CHAOSSEARCH Terms of Service
Last Updated: December 8, 2018
These Terms of Service govern your access to and use of the CHAOSSEARCH service (the “CHAOSSEARCH Service”). These Terms of Service limit CHAOSSEARCH’s liability and obligations to you, impose certain obligations on you, allow CHAOSSEARCH to suspend or terminate your access to and use of the CHAOSSEARCH Service, and provide you with other important information with respect to the provision and use of the CHAOSSEARCH Service.
You agree that by signing up to use the CHAOSSEARCH Service or by using the CHAOSSEARCH Service, you are entering into a legally binding agreement with CHAOSSEARCH, Inc. in Boston, Massachusetts, USA (“we,” “us,” “our,” and “CHAOSSEARCH”). IF YOU RESPOND BY CLICKING ON THE “LOG IN”, “SIGN UP”, “I AGREE”, “I ACCEPT” OR SIMILAR BUTTON, OR BY EXECUTING AN ORDER FORM WITH CHAOSSEARCH, TO WHICH THIS AGREEMENT IS LINKED, REFERENCED OR OTHERWISE ATTACHED, YOU ACKNOWLEDGE AND AGREE THAT (I) IF YOU ARE USING THE CHAOSSEARCH SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS AND (II) YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE AND ARE AGREEING THAT YOU AND SUCH ENTITY WILL BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE NOT AUTHORIZED TO BIND SUCH ENTITY TO THESE TERMS OF SERVICE OR DO NOT AGREE TO THE TERMS OF SERVICE, DO NOT CLICK ON THE “LOG IN”, “SIGN UP”, “I AGREE”, “I ACCEPT” OR SIMILAR BUTTON, DO NOT CONCLUDE THE SIGN UP OR REGISTRATION PROCESS, DO NOT EXECUTE THE ORDER FORM, AND DO NOT USE THE CHAOSSEARCH SERVICE.
CHAOSSEARCH may update these Terms of Service from time to time, to, among other things, reflect changes to the CHAOSSEARCH Service. We will notify you of changes to these Terms of Service by posting an updated version https://chaossearch.io/terms-of-service/ and will revise the “Last Updated” date above. We encourage you to periodically review these Terms of Service to be informed with respect to your and CHAOSSEARCH’s rights and obligations with respect to the CHAOSSEARCH Service. Using the CHAOSSEARCH Service after a notice of changes has been sent to you or published on the CHAOSSEARCH Service shall constitute consent to the changed terms and practices.
If you have executed an order form with CHAOSSEARCH for the CHAOSSEARCH Service (an “Order Form”), then, in the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of the Agreement shall control unless the Order Form indicates the specific provision(s) of this Agreement that it overrides. Your execution of an Order Form constitutes a binding noncancelable commitment to subscribe for the CHAOSSEARCH Service described on the Order Form under the terms and conditions of the Agreement and the Order Form. Each Order Form is incorporated by reference herein and all references to the Agreement herein are deemed to include all Order Forms entered into by you with CHAOSSEARCH.
Defined terms used herein shall have the meaning accorded to such terms herein. In addition, the following terms shall have the following meanings:
“Account Information” means information about you that you provide to us in connection with the creation or administration of your CHAOSSEARCH account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your CHAOSSEARCH account.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the CHAOSSEARCH Service under your account.
“CHAOSSEARCH Content” means content we make available in connection with the CHAOSSEARCH Service or on the CHAOSSEARCH website to allow access to and use of the CHAOSSEARCH Service and to provide information and training with respect to the use of the CHAOSSEARCH Service, including APIs, WSDLs, tools, user manuals, guides and other documentation, sample code, software libraries, command line tools, proofs of concept, templates, and other related technology.
“Subscription Start Date” means the date on which your subscription to the CHAOSSEARCH Service starts, as set forth in an Order Form or selected in the online ordering process.
“Subscription Period” means the period of time during which you have subscribed to the CHAOSSEARCH Service, as set forth in an Order Form or selected in the online ordering process.
