MEMFAULT, INC. CLOUD SOFTWARE AND SERVICES LICENSE AGREEMENT
Last updated: March 4, 2022
IMPORTANT – READ CAREFULLY. THIS MEMFAULT, INC. CLOUD SOFTWARE AND SERVICES LICENSE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN YOU (“LICENSEE” OR “YOU”) AND MEMFAULT, INC. (“MEMFAULT”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO THE MEMFAULT PRODUCT HOSTED BY MEMFAULT OR ITS OUTSOURCED PROVIDER. ALL REFERENCES IN THIS AGREEMENT TO THE “SALE” OR “PURCHASE” (OR OTHER SIMILAR TERMS) OF ANY SUBSCRIPTION OR PRODUCT SHALL MEAN THE SALE OR PURCHASE OF A LICENSE TO SUCH PRODUCT. TERMS NOT OTHERWISE DEFINED IN THE TEXT OF THIS AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN EXHIBIT A.
IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN ALL PERSONS ASSOCIATED WITH YOUR ENTITY WHO ACCESS OR USE THE PRODUCT PURSUANT TO THIS AGREEMENT SHALL BE INCLUDED AS “LICENSEE” OR “YOU” BELOW, AND SHALL BE SUBJECT TO ALL OF THE RESTRICTIONS AND LIABILITIES IN THIS AGREEMENT, AND THE ENITITY SHALL BE LIABLE FOR THE COMPLIANCE OR NON-COMPLIANCE WITH THIS AGREEMENT OF ALL SUCH PERSONS.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD CLICK ON CANCEL AT THE BOTTOM OF THIS PAGE AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE PRODUCT. DO NOT CLICK “I ACCEPT” UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU CLICK ON THE BOX AT THE BOTTOM OF THIS PAGE LABELED “I ACCEPT”, YOU WILL BE GRANTED ACCESS TO THE PRODUCT, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).
General Terms and Conditions
IMPORTANT NOTE: The “plain English” descriptions below are intended only as simple summaries of the legal text. They are not legal advice and do not form any part of this Agreement.
|1. Subscriptions; Delivery; Support.|
|How you can license Memfault’s Product:||1.1 Subscriptions. The Product is licensed pursuant to Subscriptions. Subscriptions will be licensed either (i) on a month-to-month basis if You enroll on Memfault’s website for Memfault’s no-cost Product Subscription or for month-to-month billing, or (ii) on an annual or multi-year basis if You and Memfault separately agree on an order form. All Subscriptions that do not terminate automatically will automatically renew unless terminated as set forth in Section 10.|
|Everything is delivered via the Internet.||1.2 Electronic Delivery. The Product will be delivered to You by giving You electronic access to the Product. Renewals will be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.|
|You get basic support.||1.3 Support. Memfault will use reasonable efforts to provide technical support by electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of U.S. Federal holidays. For non-paid (free) Subscriptions, in no event does Support include assistance with onboarding, integration, or consultation, training, or access to Memfault’s product roadmap.|
|2. Control of the Product; Maintenance; Storage and Backups; Excess Traffic.|
|Memfault decides how to provide its Product.||2.1 Control of the Product. The method and means of providing the Product shall be under the exclusive control, management, and supervision of Memfault. Memfault will provide and operate the Product in a professional and commercially reasonable manner in accordance with applicable law.|
|You’re responsible for your own computer and Internet.||2.2 Infrastructure. Each party shall retain sole responsibility for such party’s information technology infrastructure, including computers, servers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by such party or through the use of third-party services.|
|The Product may not always be available.||2.3 Maintenance. Memfault may schedule maintenance activities from time to time. Memfault will use reasonable efforts to provide advance notice of any other maintenance activities that may interrupt access to the Product, unless it is not reasonably able to do so.|
|You will not overload or disrupt Memfault’s systems.||2.4 You will not take or permit any actions which could interfere with the operation of the Product or any other licensee’s or customer’s use or enjoyment of the Product, including by interfering with, intruding into, disrupting, or making repeated accesses or requests that cause performance degradation to any network, equipment, server, or software system used to host or otherwise implement the Product. In addition to any other remedies available to Memfault hereunder, if you or your use of the Prodcut results or may result (in Memfault’s reasonable judgment) in any compromise, disruption or denial of service related to the Product, Memfault may (or may direct its third-party hosting provider to) (a) null-route any IP address/subnet that is deemed by Memfault to be disruptive to other Memfault licensees or customers, or (b) null-route, filter, suspend, or terminate your access to the Product, data and/or traffic from you, in whole or in part.|
