Terms of Service

Permitted Use. Subject to the terms and conditions of this Agreement and the applicable Order, Warpstream will make the Platform Offering available to Customer during the applicable Subscription Term. Customer may only use the Platform Offering for its internal business purposes. To the extent that an applicable Order specifies that On-Premise Agents will be provided or made available to you as part of your Platform Offering, Warpstream grants you, subject to the terms and conditions of this Agreement and the applicable Order, a royalty-free, worldwide, non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 13.2) license, during the applicable Subscription Term, to reproduce, install, and use licensed copies of the On-Premise Agents provided or otherwise made available by WarpStream to you under this Agreement solely for purposes of accessing or using the Platform.

Availability. During the Subscription Term, Warpstream will comply with the SLA.

Accounts. To access the Platform Offering, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide Warpstream with information (such name, email address, or other contact information). Customer agrees that the information it provides to Warpstream is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by Warpstream (“Log-in Credentials”), may access and use the Platform Offering. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials. Customer will promptly notify Warpstream if it becomes aware of any compromise of any Log-in Credentials. Warpstream may Process Log-in Credentials in connection with Warpstream’s provision of the Platform Offering or for Warpstream’s internal business purposes. Customer represents and warrants to Warpstream that: (a) it has not previously been suspended or removed from the Platform Offering; and (b) its registration and use of the Platform Offering is in compliance with all Laws.

Restrictions. Customer will not (and will not permit its Users or anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Platform Offering to a third party (other than Users); (b) use the Platform Offering on behalf of, or to provide any product or service to, third parties; (c) use the Platform Offering to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Platform Offering, except to the extent expressly permitted by Law (and then only with prior notice to Warpstream); (e) modify or create derivative works of the Platform Offering or copy any element of the Platform Offering; (f) remove or obscure any proprietary notices in the Platform Offering; (g) publish benchmarks or performance information about the Platform Offering; (h) interfere with the operation of the Platform Offering, circumvent any access restrictions, or conduct any security or vulnerability test of the Platform Offering; (i) transmit any viruses or other harmful materials to the Platform Offering; (j) take any action that risks harm to others or to the security, availability, or integrity of the Platform Offering; (k) access or use the Platform Offering in a manner that violates any Law; (l) use the Platform Offering with Prohibited Data or for High Risk Activities; (m) implement the On-Premise Agents in any software, infrastructure, or other technology or to support any interfaces between computing devices or computing functions (in each case, other than as necessary to access or use the Platform); (n) display, expose or disclose the Platform Offering to any third party; or (o) use the Platform Offering to create or develop any command set, application or other application programming interface or software that can be used with any service or product other than the Platform Offering. Customer acknowledges that the Platform Offering is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Warpstream is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Warpstream has no liability for Prohibited Data or use of the Platform Offering for High Risk Activities.

Support. Please contact us at support@warpstream.com if you experience any issue with respect to the Platform Offering. We are under no obligation to respond to or to resolve all or any issue reported to us or to provide any updates, upgrades, or other technical or maintenance support with respect to the Platform Offering.

Use of Customer Data. Customer grants Warpstream the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Platform Offering; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.

Security. WarpStream will implement reasonable information security measures designed to protect Customer Data from unauthorized access, use, or disclosure. Customer hereby acknowledges and agrees that WarpStream does not have access to any data, content, or other information stored, residing on, or otherwise contained in any of Customer’s cloud service accounts, clusters, environments or other cloud resources used in connection with On-Premise Agents (“Cloud Data”).

Privacy Policy. To the extent Personal Data as defined in Warpstream’s Privacy Policy at www.warpstream.com/privacy-policy is uploaded, transmitted, submitted, provided, or Processed in connection with Customer’s use of the Platform Offering, Warpstream will comply with the Privacy Policy.

Usage Data; Aggregated Data. Warpstream may Process Usage Data and Aggregated Data for internal business purposes to: (a) track use of Platform Offering for billing purposes; (b) provide support for Platform Offering; (c) monitor the performance and stability of the Platform Offering; (d) prevent or address technical issues with the Platform Offering; (e) to improve Platform Offering, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.

Customer Obligations. Customer is responsible for its Customer Data and Cloud Data, including its content and accuracy, and will comply with Laws when using the Platform Offering.

Suspension. Warpstream may immediately suspend Customer’s and its Users’ access to the Platform Offering if: (a) Customer breaches Section 3.4 or Section 3.10; (b) Customer’s Account is 30 days or more overdue; (c) changes to Laws or new Laws require that Warpstream suspend the Platform Offering or otherwise may impose additional liability on us; or (d) Customer or its Users actions risk harm to any of Warpstream’s other customers or the security, availability, or integrity of the Platform Offering. Where practicable, Warpstream will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, Warpstream will use reasonable efforts to restore your access to the Platform Offering.

Modifications to the Platform Offering. Warpstream may modify or discontinue all or any part of the Platform Offering at any time (including by limiting or discontinuing certain features or functionality of the Platform Offering), temporarily or permanently, without notifying Customer (except that Warpstream will use commercially reasonable efforts provide Customer with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Platform Offering). Warpstream will have no liability for any change or modification to the Platform Offering or any suspension or termination of access to or use of the Platform Offering as a result thereof. Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis with respect to any Order entered into or renewed after Warpstream’s implementation thereof.