“Your Content” means Content that you or any End User transfers to us for processing, analysis or other use by the CHAOSSEARCH Service in connection with your CHAOSSEARCH account and any computational results that you or any End User derive from the foregoing through their use of the CHAOSSEARCH Service. For example, Your Content includes content that you or any End User transmit to the CHAOSSEARCH Service from your Amazon Web Services Simple Storage Solution (“AWS S3”). Your Content does not include Account Information.
1. Use of the CHAOSSEARCH Service; Entitlements; Third Party Services.
1.1 Access and Use. You may access and use the CHAOSSEARCH Service (and permit your End Users to access and use the CHAOSSEARCH Service) in accordance with this Agreement and only for your internal operations only for the time period (the” Subscription Term”) that you have paid/or agree to pay the applicable fees. You agree that you will comply with the terms of the Agreement and all laws, rules and regulations applicable to your use of the CHAOSSEARCH Service. Further, you agree that you agree that you shall only use the CHAOSSEARCH Service in accordance with its documentation made available to you by CHAOSSEARCH through the CHAOSSEARCH Service or on the CHAOSSEARCH website. CHAOSSEARCH retains the right in its sole discretion, at any time, to change the features, functionality, design, components, and/or specifications of the CHAOSSEARCH Service or any components thereof and/or discontinue the sale or availability of the CHAOSSEARCH Service or any component thereof without liability to your or your End Users; provided, that if the CHAOSSEARCH Service is discontinued or if any changes to the CHAOSSEARCH Service materially adversely decrease the functionality of the CHAOSSEARCH Service, you shall have the right to terminate your subscription to the CHAOSSEARCH Service by providing CHAOSSEARCH with written notice within thirty (30) days from the date of the change or discontinuation, as applicable. Use of CHAOSSEARCH Content is subject to any additional terms and conditions provided with such CHAOSSEARCH Content.
1.2 Service Capacity. The CHAOSSEARCH Service includes monthly compute capacity to aggregate and/or query 9000X contracted daily volume. “Aggregate” of 1x is equivalent to aggregating a 24-hour time range by queries, dashboards, or other means of CHAOSSEARCH Service data analysis. “Query” is defined as the amount of data required to resolve a search, retrieving data from index in order to be further analyzed, by queries, dashboards, or other means of CHAOSSEARCH Service data analysis. The following limitations are referred to as “Index Service Capacity”. If you exceed the monthly Index Service Capacity you will be charged for overages at the standard retail priced rate of $20 per GB of daily volume overage. If you exceed the monthly Query Service Capacity additional usage will be charged at a rate of $0.50 per TB of query.
1.3 Third Party Services. CHAOSSEARCH may offer you the ability to use third party services and applications which have been separately subscribed to by you from a third-party provider (“Third Party Services”) with the CHAOSSEARCH Service. You acknowledge and agree (i) the use of Third Party Services may require you to agree to separate terms and conditions with the third- party provider of the Third Party Services which will govern your use of the Third Party Services; (ii) that the interoperation Third Party Services with the CHAOSSEARCH Service will enable the third-party provider of the Third Party Services to access Your Content to the extent required for the interoperation with CHAOSSEARCH Service; and (iii) the Third Party Services are made available by the third-party provider, not CHAOSSEARCH, and, accordingly, CHAOSSEARCH is not responsible for providing any warranties or technical support for Third Party Services and is not responsible for your or your End Users’ access to or use of Third Party Services, nor for any damage or loss caused or alleged to be caused by or in connection with your or your End Users’ enablement, access or use of, any Third-Party Services.
1.4 Amazon Web Services. The CHAOSSEARCH Service requires that you have a current subscription to Amazon Web Services and an AWS S3 account. If you do not have a current subscription to Amazon Web Services or an AWS S3 account or your Amazon Web Services or AWS S3 account is terminated for any reason, you acknowledge and agree that the CHAOSSEARCH Service will no longer be able to be used by you or your End Users. For the avoidance of doubt, Amazon Web Services and AWS S3 are Third Party Services as described in and subject to Section 1.4 above.
