make available to a third party any benchmarking or any comparative information, or other information for competitive purposes, involving the Software or other materials provided by Buoyant; (v) remove, alter, or obfuscate any product identification, legend, notices of any proprietary or copyright restrictions from the Software; or (vi) otherwise use or copy the Software except as expressly allowed under Section 4.1 (License). You will not export, or allow the export or re-export of the Software or any Confidential Information, or any direct product thereof, in violation of any applicable export laws, restrictions or regulations of the United States or any applicable foreign agency or authority.
4.5 Updates. During the applicable Term, Buoyant will make Updates to the Software available to You. If You purchase or use the On-Prem Software, You will install all Updates as soon as practicable upon their release.
4.6 Support. If You purchase the On-Prem Software, during the applicable Term, Buoyant will provide reasonable maintenance and technical support for the On-Prem Software, including the Technical Support set forth on the applicable Order subject to Your payment of the fees (“Support”) and in accordance with the Service Level Agreement (if any) set forth in your Order. “Technical Support” means web-based technical assistance to Your technical contact(s) regarding installation and use of the Linkerd code, errors and technical product problems.
4.7 Professional Services. The parties may mutually agree upon Professional Services to be provided by Buoyant to You in an Order. The fees for such Professional Services shall be set forth in an Order. Buoyant’s support obligations do not cover modifications made to the Software as a result of Professional Services unless such modifications are made a part of the generally available Software or as expressly agreed to by Buoyant in the Order.
4.8 Your Content. In connection with Support and/or Services activities provided under this Agreement, You authorize Buoyant to collect, as applicable, certain operational, usage and performance data relating to the Software and Support activities including (i) diagnostic, usage, performance and related technical data relating to Your installation of the Software; (ii) data regarding Your containers (Disk, IO, RAM, CPU, Network) servicing and hosting the Software; (iii) Your support logs; and (iv) other information related to the Software, Support and/or Services (collectively as “Customer Usage Data”). You authorize Buoyant to collect such Customer Usage Data, including (a) via telemetry; and (b) as may be manually provided by You. You shall not include Personal Information in the Support logs, except for the business contact details of Your representatives (e.g. name, business email, business phone, professional title). To the extent Content is made available to Buoyant, You hereby grant Buoyant a limited, non-exclusive, non-transferable license to use, copy, process, store and transmit such Content solely as necessary to perform Buoyant’s Services and Support obligations under this Agreement and to improve the Software and as expressly permitted below in this Section 4.8. You shall be responsible for obtaining any consents, approvals, permissions and/or licenses necessary to grant Buoyant the rights to the Content made available hereunder. Buoyant shall have the right to collect and use metadata derived from the Customer Usage Data to create (i) high level, generic, anonymous, statistical and/or benchmarking data (“Statistical Data”) for aggregation with other customer information (the “Aggregated Data”) provided that such Aggregated Data does not identify and cannot be used to identify, reveal or be traced back to You, a user, any customer system or any specific Content and You hereby grant Buoyant a perpetual, irrevocable, fully paid-up, worldwide right to use, copy, modify, create derivative works of, publish, and exploit the Statistical Data as incorporated into the Aggregated Data solely for Buoyant’s internal business purpose of improving, optimizing, and monitoring the performance of the Software and Services and for the purpose of creating benchmarking data. Buoyant shall not sell or transfer the Statistical Data or Aggregated Data to any third party, provided that it may disclose such data to its representatives and subcontractors in connection with the performance of the Service.