|3. Ownership of Intellectual Property; License Grant; Restrictions.|
|Memfault continues to own all IP related to its Products and its website.||3.1 Ownership. The Product and Documentation contain proprietary and confidential information of Memfault and its licensors. Except to the extent licenses are expressly granted hereunder, Memfault and its licensors retain all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to the Product and Documentation. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Memfault’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by You of any such parts of the website, Product, or Documentation, except as expressly authorized by this Agreement, is prohibited. Memfault shall own all right, title and interest, including all intellectual property rights, in and to any intellectual property created by Memfault and delivered to You pursuant to this Agreement or otherwise created by Memfault in the course of providing the Product or Support under this Agreement.|
|Memfault grants to rights to use its Product.||3.2 License Grants. Subject to Your compliance with this Agreement and in consideration of timely payment by You of the license fees hereunder (if any), Memfault hereby grants to You, solely during the applicable Subscription term, a royalty free, limited, personal, non-exclusive, non-transferable license to: (i) access and use the Product via the Internet address provided to You by Memfault; and (ii) use the Documentation.|
|Though You have certain rights, there are also things you promise that You will not do related to the Product.||3.3 icense Restrictions: Subscription Type and Subscription Term. Unless otherwise agreed to in writing between Your and Memfault, the following terms and conditions apply.
a. In addition to the other terms and conditions of this Agreement, non-paid (free) Subscriptions (other than those non-paid Subscriptions at the Partnership Benefit level) are subject to the following terms and conditions. All users exercising rights under any non-paid Subscription to a Memfault Product who are associated in any way with the same Entity must have their accounts registered with Memfault under the same, single organization originally designated by the Licensee. For purposes of clarity, all of the limitations in this Section 3.3 apply in the aggregate to every user of every non-paid Memfault Subscription at an entity; creating multiple organizations and accounts within a single Entity shall not operate to expand in any way the use restrictions provided for in this Section 3.3, and you agree not to create or attempt to create such multiple organizations within a single Entity. In addition, such Subscriptions:
(i) may be used for a maximum of 10 active Devices;
(ii) all Devices must be on a single architecture, with the same or substantially the same chipset and/or firmware image);
(iii) if the Devices are used for any commercial purpose (excluding only personal / hobbyist use), then all Devices must be owned, controlled and solely used internally by the Entity exercising the rights licensed under this Agreement;
(ii) may send an aggregate maximum of 5 time series metrics per day, calculated including all active Devices;
(iii) may send an aggregate maximum of 10 core dumps uploaded per day, calculated including all active Devices;
(iv) may have a maximum of 3 alerts configured at any one time, calculated including all active Devices;
(v) unless You and Memfault agree to the terms of a paid Subscription, terminate at Memfault’s option if You exceed any of the use limitations set forth in this Section 3.3; and
(vi) in all cases expire, and all rights terminate, after 90 days.
b. In addition to the other terms and conditions of this Agreement, non-paid (free) Subscriptions at the Partnership Benefit level are subject to each of the preceding terms and conditions set forth in Section 3.3(b), with the following exceptions. Such Subscriptions:
(i) may be used for a maximum of 100 active Devices;
(ii) do not automatically expire after 90 days; and
(iii) are eligible for prioritized support responses.