You shall have the option, prior to data ingestion, to configure the CHAOSSEARCH Service to forward a copy of all of your log data (standard CHAOSSEARCH format – not configurable) to your AWS S3 bucket, hereinafter referred to as “Data Forwarding”. The Data Forwarding feature writes off a copy of the ingested log data every few minutes to the AWS S3 bucket. This feature will not work retroactively and must be configured prior to data ingestion. If you choose, to use this “Data Forwarding” feature, you may do so, provided that 1) You purchase and maintain an AWS S3 bucket; and 2) you provide the credentials to the AWS S3 bucket to the CHAOSSEARCH Service, prior to the ingestion of your log data.
You agree to comply with the Acceptable Use Policy referenced above. Further, you will not, and will not permit any third party to: (i) reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such statute), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the CHAOSSEARCH Service or any software, documentation or data related to the CHAOSSEARCH Service; (ii) modify, translate, or create derivative works based on the CHAOSSEARCH Service; (iii) use in excess of your Compute Capacity as defined in Section 1.2 above; (iv) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas; (v) rent, lease, resell, sublicense or otherwise use the CHAOSSEARCH Service to provide services to a third party such as for time sharing or service bureau purposes, or (vi) use the CHAOSSEARCH Service for any purpose other than your own internal business purposes. You are expressly prohibited from accessing or using the CHAOSSEARCH Service for any competitive purposes or for the purposes of copying any features, functionality or other aspects of the CHAOSSEARCH SERVICE.
3. Support Service; Service Level Availability.
3.1 Support Services .Support for the Service shall be provided to you in accordance with the terms specified at https://chaossearch.io/support-terms-and-conditions/. Notwithstanding the foregoing, you acknowledge that we are not required to provide support during any free trial periods.
3.2 Service Level Availability. CHAOSSEARCH will use its commercially reasonable efforts to ensure that the CHAOSSEARCH SERVICE have monthly availability of at least 99.5% excluding downtime for scheduled and emergency maintenance and downtime beyond the reasonable control of CHAOSSEARCH. CHAOSSEARCH will monitor availability of the CHAOSSEARCH Service on a 24x7x365 basis. If the CHAOSSEARCH Service has monthly availability below 99% in any two out of six months during a twelve-month period, your sole and exclusive remedy shall be for you to terminate your subscription to the CHAOSSEARCH Service by providing written notice to CHAOSSEARCH within thirty (30) days from the end of the second month. CHAOSSEARCH will not have any liability if you or your End Users are not able to access the CHAOSSEARCH Service due to any unavailability of Amazon Web Services or your Amazon Web Services account. Further, this service level availability commitment will not apply during any free trial periods.
4. Your Responsibilities.
4.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
4.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the CHAOSSEARCH Service will not violate the Acceptable Use Policy or any applicable law, rule, or regulation. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.
4.3 Your Security and Backup. You are responsible for properly configuring and using the CHAOSSEARCH Service and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption in transit and at rest to protect Your Content from unauthorized access and for routinely archiving Your Content.
4.4 Log-In Credentials and Account Keys. Log-in credentials and private keys generated by the CHAOSSEARCH Service are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
4.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the CHAOSSEARCH Service. You are responsible for End Users’ use of Your Content and the CHAOSSEARCH Service. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the CHAOSSEARCH Service by such End User.
4.6 Primary Contact. You will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). You may change the individual designated as Primary Contact at any time by providing written notice to CHAOSSEARCH.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary 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 Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, 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, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, CHAOSSEARCH may collect data with respect to and report on aggregate measures of the CHAOSSEARCH Service performance and other measures to enhance the performance of the CHAOSSEARCH Service.