4.9 Your Obligations. You will: (i) provide Buoyant with all information and assistance required to provide the Software and Services and enable Your use thereof; (ii) immediately notify Buoyant of any unauthorized access, use, copying, distribution, or other suspected security breach in connection with the Software; (iii) not send to Buoyant or otherwise use any Content in connection with the Software and Services that otherwise protected by any Intellectual Property or proprietary right of any third party, or for which You do not own or has not procured
sufficient license, right, consent and permission to copy, disclose, store, broadcast, transmit, or otherwise use in connection with the Software and this Agreement; (iv) not upload or transmit any Content that contains unencrypted or unmasked: (a) bank, credit card or other financial account identification or login credentials, (b) social security, tax , driver’s license or other government issued identification numbers, or (c) health records of a particular individual unless a business associate agreement is entered into between You and Buoyant; (v) be responsible for all activity that occurs in Your or Your users’ accounts (and any transactions completed under Your accounts will be deemed to have been lawfully completed by You); (vi) monitor the Software and ensure that it is used only in compliance with the terms of this Agreement; (vii) set up, maintain, and operate Your computer networks, systems, and hardware in, through, or on which though the Software operate in good repair and in accordance with the Documentation; and (viii) cooperate and assist Buoyant as reasonably requested to enable Buoyant perform its obligations under the Agreement. You shall be responsible and liable for any and all non-compliance with this Agreement by You or by any person or entity who obtains access to the Software through You. With respect to all computer programs and data and hardware not provided by Buoyant and to be used or reproduced during Your use of the Software, You represent that You have all necessary rights to use or reproduce the computer programs and that no use of the Software in connection therewith shall be made that causes an infringement of the right of any third party. You shall be exclusively responsible for the supervision, management, and control of Your use of the Software, including, but not limited to (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; and (c) implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between You and Your employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software.
5. Intellectual Property Rights
5.1 Intellectual Property Rights.Ownership of Buoyant Property. You acknowledge that the Software is licensed and not sold and that Buoyant at all times retains ownership of all right, title and interest to the Buoyant Property (including the Software, Service, and Documentation) and the Intellectual Property Rights related thereto. Upon the request of Buoyant, you shall execute such instruments as reasonably necessary to evidence Buoyant’s ownership of the Software. All rights in and to the Buoyant Property not expressly granted to You in this Agreement are reserved by Buoyant and its suppliers. Except as otherwise expressly provided for in an Order, Buoyant shall own all right, title and interest to any Work Product created as part of the Professional Services and such Work Product shall not be considered to be works made for hire (as that term is used in the U.S. Copyright laws). Buoyant hereby grants You a nonexclusive, nontransferable, limited right to use any deliverables provided as part of the Work Product for Your internal business purposes solely in connection with the Your use of the Software. “Buoyant Property” means any technical information, technology, content, dashboards, screens, document or report templates, techniques, ideas, methods, processes, data, software, algorithms interfaces, utilities, documents, designs, user interfaces, trade secrets, know-how, intellectual property, information or materials of any kind (regardless of form) which has been or is acquired, created, developed or licensed by Buoyant prior to or outside the scope of this Agreement and any improvement, modification or other derivative works thereof and all Intellectual Property Rights therein; and expressly includes, without limitation, the Software, Services, and Documentation. “Work Product” means any deliverables, documents, materials, software, information, reports, data or other work product of any kind, regardless of form, which are created by Buoyant for You as part of the Professional Services.
5.2 Content. Buoyant acknowledges and agrees that as between Buoyant and You, You shall own all right, title and interest in any Content, including, all related Intellectual Property Rights. Buoyant shall not use or copy Content except as expressly permitted hereunder. “Content” means any data, software, documents, content, intellectual property or information of any kind (regardless of form) (i) acquired, developed, created or licensed by You prior to or outside the scope of this Agreement, and/or (ii) input in connection with Your use of the Software, but excluding Buoyant Property. Content does not include client account or relationship data that Buoyant uses in connection with a Technical Support request, or data collected by Buoyant to verify the support entitlement or to facilitate any communications.
5.3 Feedback. Any ideas, suggestions, guidance or other information shared by You with Buoyant which is derived from or related to the Software or Services shall be collectively deemed “Feedback”. Buoyant shall own, and You hereby assign to Buoyant, any Feedback, including all Intellectual Property Rights therein. You agree to take any action reasonably requested by Buoyant to evidence, perfect, obtain, maintain, enforce or defend the foregoing.
6. Fees, Taxes, & Payment Terms
6.1 Fees. You will pay Buoyant the fees includingapplicable taxes as set forth in the Order, invoiced in advance unless otherwise indicated in the Order. In the event that You request additional quantities during the Term, You will pay Buoyant’s standard rates in effect at the time of the request, which fees will be invoiced in advance and shall co-term with the current subscription term (unless otherwise set forth in the applicable Order). Fees are non-refundable except as expressly stated in other parts of the Agreement.