|Though You have certain rights, there are also things you promise that You will not do related to the Product.||3.4 License Restrictions: General. You shall not: (i) remove, alter or obscure any of Memfault’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Memfault’s (or its licensors’) ownership or contribution from the Product; (ii) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Product or any part thereof; (iii) make the Product available to, or use the Product for the benefit of, anyone other than You or Your customers; (iv) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Product, or include any Product in a service bureau or outsourcing offering; (v) permit direct or indirect access to or use of the Product in a way that circumvents a contractual usage limit; (vi) copy the Product or Documentation or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement; (vii) frame or mirror any part of the Product, other than framing on Your own intranet or otherwise for Your own internal business purpose; or (viii) access or use any Product in order to build a competitive product or service.|
|You also promise you won’t do things to harm Memfault’s systems or any other Memfault customer.||3.5 License Restrictions: Cloud Infrastructure. In addition to the other restrictions provided for in this Agreement, You agree that You will not (i) access the Product for or upload to the Cloud Infrastructure anything unlawful, misleading, malicious or discriminatory; (ii) work around any technical limitations in the Cloud Infrastructure, use any tool to enable features or functionality that are otherwise disabled in the Cloud Infrastructure; (iii) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Infrastructure, prevent access to or use of the Cloud Infrastructure by Memfault’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests); (iv) upload or transmit to the Cloud Infrastructure any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure; or (v) access or attempt to access any accounts or data on the Cloud Infrastructure, other than those explicitly belonging to You or provided by Memfault for Your use.|
|4. Your Responsibilities; Grant by You.|
|You have to give us information to enable Your account, and You’ll keep that info secret.||4.1 You will provide accurate, current and complete information required to enable Your use of the Cloud Infrastructure, and will maintain the accuracy of such information. Without limiting any other responsibilities You have under this Agreement, You are responsible for the actions of anybody accessing the Cloud Infrastructure using the credentials of any licensee under this Agreement, and of any other individuals to whom You have given access to the Product.|
|You take responsibility for anything You upload.||4.2 You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Licensee Data.|
|Memfault can use your data to provide the Product.||4.3 You grant to Memfault a non-exclusive, worldwide, royalty-free license to store, record, transmit, maintain, use, copy, perform and display the Licensee Data to the extent reasonably necessary to carry out its obligations under this Agreement.|
|5. Fees; Payments.|
|Your promise to pay is not cancellable.||5.1 Accrual of Payment Rights. Memfault’s right to payment for the Product, if applicable, shall accrue on the date the Product is Delivered. All payments accrued or made under this Agreement are non-cancelable and nonrefundable.|
|Some Subscriptions are free. For others, You’ll have to provide a credit card or be invoiced.||5.2 Invoicing and Payment.
(a) To license a Subscription, You may have the option of a Subscription which is free of charge for a limited number of Devices, but for which fees apply once you exceed for the first time the limited number of free Devices.
(b) If you license a paid month-to-month Subscription, or you license a month-to-month Subscription which is initially free but may become paid once you first exceed a limited number of free Devices, then you must submit your credit card and you agree to an initial and recurring subscription fee (which in the case of an initially free Subscription will begin to be charged from the first time you exceed the limited number of free Devices.
(c) Memfault will automatically charge You (i) for month-to-month Subscriptions, monthly in arrears based on Your actual use of the Product during the preceding month and (ii) for annual or multi-year subscriptions at the start of each annual term. For all annual (or multi-year) Subscriptions, unless otherwise agreed between Memfault and You, payment of the License Fee is due within thirty days of Your receipt of Memfault’s invoice. For any Subscription being charged to a credit card, You accept responsibility for all recurring charges until You or Memfault cancels the applicable Subscription. By subscribing for any paid Subscription and providing Memfault with credit card information, You authorizes Memfault to charge such credit card for all applicable Products.