CHAOSSEARCH agrees that all information and data generated, processed, or stored on the Service (as intended usage of the CHAOSSEARCH Service), including Customer’s log and machine-generated data produced by applications and systems are Customer’s Proprietary Information. Except for such Proprietary Information, Customer acknowledges that CHAOSSEARCH does not wish to receive any Proprietary Information from Customer that is not necessary for CHAOSSEARCH to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, CHAOSSEARCH may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
6. Fees and Payment.
6.1 Fees. You agree to pay CHAOSSEARCH the fees for your subscription to the CHAOSSEARCH Service as set forth in an Order Form or agreed to in the online ordering process. The fees for the CHAOSSEARCH Service are due and payable annually in advance on the Subscription Start Date and, for each renewal of your Subscription Period, each anniversary of the Subscription Start Date. All fees are payable in US Dollars and are nonrefundable except as expressly otherwise provide herein. CHAOSSEARCH reserves the right to modify the fees at any time, upon 30 days prior written notice to you, which may be provided by e-mail to the e-mail address included in your Account Information; such new prices shall not apply to the annual Subscription Period for which you have already been paid, but shall apply to any renewal Subscription Period commencing after the effective date of change in fees.
6.2 Service Capacity Overages. If your use of the Service exceeds the Service Capacity that you are currently enrolled in, you will be invoiced at the then current list price for such overages for the applicable month, in arrears.
6.3 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
6.4 Disputes. If you dispute an invoice, you must notify CHAOSSEARCH in writing of any dispute within thirty (30) days of your receipt of an invoice, setting forth in reasonable details grounds for disputing the invoice. If you fail to dispute an invoice within such thirty (30) day period, you waive all rights to later dispute the invoice. You understands and agrees that you failure to pay undisputed fees when due shall give CHAOSSEARCH the right to suspend access to the CHAOSSEARCH Service and may be treated as a material breach of this Agreement pursuant to the terms of Section 8.
6.5 Billing Information. You are responsible for maintaining complete and accurate billing and contact information for the Service.
7. Proprietary Rights; Data Collection.
7.1 Your Content. Except as provided in this Section 7, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the CHAOSSEARCH Service to you and any End Users. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the CHAOSSERCH Service will violate the Acceptable Use Policy.
7.2 Ownership of CHAOSSEARCH Service. We or our licensors own all right, title, and interest in and to the CHAOSSEARCH Service, the CHAOSSEARCH Content, and all related technology and intellectual property rights. All rights not expressly granted to you are reserved by CHAOSSEARCH. CHAOSSEARCH alone (and its licensors, where applicable) will retain all intellectual property rights relating to the CHAOSSEARCH Service, the CHAOSSEARCH Content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the CHAOSSEARCH Service and/or the CHAOSSEARCH Content (“Suggestions”), and you hereby assign to CHAOSSEARCH all of your right, title and interest in and to all of the foregoing and all intellectual property rights therein and agree to provide us with any assistance we require to document, perfect and maintain our rights in the foregoing.
7.3 Aggregate Data. You acknowledge and agree that CHAOSSEARCH may collect certain data and information as a result of your and your End Users’ access and use of the CHAOSSEARCH Service. This data when aggregated with other CHAOSSEARCH customer data and when deidentified and anonymized is referred to as “Aggregate Data”. CHAOSSEARCH shall have the right to use Aggregate Data for research, marketing and other purpose reasonably required to develop, deliver and provide ongoing innovation to the CHAOSSEARCH Service.
8. Term; Termination; Suspension.
8.1 Term. The term of the Agreement will commence on the Subscription Start Date and will remain in effect for the Subscription Period unless earlier terminated in accordance with this Section 8. The Subscription Period automatically renews for successive one year terms unless either party notifies the other party of its desire not to renew the Subscription Period at least thirty (30) days prior to the end of the then current Subscription Period.
8.2 Termination. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 7.3, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the CHAOSSEARCH Service expires, terminates or requires us to change the way we provide the CHAOSSEARCH Service, or (C) in order to comply with the law or requests of governmental entities.