Customer Systems. Customer will provide and maintain any hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Platform Offering (including those described in the Documentation).

Third-Party Platforms. Use of Third-Party Platforms are subject to Customer’s agreements with the relevant provider and not this Agreement. Warpstream does not control and have no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Platform Offering or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Platform Offering, Customer authorizes Warpstream to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

Renewal. Each Subscription Term will automatically renew for successive terms equal in length to the Subscription Term. Customer may cancel the Platform Offering by following the cancellation procedures described on the Platform or by emailing Warpstream at support@warpstream.com. YOUR CANCELLATION MUST BE RECEIVED AT LEAST THIRTY (30) DAYS BEFORE THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION TERM IN ORDER TO AVOID BEING CHARGED FOR THE NEXT SUBSCRIPTION PERIOD.

Fees. Fees for the Platform Offering are described in the Order. All fees for the Platform Offering (“Fees”) will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced or charged as described in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less and Customer will also be responsible for Fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection Fees. All Fees and other expenses are non-refundable. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Warpstream’s income tax (“Taxes”). Fees are exclusive of all Taxes.

Authorization. You authorize Warpstream to charge all sums for the Orders that you make and any level of Platform Offering you select as described in this Agreement or published by Warpstream, including all applicable Taxes, to the payment method specified in your Account. If you pay any Fees with a credit card, then Warpstream may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You agree that Warpstream may seek pre-authorization of the credit card account Customer provide to Warpstream for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase. If your payment method is no longer valid at the time a renewal Fee is due, then Warpstream reserves the right to delete your Account and any information or Customer Data associated with your Account without any liability to you.

Pricing. Warpstream reserves the right to determine pricing for the Platform Offering. We will use reasonable efforts to keep pricing information with respect to the Platform Offering that is published on Warpstream’s pricing page available at www.warpstream.com/pricing up to date, and Warpstream encourages Customers to check it regularly for current pricing information. Unless Warpstream and Customer otherwise agree in an Order executed by the parties, Warpstream may change the Fees for the Platform Offering (including any feature or functionality of the Platform Offering) and Warpstream will notify Customer of any such changes before they apply. Warpstream may make promotional offers with different features and different pricing to any of Warpstream’s other customers. These promotional offers, unless made to Customer, will not apply to your Order or this Agreement.

Renewal Fees. Fees for renewal Subscription Terms are at Warpstream’s then-current Fees at the time of such renewal regardless of any discounted pricing in a prior Order or promotional offers previously extended to Customer.

Affiliate Orders. Customer may allow any of its Affiliates to enter into its own Order(s) with Warpstream under this Agreement; provided that Warpstream may refuse to enter into any such Order(s) with any such Affiliate in its sole discretion. Such Affiliate will be deemed to be the “Customer” only for purposes of such Order(s), but Customer will at all times be solely liable for such Affiliate’s and its Users’ access to and use of the Platform Offering and their compliance with the terms and conditions set forth herein (including any fees due under any such Order(s)).

Mutual. Each party represents and warrants to the other party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of its obligations under this Agreement; and (c) it will comply with all Laws in its performance of its obligations or exercise of rights under this Agreement.

Customer. Customer represents and warrants to Warpstream that it has provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority to fully comply with its obligations under this Agreement without violating Laws, infringing, misappropriating, or otherwise diluting any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights), or breaching any terms or conditions in any agreement or privacy policies with a third party.

Disclaimer. THE PLATFORM OFFERING IS PROVIDED “AS IS”. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, WARPSTREAM, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER’S USE OF THE PLATFORM OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WARPSTREAM WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. WARPSTREAM IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE WARPSTREAM’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE PERFORMANCE TO THE SHORTEST LEGALLY PERMITTED PERIOD.

Term. This Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms.

Termination. Either party may terminate this Agreement (including any or all Orders) if the other party fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice. If Customer violates any provision of this Agreement, then your authorization to access the Platform Offering and this Agreement automatically terminate. In addition, Warpstream may, in its sole discretion, terminate this Agreement or Customer’s Account on the Platform Offering, or suspend or terminate Customer’s access to the Platform Offering, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination. Customer may terminate your Account and this Agreement at any time by following the cancellation procedures described on the Platform or by emailing Warpstream at support@warpstream.com.

Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and Warpstream’s obligations to provide the Platform Offering will cease and Customer will uninstall and destroy all copies of the On-Premises Agents in its possession or control (if any). During a Subscription Term and for the 30 day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Platform Offering, including from Third-Party Platforms from the applicable Platform Offering, using the export features described in the applicable Documentation. After that 30 day period, Warpstream will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 10, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.

