WARPSTREAM LABS, INC. TERMS OF SERVICE LAST UPDATED: FEBRURARY 2, 2024
This Terms of Service (“Agreement”) is a legally binding contract between you and Warpstream Labs, Inc. (“Warpstream,” “us,” “we,” or “our”) regarding your use of the Platform Offering (as defined in Section 2). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement, by executing an ordering document provided to you by us, placing an Order using online functionality Warpstream makes available like clicking a box, creating an Account (as defined in Section 3.2), or otherwise affirmatively accepting the Agreement through another means Warpstream offers you. If the Platform Offering is being used on behalf of a company or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are not eligible, or do not agree to the terms and conditions of this Agreement, then you do not have our permission to use the Platform Offering. Your use of and our provision of the Platform Offering to you, constitutes an agreement by Warpstream and by you to be bound by this Agreement.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF WARPSTREAM AT THE PHONE NUMBER YOU PROVIDE TO WARPSTREAM. THESE TEXTS/CALLS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE PLATFORM OFFERING. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
If Customer purchases the Platform Offering from an authorized partner or reseller of Warpstream (“Reseller”), Customer’s use of the Platform Offering will be governed by this Agreement, subject to Section 13.8 below.
Defined Terms. Certain capitalized terms used in this Agreement are defined in Section 14 and others are defined contextually in this Agreement.
Overview.WarpStream provides a proprietary, software-as-a-service platform (“Platform”) and related software agents in binary form (“Agents” and, together, with the Platform, the “Platform Offering”) that allow you to analyze and manage real-time data streams. Agents may be hosted on Warpstream’s environment (“Hosted Agents”) or on your own environment (“On-Premise Agents”).
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 email@example.com 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”).
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 firstname.lastname@example.org. 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 and Termination.
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 email@example.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.
Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data. Except for Customer’s use rights in this Agreement, Warpstream and its licensors retain all intellectual property rights and other rights in the Platform Offering, Documentation, Usage Data, Aggregated Data, and Warpstream’s technology, templates, formats, and dashboards, including any modifications or improvements to these items made by us. If Customer provides Warpstream with feedback or suggestions regarding the Platform Offering or its other offerings, Warpstream may use the feedback or suggestions without restriction or obligation.
Limitations of Liability. Except for (a) Customer’s breach of Sections 3.1 or Section 3.4, or (b) a party’s breach of Section 10 or its gross negligence, willful misconduct, fraud, or violations of Laws (collectively, “Excluded Liabilities”), neither Warpstream’s, Customer’s or their respective suppliers or licensors will have liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance. Except for Excluded Liabilities or Customer’s liabilities arising out of Section 9, neither Warpstream’s, Customer’s or their respective suppliers or licensors liability arising out of or related to this Agreement will exceed in aggregate the amounts paid or payable by Customer to Warpstream pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement. The waivers and limitations in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
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.
Trials. If Customer or its Users receive access to or use of Platform Offerings or features thereof on a free or trial basis or as an alpha, beta, or early access offering (collectively, “Trials”), such access to or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Warpstream (not to exceed thirty 30 days unless otherwise agreed upon by the parties in writing). Trials will be considered part of the Platform Offering and, subject to the remainder of this Section, all provisions of this Agreement relating to the Platform Offering will apply to Trials. Trials are optional and either party may terminate Trials at any time for any reason. Trials may be inoperable, incomplete, or include features that Warpstream may never release, and their features and performance information are deemed to be Warpstream’s Confidential Information. Warpstream may suspend Customer’s and its Users’ access to the Trials at any time. Customer’s and its Users’ use of Trials is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WARPSTREAM PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND OUR LIABILITY FOR TRIALS WILL NOT EXCEED US $50.00.
Modifications. Warpstream may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order unless Warpstream indicates an earlier effective date. If Warpstream requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Warpstream, in which case Warpstream will provide Customer a refund of any pre-paid Fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify Warpstream of its objections within 30 days after Warpstream’s notice of the modified Agreement . Once the modified Agreement takes effect Customer’s continued use of the Platform Offering constitutes its acceptance of the modifications. Warpstream may require Customer to click to accept the modified Agreement.
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.
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 firstname.lastname@example.org.
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.
(a) Commercial Terms. Instead of paying Warpstream, Customer will pay applicable amounts to the Reseller as agreed upon between Customer and the Reseller. Customer’s order details (e.g., scope of use, Subscription Term, and fees) will be as stated in the Order placed by Reseller with Warpstream on Customer’s behalf. The Reseller is responsible for the accuracy of such Order. Warpstream may suspend or terminate Customer’s rights to access and use the Platform Offering if it does not receive the corresponding payment from the Reseller. If Customer is entitled to a refund under this Agreement, Warpstream will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise specified.
(b) Relationship. This Agreement is directly between Warpstream and Customer and governs all use of the Platform Offering by Customer and its Users. Resellers are not authorized to modify this Agreement or make any promises, representations, warranties, or commitments on Warpstream’s behalf, and Warpstream is not bound by any obligations to Customer other than as set forth in this Agreement. Warpstream is not party to (or responsible under) any separate agreement between Customer and Reseller and is not responsible for the Reseller’s acts, omissions, products, or services. The amount paid or payable by the Reseller to Warpstream for Customer’s use of the applicable Platform Offering under this Agreement will be deemed the amount paid or payable by Customer to Warpstream under this Agreement for purposes of Section 8.
“Affiliate” means an entity which: (a) is owned or Controlled by, (b) owns or Controls, or (c) is under common Control, in each case, with a party; where “Control” means having more than fifty percent (50%) of the controlled entity’s shares or ownership interests representing the right to make decisions for such controlled entity.
“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
“Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Platform Offering, including from Third-Party Platforms; and (b) is collected, accessed, used, disclosed, transferred, transmitted, stored, hosted, or otherwise processed by Warpstream to provide the Platform Offering to Customer. Customer Data excludes Cloud Data.
“Documentation” means the then-current version of Warpstream’s usage guidelines and standard technical documentation for the Platform Offering that Warpstream provides or makes available to its customers.
“High Risk Activities” means activities where use or failure of the Platform Offering could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Customer Data and Personal Data.
“Order” means an order that is executed by the parties or a process Customer complete through the online order flow Warpstream provide each of which references this Agreement.
“Personal Data” means means any information or data that constitutes “personal data,” personal information,” “personally identifiable information,” “nonpublic personal information,” or any similar concept under Laws, where such information is contained within Customer Data and is Processed by Warpstream in connection with this Agreement.
“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
“SLA” means Warpstream’s Service Level Agreement available at [LINK].
“Subscription Term” means the period during which Customer’s subscription to access and use the Platform Offering is in effect, as identified in the applicable Order.
“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Warpstream that Customer elects to integrate or enable for use with the Platform Offering.
“Usage Data” means information generated from the use of the Platform Offering, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Platform Offering, but excluding any identifiable Customer Data.
“User” means any employee or contractor of Customer that Customer allows to use the Platform Offering on Customer’s behalf.