8.3 Suspension. We may suspend your or any End User’s right to access or use any portion or all of the CHAOSSEARCH Service immediately upon notice to you if we determine:
(a) your or an End User’s use of the CHAOSSEARCH Service (i) poses a security risk to the CHAOSSEARCH Service or any third party, (ii) could adversely impact our or our third party service providers’ systems or the CHAOSSEARCH Service, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;
(b) you are, or any End User is, in breach of the Agreement;
(c) you are in breach of your payment obligations under Section 6 and do not cure such breach within ten (10) business days of receipt of our written notice (which may be by email);
(d) Amazon Web Services terminates or suspends your AWS S3 account; or
(e) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
8.4 Effect of Termination. The termination or expiration of the Agreement shall not affect any obligations or liabilities of the parties arising prior to the date of termination. Upon termination or expiration of the Agreement: (i) all your rights under the Agreement immediately terminate and you shall cease all access and use of the CHAOSSEARCH SERVICE; (ii) you remain responsible for all fees and charges you have incurred through the date of termination or expiration; (iii) you will immediately return or, if instructed by us, destroy all CHAOSSEARCH Content in your possession; and (iv) Sections 5, 6, 7, 8.4, 9.2, 10, 11 and 12 will continue to apply in accordance with their terms.
9. Limited Warranty; Disclaimer.
9.1 Limited Warranty. CHAOSSEARCH represents and warrants that, during a Subscription Period, the CHAOSSEARCH Service will include the functionality set forth in the published specifications for the CHAOSSEARCH Service. As your sole and exclusive remedy for any breach of the foregoing limited warranty, CHAOSSEARCH will, in its sole discretion, either (i) use commercially reasonable efforts to remedy the nonconformity within a commercially reasonable period of time or (ii) terminate the Agreement and refund the prepaid fees for the unexpired remaining unused Subscription Period. The CHAOSSEARCH warranties set forth above shall not apply to any nonconformities resulting from you or your End Users’ acts or omissions or noncompliance with this Agreement or the documentation for the CHAOSSEARCH Service, resulting from Amazon Web Service or your AWS S3 environment or resulting from any other hardware, software, data, materials or other products or services not developed or provided by CHAOSSEARCH. The foregoing limited warranty will not apply during any free trial period.
9.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE CHAOSSEARCH SERVICE, CHAOSSEARCH CONTENT AND SUPPORT SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL REPRESENTATIONS AND WARRANTIES
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CHAOSSEARCH AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
CHAOSSEARCH MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SECURITY, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CHAOSSEARCH SERVICE, CHAOSSEARCH CONTENT, SUPPORT SERVICES OR ANY OTHER MATTER RELATED TO THIS AGREEMENT WHATSOEVER. CHAOSSEARCH AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE CHAOSSEARCH SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE CHAOSSEARCH SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ERRORS OR DEFECTS IN THE CHAOSSEARCH SERVICE WILL BE CORRECTED; OR (D) THE CHAOSSEARCH SERVICE OR THE SERVER(S) THAT HOST THE CHAOSSEARCH SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN ADDITION, YOU ACKNOWLEDGE THAT THE CHAOSSEARCH SERVICE INTEROPERATES WITH THIRD PARTY SERVICES AND DEPEND ON THE CONTINUING AVAILABILITY OF THOSE THIRD PARTY SERVICES AND THE CHAOSSEARCH SERVICE MAY BE IMPACTED, INTERRUPTED OR MAY CEASE IF ANY SUCH THIRD PARTY SERVICES CEASE TO MAKE THEIR APIS AVAILABLE ON REASONABLE TERMS OR EXPERIENCE ANY UNAVAILABILITY, OUTAGE, MALFUNCTIONS OR CHANGE IN THEIR FUNCTIONALITY. CHAOSSEARCH DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO THIRD PARTY SERVICES AND PRODUCTS THAT YOU USE.
THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER CHAOSSEARCH OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.1 Indemnification By CHAOSSEARCH. CHAOSSEARCH will defend (at CHAOSSEARCH’s expense) you from any third party claims, demands, suits or proceedings brought against you alleging that your use of the CHAOSSEARCH Service in accordance with its documentation and this Agreement infringes any copyright or trade secret right arising under United States law and CHAOSSEARCH shall pay all damages (including reasonable attorneys’ fees) that are finally awarded by a court of competent jurisdiction or agreed to by CHAOSSEARCH in settlement of such claims. If you are enjoined from using the CHAOSSEARCH Service or CHAOSSEARCH reasonably believes you will be enjoined, CHAOSSEARCH shall have the right, at its sole option, to obtain for you the right to continue use of the CHAOSSEARCH Service or to replace or modify the CHAOSSEARCH Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to CHAOSSEARCH, then CHAOSSEARCH may terminate your use of the CHAOSSEARCH Service and the Agreement and refund to you any prepaid fees for the unexpired remaining unused Subscription Term. Notwithstanding the foregoing, CHAOSSEARCH shall not be required to indemnify you with respect to any claim based upon or arising out of: (a) any use of the CHAOSSEARCH Service not in accordance with the the Agreement or the applicable documentation; (b) the combination, operation or use of the CHAOSSEARCH Service with other product, equipment, business method, software or data not developed by CHAOSSEARCH; (c) any modifications made by any person other than CHAOSSEARCH or its authorized agents or subcontractors; (d) CHAOSSEARCH’s compliance with any designs, specifications, or instructions provided by you or a third party on your ‘s behalf; or (e) any Your Content or any Third Party Services with which you use the CHAOSSEARCH Service. This Section 10.1 constitutes your sole and exclusive remedy and CHAOSSEARCH’s only liability in respect of claims of intellectual property infringement. Further, you acknowledge that this indemnification obligation will not apply, and will be enforceable by you, during any free trial period.
10.2 Indemnification By You. You will defend (at your expense) CHAOSSEARCH from any third party claims, demands, suits or proceedings brought against CHAOSSEARCH arising out of or related to (i) Your Content or your use of the CHAOSSEARCH Service with any Third Party Services, (ii) Your or Your End Users’ use of the CHAOSSEARCH Service not in accordance with the documentation for the CHAOSSEARCH Service or the Agreement or (iii) CHAOSSEARCH’s compliance with any designs, specifications, or instructions provided by you or a third party on your behalf. You shall pay all damages (including reasonable attorneys’ fees) that are finally awarded by a court of competent jurisdiction or agreed to by you in settlement of such claims.
10.3 Indemnification Process. The foregoing obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, provided, that any failure to promptly notify the indemnifying party shall not relive the indemnifying party of its obligations except to the extent it was unduly prejudiced; (b) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, provided that any settlement shall fully release the indemnified party from liability and shall not impose any obligations on the indemnified party without the indemnified party’s consent; and (c) cooperating and, at the indemnifying party’s written request and expense, assisting in such defense. The indemnifying party will not reimburse the indemnified party for any expenses incurred by the indemnified party without the prior written approval of the indemnifying party. The indemnified party will have the right to participate in the defense and settlement of a claim at the indemnified party’s expense.
11. Limitation of Liability.
11.1 DISCLAIMER OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, LOSS OF GOODWILL, LOSS OF OR INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA, OR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT OR THE CHAOSSEARCH SERVICE, CHAOSSEARCH CONTENT OR SUPPORT SERVICES, WHETHER ARISING AS UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORSEEABLE.
11.2 LIMIT ON CUMULATIVE LIABILTY. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF A PARTY FOR ALL CLAIMS ARISING UNDER AND DURING THE ENTIRE TERM OF THIS AGREEMENT AND FOR ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO CHAOSSEARCH FOR THE CHAOSSEARCH SERVICE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMIT. CHAOSSEARCH is not liable for any losses, damages, claims, demands, actions, costs and expenses (including reasonable attorneys’ fees and court costs) arising from or created by any of your or your End Users acts or omissions related to the access or use of the CHAOSSEARCH Service.
11.3 Exclusions. The limitations set forth in Sections 11.1 and 11.2 shall not apply to liability arising from a party’s gross negligence or willful misconduct, a party’s indemnification obligations under Section 10, a party’s violation or misappropriation of the other party’s intellectual property rights (including without limitation any breach of Section 1 or 2 by you or your End Users), or your or your End Users’ breach of the Acceptable Use Policy or failure to pay undisputed fees.