Survival. All rights to payment and the following Sections (and all defined terms needed to interpret those Sections) will survive expiration or termination of this Agreement: Section 2, Section 3.4, Section 3.9, Section 3.14, Section 4, Section 5, Section 6.3, Section 6.4, Section 7, Section 8, Section 9, Section 10, Section 11, Section 13, and Section 14. Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

By Customer. Customer will defend or at its option settle any claims, demands, or actions brought by a third party (“Claims”) against Warpstream, its Affiliates, and their respective directors, officers, employers, agents, successors and assigns (collectively “Warpstream Parties”) arising out of or in connection with: (a) the Customer Data; (b) its or its Users’ violations of Law, fraud, gross negligence, or willful misconduct; or (c) its or its Users’ breach or non-fulfillment of any representation, warranty, or covenant in this Agreement. Customer will pay, on the Warpstream Parties’ behalf, all damages awarded in a final judgment or settlement of such Claims (including reasonable attorney’s fees, interest, and penalties to the extent included therein).

By Warpstream. Warpstream will defend or at its option settle any Claims against Customer, its Affiliates, and their respective directors, officers, employers, agents, successors, and assigns (collectively “Customer Parties” and, together with the Warpstream Parties, the “Indemnified Parties”) alleging that the authorized use of the Platform Offering infringes any U.S. patent, copyright, or trade secret right of a third party. Warpstream will pay, on the Customer Parties’ behalf, all damages awarded in a final judgment or settlement of such Claims (including reasonable attorney’s fees, interest, and penalties to the extent included therein). Notwithstanding the foregoing, Warpstream will have no obligation under this Section for Claims arising from: (a) combination of the Platform Offering with other software, hardware, products, or technology not provided by Warpstream; (b) any modification of the Platform Offering, in whole or in part, by anyone other than Warpstream; (c) the unauthorized use of the Platform Offering; or (d) use by Customer or its Users of any specified release of the Platform Offering after Warpstream notifies Customer that continued use may subject Customer to a Claim under this Section, provided Warpstream provides Customer with a replacement release. If any portion of the Platform Offering becomes, or in Warpstream’s reasonable opinion is likely to become, subject to a Claim under this Section, then Warpstream may at its sole option and expense: (a) procure for Customer the right to continue using the Platform Offering; (b) replace the Platform Offering with a non-infringing equivalent; (c) modify the Platform Offering to make it non-infringing; or (d) in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and the licenses granted herein. THIS SECTION 9.2 STATES THE ENTIRE LIABILITY AND OBLIGATION OF WARPSTREAM, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM OFFERING.

Procedures. Each Claim subject to indemnification under this Section is subject to the following. The applicable Indemnified Party will provide the indemnifying Party with: (a) reasonable written notice of the Claim (provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay); (b) the exclusive right to control and direct the investigation, defense and settlement of the Claim (provided that no settlement admitting liability on the part of the applicable Indemnified Party may be made without its express written consent); and (c) reasonable assistance and cooperation at the indemnifying Party’s sole cost and expense. The Indemnified Party may participate in a Claim with its own counsel at its own expense.

Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Warpstream’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Platform Offering.

Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Warpstream is the Recipient, Warpstream may retain the Customer’s Confidential Information to the extent required to continue to provide the Platform Offerings. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 10 and they are bound to confidentiality obligations no less protective than this Section 10.

Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or referencing Confidential Information.

Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 10.

Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

Customer Data. Customer Data is not subject to the confidentiality obligations under this Section 10, and Warpstream’s obligations with respect to the security thereof are governed by Section 3.7 only.

General Provisions. This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and Warpstream regarding your use of the Platform Offering. The failure to require performance of any provision will not affect Warpstream’s right to require performance at any other time after that, nor will a waiver by Warpstream of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Assignment. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without Warpstream’s prior written consent. Warpstream may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. Any assignment in violation of this Section will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

Governing Law. This Agreement is governed by the laws of the State of Illinois and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Cook County, Illinois and both parties submit to the personal jurisdiction of those courts.

Additional Terms. Customer’s use of the Platform Offering is subject to all additional terms, policies, rules, or guidelines applicable to the Platform Offering or certain features of the Platform Offering that Warpstream may post on or link to from the Platform Offering (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.

Consent to Electronic Communications. By using the Platform Offering, Customer consents to receiving certain electronic communications from Warpstream as further described in Warpstream’s Privacy Policy. Please read Warpstream’s Privacy Policy to learn more about Warpstream electronic communications practices. Customer agree that any notices, agreements, disclosures, or other communications that Warpstream sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing. You agree that WarpStream and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Platform Offering, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM WARPSTREAM, YOU CAN EMAIL support@warpstream.com OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM WARPSTREAM, YOU CAN EMAIL support@warpstream.com OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL CALLS AND MESSAGES MAY IMPACT YOUR USE OF THE PLATFORM OFFERING. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive calls and texts is not a condition of any purchase on or use of the Platform Offering. We may also send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

Contact Information. The Platform Offering is offered by Warpstream Labs, Inc., located at 2045 W Grand Ave., Suite B, Chicago, Illinois 60612. Customer may contact Warpstream by sending correspondence to that address or by emailing Warpstream at support@warpstream.com.

Notice to California Residents. If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Platform Offerings of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Platform Offering or to receive further information regarding use of the Platform Offering.

Reseller Orders. This Section applies to any access to or use of the Service purchased by Customer through a Reseller.