|If we have to go to collections, You pay that cost.||5.3 Costs of Collection. Memfault shall be entitled to reimbursement for any reasonable costs associated with the collection of any past-due balance.|
|If taxes are applicable, You will pay them.||5.4 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Product, including but not limited to, withholding taxes, will be paid by You, except that You will not be liable for taxes imposed on Memfault based on Memfault’s income.|
|6. Warranties; Disclaimer.|
|You promise that You have the rights to any data you upload.||6.1 Your Warranty. You represent and warrant that You own all Licensee Data or have all rights that are necessary to grant Memfault the licensed rights in Licensee Data under this Agreement. You also represent and warrant that the Licensee Data does not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.|
|Memfault’s product is provided “as is”.||6.2 NO WARRANTIES BY MEMFAULT. THE PRODUCT AND DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND MEMFAULT HEREBY DISCLAIMS ALL EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MEMFAULT DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE WITHOUT INTERRUPTION, BE ERROR FREE OR THAT THE PRODUCT WILL SUCCEED IN RESOLVING ANY PROBLEM. LICENSEE ACKNOWLEDGES THAT THE NATURE OF INTERNET-BASED SERVICE DELIVERY IS SUCH THAT CONFIDENTIALITY AND PERFORMANCE CANNOT BE COMPLETELY ASSURED. MEMFAULT SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY UNAUTHORIZED ACCESS, USE, CORRUPTION OR LOSS OF ANY OF LICENSEE DATA, EXCEPT TO THE EXTENT THAT SUCH UNAUTHORIZED ACCESS, USE, CORRUPTION, OR LOSS IS DUE SOLELY TO MEMFAULT’S GROSS NEGLECT OR MISCONDUCT.|
|If Memfault gets sued because of Your data, You will pay all the costs.||7.1 Indemnification. You will defend and indemnify Memfault from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys’ fees) (“Claims”) arising out of or relating to the intellectual property rights or privacy rights in any of the Licensee Data.|
|Memfault will let You defend any lawsuit related to Section 7.1||7.2 Conditions. Memfault’s will give You notice of any Claim promptly upon becoming aware of it; and will give You the opportunity to have sole control of the defense and settlement of any Claim (provided that You will not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of Memfault).|
|8. Limitation of Liability.|
|In most cases, no one is responsible for indirect damages.||8.1 Limitation on Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 8.2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.|
|Memfault will never be responsible for certain named categories of damages.||8.2 Certain Damages Excluded Entirely. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL MEMFAULT WILL BE LIABLE FOR ANY LOSS OF PROFITS OR LOST REVENUE, OR FOR ANY PUNITIVE OR SPECIAL DAMAGES, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER, AND WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.|
|Memfault’s maximum liability to You is limited.||8.3 Maximum Liability. TO THE FULLEST EXTENT ALLOWABLE BY LAW, MEMFAULT’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO MEMFAULT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE UNDER THIS AGREEMENT.|
|Memfault won’t be responsible for Personal Information You may upload.||8.4 Personal Information. Without limiting any of the foregoing or any other provision of this Agreement, and to the full extent allowable by applicable law, Memfault shall have no liability to Licensee for any unauthorized access to, or use, corruption or loss of, any Personal Information which may be contained in the Licensee Data, except to the extent that such unauthorized access, use, corruption, or loss is judicially determined to be due to Memfault’s neglect or misconduct or breach of the terms of this Agreement. Despite any other provision of the Agreement, in the case of loss or Personal Information due to actions or inactions of Memfault, Licensee’s sole remedy shall be for Memfault to restore such Personal Information from the latest available backup, if any.|
|Memfault and You both agree to protect each other’s confidential information.||9.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential and not disclose to any third party all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. At a minimum, the Receiving Party agrees to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Confidential Information shall mean any information which, by its nature or circumstances of disclosure, would reasonably be presumed to be confidential. Despite the foregoing, the Product and Documentation, and Memfault’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be Confidential Information.|