11.4 Savings Clause; Limitation on Actions. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 11 REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. To the maximum extent permitted by applicable law and except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of the Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
12. Other Provisions.
(a) Governing Law; Venue; Jury Trial Waiver. This Agreement, and all disputes arising out of or related thereto shall be governed by and construed under the laws of the Commonwealth of Massachusetts without reference to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The state and federal courts located in the Commonwealth of Massachusetts, shall have sole and exclusive jurisdiction over any disputes arising hereunder, and each party hereby irrevocably consents to the sole and exclusive personal jurisdiction of such courts. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts and irrevocably waives any right to a trial by jury.
(b) Assignment. You shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of CHAOSSEARCH. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
(c) Export Controls. You acknowledge that the CHAOSSEARCH website, CHAOSSEARCH Service and its underlying software, and CHAOSSEARCH Content may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the CHAOSSEARCH Service OR CHAOSSEARCH Content for, and will not permit the CHAOSSEARCH Service OR CHAOSSEARCH Content to be used for, any purposes prohibited by law.
(d) Force Majeure. CHAOSSEARCH will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder to the extent caused by a circumstance beyond its reasonable control, including, without limitation, failure of the internet, failures of third party service providers, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages and other acts not caused by CHAOSSEARCH.
(e) Entire Agreement. The Agreement is the entire agreement between the parties relating to the subject matter hereof and supersedes and replaces, all prior and contemporaneous proposals, agreements, and other communications between the parties, oral or written, regarding such subject matter. The terms on any purchase order or similar document submitted by you to CHAOSSEARCH will have no effect and are hereby rejected. You agree that You are not entering into the Agreement or subscribing to the CHAOSSEARCH Service contingent on the provision of any future functionality relating in any way to the CHAOSSEARCH Service and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in the Agreement. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breaches hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision.
(f) Notices. Any notice given to a party under or in connection with this Agreement shall be in writing in English language and shall be delivered by hand, by pre-paid first-class U.S. mail, electronic mail, or a next working day delivery service if to CHAOSSEARCH, to CHAOSSEARCH at 205 Portland Street, Boston, MA 02110 Attn: Legal Department or if to you, to your principal place of business as designated in your Account Information. Notices shall be deemed given (i) upon personal delivery to the party to be notified; (ii) when received by electronic or confirmed facsimile transmission if received during normal business hours of the recipient on a business day, or if not, then on the next business day with a copy sent via any other method of notice; five (5) days following deposit into the United States mail (certified mail, return receipt requested); or (iv) one (1) business day after deposit with an internationally recognized overnight courier, with written verification of receipt. In addition, CHAOSSEARCH may provide you with notices (i) through the CHAOSSEARCH Service, which notices will take effect upon your next login and/or (ii) by email to your email address provided by you in your Account Information, which notices will take effect two days after being sent.
(g) No Sensitive Personal Information. Notwithstanding any provision to the contrary in the Agreement, you acknowledge and agree that use of the CHAOSSEARCH Service to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the CHAOSSEARCH SERVICE and therefore you shall be solely responsible for any such use of the CHAOSSEARCH Service by you or your End Users, and CHAOSSEARCH shall bear no responsibility, risk or liability for same. “Sensitive Personal Information” shall be defined as (a) social security numbers; (b) passport numbers or other government issued id numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body; (c) health or medical information (other than food allergies or medical contact information); (d) financial account information; must be protected in accordance with specific or heightened security requirements imposed by applicable laws, rules, regulations or industry standards; (e) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure; (f) reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, sex orientation or activities, or genetic or biometric data; or (g) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, IP address, email address, and phone number). Further, by using the CHAOSSEARCH Service, you confirm that you will not input, and will not solicit End Users to input, Sensitive Personal Information or otherwise use the CHAOSSEARCH Service in a manner that could give rise to obligations under applicable laws, rules or regulations relating to Sensitive Personal Information.
(h) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(i) Publicity. You agree that we may list you as a customer in our on and off line customer lists.