6.2 True-Up Fees. If the tracking, reporting or audit mechanisms provided for in this Section 6.2 determine that Your use of the Software has exceeded the usage limits permitted under the applicable Order, upon invoice, You shall pay the applicable excess fees as specified in the Order. You shall use the tracking and monitoring feature in the Software to verify Your usage complies with the subscribed volume set forth in the Order. If You have exceeded the permitted subscribed volume, You shall promptly report such overage to Buoyant. In addition, promptly upon request, but no more than twice (2x) per year, You shall provide Buoyant with a report via electronic means with confirmation of the applicable usage metrics over such reporting period.
6.3 Expenses. You will reimburse Buoyant for any and all reasonable, out-of-pocket, travel, administrative, equipment, and other expenses approved by You in writing and incurred in conjunction with delivery, implementation of the Software, and any additional services requested, which will be invoiced as incurred.
6.4 Payment. Unless otherwise expressly specified in the Order, payment of all invoices is due within thirty (30) days of the invoice date.
6.5 Taxes. You shall pay all fees and charges set forth in the Order plus any applicable taxes (other than taxes on Buoyant’s income) unless You timely furnish satisfactory proof of exemption. If any applicable law requires You to withhold amounts from any payments to Buoyant under this Agreement, (i) You will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Buoyant with tax receipts evidencing the payments of such amounts and (ii) the sum payable by You upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Buoyant receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Buoyant would have received and retained absent the required deduction or withholding.
6.6 Late Payments. Past due invoices will be subject to interest at the rate of one and one-half percent (1.5%) per month (or, if less, the maximum allowed by applicable law). You will be responsible for any costs of collection efforts, including reasonable attorneys’ fees and court costs, and Buoyant reserves the right to suspend its performance including suspend access to hosted Software pending payment.
6.7 Business Records. You will keep accurate records regarding Your use of the Software. You will promptly report to Buoyant any usage of the Software in excess of the quantity of clusters, users, and/or licenses set forth in Your Order(s).
7. Representations and Warranties; Warranty Disclaimer.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the right to enter into this Agreement and an Order, doing so will not interfere with its contractual obligations to any third party; (ii) the executed Agreement with Order and/or credit card payment shall constitute a valid binding obligation; and (iii) it will comply with all applicable law in performing its obligations under this Agreement.
7.2 Disabling Software. Buoyant represents and warrants that it shall use generally accepted industry best practices including the use of a leading virus detection product designed to prevent the Software, as delivered, from containing any program routine, device, or other undisclosed feature, including, without limitation, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, trojan horse, or trap door, that is intentionally designed to delete, disable, deactivate, interfere with or otherwise prevent Your use or access to the Software or which is intended to cause harm to Your systems.
7.3 Limited Software Warranty. This Section 7.3 shall apply solely to Your purchase and use of any On-Prem Software. Subject to the warranty and Support exclusions set forth herein or in any applicable support policy, Buoyant represents and warrants to You that during the Term (the “warranty period”) that the On-Prem Software will substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used in accordance with the Documentation, the Order and the terms and conditions of this Agreement. To state a valid warranty claim under this Section 7.3, You must provide Buoyant with written notice of the breach within thirty (30) days of date on which the breach occurred. If You notify Buoyant within the applicable warranty and notice period of a breach of the limited warranty set forth in this Section 7.3, Buoyant will, at its expense, as Your sole and exclusive remedy for breach of such warranty, use reasonable efforts to correct or replace the On-Prem Software with functionally equivalent software, and if Buoyant fails to correct the breach within thirty (30) days of its receipt of notice of the nonconformity, You shall have the option to extend the period for cure and repeat the cure process or terminate the affected Order.
7.4 Limited Professional Services Warranty. Buoyant represents and warrants to You for a warranty period of thirty (30) days from the performance of the Professional Services that the Professional Services will be performed in a diligent and professional manner, by appropriately qualified personnel, with the skills, knowledge, and training necessary to perform the Professional Services and that such personnel will perform such Professional Services in compliance with applicable law. If You notify Buoyant within the applicable warranty period of a breach of the limited warranty set forth in this Section 7.4, Buoyant will, at its expense, use reasonable efforts to correct the breach within thirty (30) days of its receipt of notice.
