1.1 Services. Subject to the terms of this Agreement, Fivetran will use commercially reasonable efforts to provide the services identified on the Order Form to Customer. As used in this Agreement, the term “Services” includes the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Fivetran to Customer. As part of the registration process, Customer will identify an administrative username(s) and password(s) for Customer’s Fivetran user(s).
2.1 Use of Software Underlying Services. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Fivetran in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Appropriate Use of Services. Customer will not, and will not permit its users to:
(a) Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
(b) Attempt to access any other Fivetran systems that are not part of these Services.
(c) Excessively overload the Fivetran systems used to provide the Services.
(d) Use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
(i) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
(ii) Content or data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent's consent in the case of a minor);
(iii) Except as otherwise permitted by Fivetran in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
(iv) Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
2.3 Although Fivetran has no obligation to monitor Customer’s use of the Services, Fivetran may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.1 Confidential Information. Any party receiving confidential and Confidential Information from the other party (the “Receiving Party”) understands that the disclosing party (the “Disclosing Party”) has disclosed business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Fivetran includes non-public information regarding features, functionality and performance of the Services and Software. Confidential Information of Customer includes all data provided by Customer to Fivetran to enable the provision of the Services (“Customer Data”). “Confidential Information” (including Customer Data) shall not include any information that (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party without violation of the Disclosing Party’s rights, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law, provided that the Receiving Party will provide prompt notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent or narrow such disclosure.
3.2 Nondisclosure. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information from disclosure, provided that it shall use at least a degree of care not less than that used by it in dealing with its own information intended to remain exclusively within its knowledge, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or to divulge to any third person any such Confidential Information. Confidential Information shall remain confidential throughout the Term of this agreement and afterwards for up to two (2) years, or until it falls under one of the exceptions set forth in 3.3 below.
3.3 Exceptions to Confidentiality. The Receiving Party may disclose the Confidential Information to its respective officers, principals and employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement; except that in the event of any such disclosure, the Receiving Party (i) will instruct its respective officers, principals and employees, attorneys and accountants that such disclosure is made subject to the confidentiality requirements of this Agreement and (ii) the Receiving Party will be liable for any breach of such confidentiality requirements by its respective officers, principals and employees, attorneys and accountants.
4.1 Ownership Rights. Customer shall own all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing. Fivetran shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by Fivetran in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.2 Protection of Customer Data. Fivetran will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Fivetran personnel except (a) to provide the Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing.
4.3 Removal of Customer Data. Upon termination or expiration of this Agreement, in the event that Fivetran has any Customer Data, Fivetran shall delete all such Customer Data from its systems without retaining any copies thereof.
4.4 Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of this Sections 3 and 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of Sections 3 and 4.
5.1 Calculation of Fees. Customer will pay Fivetran the applicable subscription fees as described in the Order Form (the “Fees”). The initial Fees are identified on the Order Form. If Customer’s use of the Services exceeds the Services capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Fivetran will invoice Customer for such additional usage and Customer agrees to pay the additional Fees in the manner provided herein.
5.2 Payment Terms. Fivetran will bill through an invoice. Full payment for invoices issued in any given month must be received by Fivetran within thirty (30) days after the mailing date of the invoice (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than taxes based on Fivetran’s net income. If Customer believes that Fivetran has billed Customer incorrectly, Customer must contact Fivetran no later than 60 days after the date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Fivetran’s customer support department.
6.1 Term. Subject to earlier termination as provided below, this Agreement is for the Subscription Term specified in the Order Form (the “Initial Service Term”) and will renew automatically for additional one-year terms unless a party provides notice of nonrenewal to the other party at least thirty (30) days prior to expiration of the applicable term. The Initial Service Term and any renewal or extension of this Agreement after the Initial Service Term may be referred to herein as the “Term” of this Agreement.
6.2 Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets (“Termination for Cause”). If Fivetran terminates this Agreement for Customer’s breach, Customer remains obligated to pay the balance due on Customer’s account for the remainder of the Term, computed in accordance with the Order Form, and will be billed for such unpaid fees. If Customer terminates this Agreement for Fivetran’s breach, Customer shall be entitled to reimbursement on a pro-rated basis of that portion of Customer’s prepayment for the Services which covers any time period beyond the termination date.
6.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7.1 Authority. Each of Fivetran and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously be a corporation or other business entity in good standing in the jurisdiction of its formation.
7.2 Compliance with Laws. Each of Fivetran and Customer covenants that, at its sole respective cost and expense, it shall comply with all present and future national, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Services and Software (collectively “Laws”) including, without limitation, all data privacy and processing Laws.
7.3 Services Warranty. Fivetran shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform implementation and support Services in a professional and workmanlike manner. FIVETRAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND FIVETRAN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 By Fivetran. Fivetran shall indemnify, defend and hold harmless (by counsel reasonably satisfactory to Customer) Customer and Customer’s subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) (each a “Claim”) arising out of or in connection with (a) a breach of security that compromises Customer Data or (b) a third-party claim alleging that the Services infringe a third-party copyright, U.S. patent, or trademark; provided that Customer gives written notice of the Claim to Fivetran promptly after Customer becomes aware of the Claim. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Fivetran, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Fivetran, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Fivetran to be infringing, Fivetran may, at its option and expense (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
8.2 By Customer. Customer shall indemnify, defend and hold harmless (by counsel reasonably satisfactory to Fivetran) Fivetran, its licensors and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all Claims alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a third party, or violated applicable law; provided that in any such case Fivetran gives written notice of the Claim to Customer promptly after Fivetran becomes aware of such Claim.
9.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF FIVETRAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 DIRECT DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO FIVETRAN DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
10.1 No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
10.2 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided on the Order Form.
Any notices to Fivetran must be sent to:
405 14th Street, Suite 1050
Oakland, CA 94612
10.3 Enforceability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.4 Force Majeure. Subject to the further provisions of this Section, any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party (“Force Majeure”). The period of excused performance pursuant to the foregoing shall be (and shall be only) the actual period during which such an occurrence continues.
10.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all the Order Form), without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or subsequently all of its assets; but only if, substantially simultaneously with the assignment, the assignee executes and provides to the other party to this Agreement such documents as are reasonably required to evidence that such assignee is thereafter to be fully bound by the terms of this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6 Integration; Waivers. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
10.7 Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
10.8 Governing Law and Jurisdiction; Attorney Fees. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in San Francisco, California, U.S.A., and the parties agree to the exercise of jurisdiction by a state or federal court in such counties. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
This Terms of Service is effective as of August 1, 2016.