|Certain information is never treated as confidential.||9.2 Exceptions. Required Disclosures. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the receiving party with the disclosing party’s approval; or (e) is independently developed by the receiving party without any use of Confidential Information of the disclosing party. In the event that the receiving party is required by law to make any disclosure of any of the Confidential Information of the disclosing party, by subpoena, judicial or administrative order or otherwise, the receiving party shall first give written notice of such requirement to the disclosing party, and shall permit the disclosing party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the disclosing party in seeking to obtain such protection.|
|Memfault can use certain data for analytics and to improve its products.||9.3 Collection of Certain Data; Anonymized Use for Analytics. Memfault may collect data (including data derived from Licensee Data) with respect to the aggregate response rate and other aggregate measures of the Product’s performance, as well as information about Licensee’s activation, configuration, and use of the Product. Memfault may use the information collected to verify Licensee’s licensing, provide technical support, and (solely in an anonymized form from which Licensee cannot be identified) to otherwise improve and enhance the Product and for other development, diagnostic and corrective and marketing purposes in connection with the Product and other Memfault offerings.|
|Money damages may not be enough; a court can force a party to stop doing something.||9.4 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).|
|Each party has to return or destroy the other party’s confidential information if this agreement ends.||9.5 Return of Information. Upon expiration or termination of this Agreement for any reason, the receiving party will destroy (or at the request of the disclosing party, return) all copies of all Confidential Information of the disclosing party in its possession or under its control. Despite the foregoing, the receiving party (a) shall not be required to return or destroy copies of the disclosing party’s Confidential Information from its disaster recovery and/or business continuity databases, where doing so would be commercially impracticable, and (b) may retain a single archive copy of the Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided that in either case the receiving party maintains the Confidential Information in compliance with the terms of this Agreement until destroyed, which shall occur as soon as reasonably practicable.|
|10. Term and Termination.|
|This Agreement goes until terminated.||10.1 This Agreement shall continue until terminated in accordance with the provisions of this Section 10.|
|These are the ways You or Memfault can terminate this Agreement. Some Subscriptions terminate automatically.||10.2 This Agreement, and any license granted thereby, may be terminated:
(a) immediately by either party if the other party commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within fifteen days of a written request to remedy the same;
(b) immediately by Memfault upon its reasonable determination that Licensee’s use of the Product poses a threat to the secure or reliable provision of Product to other customers, or to the Cloud Infrastructure, or to the data contained therein, or that Licensee’s use of the Product violates any applicable law or regulation;
(c) by either party for convenience upon giving the other party written notice at least sixty days prior to the requested termination date of the applicable subscription;
(d) by you at any time during the term of any trial Subscription or beta Subscription; and/or
(e) automatically as set forth in Section 18.104.22.168 In addition, (i) Licensee may terminate month-to-month Subscriptions by providing written notice of non-renewal to Memfault at least thirty days prior to the requested termination date of the applicable subscription, and (ii) Licensee may terminate annual or multi-year Subscriptions by providing written notice of non-renewal to Memfault at least thirty days prior to the end of any then-current term.
10.4 Despite any other provision of this Agreement to the contrary, if you are licensing a trial version or beta version of the Product, then this Agreement (and any licenses granted to you under this Agreement) shall automatically terminate at the end of your trial or beta period. To continue with a license to the Product after the end of your trial or beta period, you must purchase a standard, commercial, non-trial and non-beta Subscription to the Product.
|Certain sections survive termination.||10.5 Sections 3.1, 3.3, 3.5, 5-9, 10-5-10.6, 11, 12.1 and 14, all associated definitions and all accrued rights to payment shall survive any expiration or termination of this Agreement.|
|Termination is not the only remedy for problems.||10.6 Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.
11. Import and Export Regulations. The Product is subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Product to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations).