7.5 Warranty Disclaimer. Except for the limited warranties provided in this Agreement and any statutory warranty requirements which may not be limited or excluded, the Software and Services, provided hereunder are provided “as is” and Buoyant makes no warranties, whether express, implied or statutory regarding or relating to the Software and Services provided to You under this Agreement. Buoyant does not represent or warrant that the Software and Services will be delivered free of any interruptions, delays, omission or errors or in a secure manner. The Software and Services may be subject to limitations, delay and other problems inherent in the use of the internet and electronic communications. Buoyant is not responsible for any delays, delivery failures, or loss of Content or damages resulting therefrom. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ALL SUCH WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
8. Term and Termination
8.1 Term. This Agreement shall remain effective until termination in accordance with the terms hereof, or until the last day of the Your subscription to the Software, whichever occurs earlier. The Agreement generally comes with an Order Form (your “Order”) that specifies services and product editions for a particular initial term or period (the “Initial Term”) and any renewal terms or periods indicated therein (collectively, the “Term”). Unless expressly provided otherwise in your Order, the Initial Term is 12 months from the Effective Date of the Order and renewals are for successive 12 months periods and the term shall autorenew unless either Party gives the other Party written notice of its intent to terminate at least 30 days prior to the end of the then-current Term.
8.2 Termination. Either Party may terminate this Agreement or and Order if the other Party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. Buoyant may terminate this Agreement or any Order immediately for any reason or no reason upon written notice to You, including (x) for fraud, misrepresentation or other misconduct, (y) if You fail to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Buoyant’s delivery of written notice thereof; or (z) You breach any of Your obligations under Section 4 (License), 5 (Intellectual Property Rights) or 11 (Confidentiality). This Agreement and all Orders may be terminated at any time by either Party upon written notice, effective immediately, if the other Party: (i) becomes insolvent or is generally unable to pay its debts as they become due; or (ii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency applicable law. Upon expiration or termination of an applicable Order, (a) any amounts owed to Buoyant under this Agreement before such termination or expiration will be immediately due and payable; (b) all licenses granted will terminate and (c) You shall immediately cease use of the Software and delete any Software locally stored, any Buoyant Confidential Information and data (including all copies and extracts of thereof) then in your possession or control together with any and all documents, notes and other materials regarding the Software, and confirm in writing as to such action.
8.3 Survival. Upon expiration or termination hereof for any reason, the terms of the following sections shall survive: 1 (Definitions), 2 (Scope), 4.4 (License Restrictions), 5 (Intellectual Property Rights), 6 (Fees, Taxes, & Payment Terms), this 8.3 (Survival), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality), 12 (General), and any other provision that by its nature or to give effect to its meaning or purpose should survive termination or expiration of this Agreement.
9. Identification
9.1 Customer Indemnity. You shall be solely responsible for, and shall indemnify, defend, and hold Buoyant free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys' fees) from all claims, lawsuits, or other proceedings arising out of or relating to (i) Your use of the Software in a manner not permitted by this Agreement, not permitted by Buoyant, or not in conformance with the Documentation, (ii) the acts or omissions of You, Your employees, and agents and all persons or entities who have access through You to the Software, or (iii) relating to an infringement of any right resulting in any way from the use of the Software with other software or materials not licensed to You by or not approved by Buoyant.
9.2 Buoyant Indemnity. Buoyant will indemnify, defend or settle any action brought against You to the extent that it is based upon a claim that the Software, as delivered under this Agreement and used within the scope of this Agreement, directly infringes any United States patent or copyright, or misappropriates any trade secret, and will pay any damages that are finally awarded against You for such infringement or misappropriation. The foregoing duty to defend and indemnify does not apply to the extent arising out of or relating to any: (i) open source components; (ii) modification of the Software by You or a third party; (iii) failure to implement any Update or replacement of the Software made available to You by Buoyant; (iv) use of the Software other than in compliance with the Documentation, Order, and/or Agreement; or (v) use of the Software in combination with any Customer or third party software, system, hardware or data. If the Software is, or in Buoyant’s opinion is likely to be or is claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Right, Buoyant may, at its option and sole cost and expense: (x) obtain the right for You to continue to use the Software as contemplated by this Agreement; (ii) modify or replace the Software, in whole or in part, while providing materially equivalent functionality; or (iii) if the remedies set forth above are not available on commercially reasonable terms, terminate the affected Order(s), in their entirety, effective immediately on written notice to You, and provide You with a pro-rata refund of the prepaid fees representing the period of the Term post-termination.
9.3 Indemnification Procedure. Each Party will promptly notify the other Party in writing of any action for which such party seeks indemnification. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will have sole authority and control over the defense and settlement of such action, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings, at its own cost and expense, with counsel of its own choosing.
9.4 Sole Remedy. THIS SECTION 9 SETS FORTH YOUR SOLE REMEDIES AND BUOYANT’S SOLE LIABILITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SOFTWARE AND/OR DOCUMENTATION INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Limitation of Liability
10.1 Cap on Liability. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTIONS 10.2 AND 10.3, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUOYANT’S TOTAL AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID UNDER THE APPLICABLE ORDER FOR THE AFFECTED SOFTWARE AND/OR SERVICE FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH LIABILITY.
10.2 Indirect Damages. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 10.3, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUOYANT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE, LOSS OF CONTENT, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Exceptions to Limitations of Liability. NOTHING CONTAINED HEREIN SHALL LIMIT A PARTY’S RIGHTS OR REMEDIES UNDER STATUTORY LAW FOR VIOLATION OF ITS INTELLECTUAL PROPERTY RIGHTS. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
11. Confidentiality.
11.1 Nondisclosure. Scope and Definition. “Confidential Information” means all information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Software, logins, passwords and other access codes and any and all information regarding Buoyant’s business, products and services are the Confidential Information of Buoyant. Content is and shall remain Your Confidential Information.
11.2 Confidential Information will not include information which (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (v) is disclosed by operation of law, provided that the Disclosing Party receive notice of such disclosure, to the extent permissible under applicable law, and opportunity to oppose or limit it. The parties agree to hold each other’s Confidential Information in confidence during the Term and for three (3) years after the termination of this Agreement.
11.3 Personal Data. To the extent You provide personal data to Buoyant as part of the Content, Buoyant will treat such personal data as Your Confidential Information.
11.4 Use of Content. Buoyant may review and analyze Content to address a Technical Support request. Buoyant may use the results of that review and analysis, in combination with (i) data Buoyant collects from other customers regarding their use of the Software (such as configuration, performance, and usage data) and (ii) information Buoyant maintains about its customer’s account, to provide support to Buoyant customers, and to improve Buoyant products, services, and user experiences.
11.5 Disclosure of Content. If Buoyant is required by a subpoena, court order, agency action, or any other legal or regulatory requirement, to disclose any Content, Buoyant will provide Client with notice and a copy of the demand, as soon as practicable, unless Buoyant is prohibited from doing so pursuant to applicable law or regulation. At Your request and expense, Buoyant will take reasonable steps to contest and to limit the scope of any required disclosure.
11.6 Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information may cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such unauthorized disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or in equity.
11.7 Information Security. In accordance with applicable data protection laws, Buoyant shall take all commercially reasonable measures, but in no event less than industry standard for a provider of similar products and services as Buoyant, to protect the security and confidentiality of Your personal data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties.
General
In no event will Buoyant be liable or responsible to You, or be deemed to have breached this Agreement, for any failure or delay in performing under this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond Buoyant’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, export law, power or telecommunications failure. During the Term, either Party may include the name and logo of the other Party in its public lists of customers or vendors, unless either Party provides written notice to the other Party that it does not consent to such use. Any use of a Party’s name, logo or trademarks will be in accordance with the other Party's standard trademark usage guidelines and each party will comply with other party’s ongoing supervision as to the use of the other party’s marks. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in a state court in the City and County of San Francisco, California, and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. No waiver of rights under this Agreement by either Party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect. Although fully assignable and transferable by Buoyant, You may not assign this Agreement without the prior written consent of Buoyant, and any such attempted assignment or transfer shall be void and without effect. This Agreement may only be modified by a written document executed by the parties hereto. The terms of any purchase order or similar document submitted by You will have no effect. This Agreement may not be supplemented, explained or interpreted by any evidence of trade usage or course of dealing. All notices, including notices of address change, required to be sent hereunder will be in writing and will be deemed to have been given when delivered by nationally recognized express courier to the address listed below for Client or to the following for Buoyant: 548 Market St, PMB 43038, San Francisco, CA 94104-5401, Attn: Legal, and via email to legal@buoyant.io. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto.