|12. Privacy and Security.|
|Don’t upload any Personal Information without full rights to it.||12.1 No Personal Information. You will not transfer or otherwise make available to Memfault any Personal Information unless You have obtained a valid consent from the relevant data subject in accordance with the terms of the GDPR or any other Applicable Privacy Laws permitting such transfer and the use by Memfault (being based in the United States) and its subcontractors of such Personal Information as required for the performance of this Agreement.|
|Memfault and You both agree to comply with the law related privacy and security.||12.2 Security Standards. Each party agrees to abide by (i) all applicable local, state, national, and international laws and regulations in connection with providing and using the Product, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the Product and all Applicable Privacy Laws. Memfault will, taking into account the nature of the personal data and the risks involved in the processing of any such personal data, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to ensure the security and confidentiality of personal data. Despite the foregoing, Licensee acknowledges that the storage and processing of data, and the assurances published by Amazon (including Amazon Web Services), salesforce.com and heroku meet the requirements of this Section.|
|No one is responsible for most uncontrollable circumstance.||13. Force Majeure. Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, requirements or regulations of any civil or military authority.|
|Giving up one right doesn’t mean you give up all rights.||14.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.|
|Here’s how we provide notices to each other.||14.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, or sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time.|
|If one section of the Agreement is invalid, that doesn’t affect the rest of the Agreement.||14.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.|
|You can’t assign this Agreement.||14.4 Assignment. Licensee shall not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of Memfault.|
|Headings and summaries have no legal meaning.||14.5 Headings and Summaries. Headings to paragraphs or sections and all summaries in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.|
|All disputes will be settled in San Francisco under CA law.||14.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for any dispute, claim or controversy arising out of or relating to this Agreement shall be in the courts of San Francisco County, California.|
|We’re not each other’s employees or agents.||14.7 Independent Contractors; No Third Party Rights. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party. This Agreement does not, and is not intended to, confer any benefit on, nor create any right exercisable or enforceable by, any third party.|
|If there’s a lawsuit, the winner gets their legal fees paid by the other party.||14.8 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.|
|This Agreement can only be changed if we agree in writing.||14.10 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.|
|If You are a government agency, certain additional terms apply.||14.11 U.S. Government Rights. Memfault does not develop any technical data or computer software pursuant to this Agreement. In addition, the Product is a commercial product that was developed at private expense by Memfault. The Product is a “commercial item” as that term is defined at FAR 2.101. If Licensee is a U.S. Federal Government (Government) Executive Agency (as defined in FAR 2.101), Memfault provides the Product and Documentation, including any related software, technology, technical data, and/or professional services, in accordance with this Section. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, except under any GSA schedule contract, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Memfault to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.|
|Memfault can use your name for publicity.||14.12. Publicity. Licensee grants to Memfault the right to use Licensee’s company name and logo as a reference for marketing or promotional purposes on Memfault’s website and in other public or private communications with Memfault’s existing or potential customers, subject to Licensee’s standard trademark usage guidelines as provided to Memfault from time-to-time.|
THIS AGREEMENT, INCLUDING ALL EXHIBITS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF PURCHASE ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO LICENSEE PURCHASE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.
” Applicable Privacy Laws” means, in relation to any personal information that is processed in the provision of the Product, the applicable legislation on the protection of identifiable individuals, including where applicable the California Consumer Privacy Act, the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4), the Health Information Portability and Accountability Act of 1996 and the rules promulgated thereunder (“HIPAA”), and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”) and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statues, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities .
“Cloud Infrastructure” means the Product, and the computing, storage, networking, and other hardware and software infrastructure used in providing the Product .
“Delivery” means the availability of the Product by Memfault to the Licensee via electronic means, without regard to when Licensee actually accesses or uses the Product.
“Device” means any hardware unit that has the Memfault SDK installed on it.
“Documentation” means the instruction manuals, user guides, training materials or other materials and information made available to Licensee from time to time by Memfault, in either printed or electronic form.
“Entity” means any corporation, partnership or similar entity, including all of such entity’s parent companies, subsidiaries, and affiliated entities.
“Licensee Data” means all information, content and data provided by or on behalf of Licensee and made available or otherwise distributed through use of the Product and stored by Licensee or at Licensee’s direction on the Cloud Infrastructure.
“Personal Information” means personal health information, personal data or personally identifiable information (as such terms are defined in the GDPR or any other Applicable Privacy Laws).
“Product” means the Memfault SaaS product licensed under this Agreement and the Documentation.
“Subscription” means licenses to the Product and support.