GRAVITATIONAL TERMS OF SERVICE

Last Updated: January 26, 2017

Introduction

These Terms of Service (the “Terms”) govern your access to and use of the services offered by Gravitational, Inc. (“Gravitational”, “we” or “us”) at and through the website Gravitational.com, Gravitational.io, Teleconsole.com, Telekube.com and other web properties owned by Gravitational (such services, software and the website are collectively referred to as the “Services”). PLEASE READ THESE TERMS CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND GRAVITATIONAL WHICH GOVERNS YOUR USE OF THE SERVICES. YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS. We may make changes to the Terms or to the Services from time to time without prior notice to you. When such changes to the Terms are made, we will make the updated Terms available on our website.  You understand and agree that your use of the Services after the date on which the Terms have changed, constitutes acceptance of the updated Terms.

Your Account and Use of the Services

In order to access and use the Services, you may have to create an account with us and, if so, you must provide accurate and complete registration information. You are responsible for using the Services in a private and secure manner. You are responsible for maintaining the confidentiality of your account and of the login and passwords for all users whom you have authorized to access your account (“Authorized Users”). We are not liable for any damage or loss due to unauthorized account access resulting from your actions or actions of your Authorized Users. If you become aware of any unauthorized use of your password or your account, or if any passwords are lost, stolen or disclosed to an unauthorized third party, or your account may have otherwise been compromised, you agree to notify us immediately at [email protected] You may create your own account, or one may be assigned or provided to you by someone else, for example, your employer, an administrator or another user who has invited you to access and use the Services. Such employer, administrator or other user may be able to access and view your use of the Services as well as restrict or terminate your access.

You may not use the Services for any illegal activity or to violate laws in your jurisdiction. You may not exploit the Services to access confidential information of any other person. The Services are not intended for children under 13, and by using the Services, you are representing that you are at least 18.

We reserve the right, in our sole and absolute discretion, to modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, for you or for all our users at any time without prior notice. You agree that we will not be liable to you or any third party for any such modifications, suspensions or discountenance of the Services, or any part thereof.

Evaluation Period

We may offer a free trial of certain Services (a “Product”) for a limited period of time that is not more than forty-five (45) days, unless extended by Gravitational in writing (the “Evaluation Period”). At the end of any Evaluation Period that is offered, you will only be able to continue using the Services by paying for a license subscription plan (a “Subscription Plan” and such period the “License Period”) pursuant to a term sheet provided by Gravitational and signed by an authorized representative of your company (a “Sales Order”). If you choose to sign up for a Subscription Plan at or before the end of any such Evaluation Period, we will preserve Your Data (as defined below) in your account. If you do not elect not to purchase a Subscription Plan at or before the end of the any such Evaluation Period, we reserve the right to delete Your Data and your account after the expiration of any such Evaluation Period. We reserve the right to charge for use of the Services after the Evaluation Period, and we also reserve the right to limit the usage of the Services or stop the Services without advance notice.

During the Evaluation Period, your right to use such Product is only for a specified and limited period of time, and you agree that the Product is meant for evaluation purposes only. During the Evaluation Period, the Product should not be used in a commercial operating environment or with important data. Before using the Product, you should back up all of Your Data and regularly back up data while using the Product.

General License

For the term of your Evaluation Period and/or License Period, as applicable, and subject to the terms and conditions of these Terms and applicable Sales Order, Gravitational grants you a non-exclusive, non-transferable, limited license (without the right to sublicense) to (i) install the Product on your internal or your third party service providers’ servers, provided that only you shall have access to the Products on such third party service providers’ servers; (ii) use the Products and associated documentation for internal evaluation purposes as necessary to determine the feasibility of using the Products during the Evaluation Period; and (iii) use the Products for commercial use only after the Evaluation Period has ended and you have entered into a valid Sales Order for a Subscription Plan and for a specific License Period.

Payment Terms

By signing up to a Subscription Plan, you expressly agree that we are authorized to charge you for: (i) the fees for the applicable Subscription Plan billed on a monthly basis in advance, (ii) any other fees for Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services, to the credit card or other payment method you provide, and to reimburse us for all collection costs and interest for any overdue amounts. When you purchase a Subscription Plan (each such purchase, a “Transaction”), you will be asked to supply additional information relevant to such Transaction, including, without limitation, your credit-card number, the expiration date of your credit card, and your address(es) for billing (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information, whether you provide it in the course of a Transaction or in connection with your account. You must provide current, complete and accurate information for your Payment Information. You must promptly update all information to keep your Payment Information current, complete and accurate, and you must promptly notify us if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security. If the payment card you provide expires or you do not maintain accurate and up to date payment card information, we reserve the right to cancel the Services and your account without further notice and delete Your Data.

All fees are due as per the payment terms specified on the Sales Order and shall be deemed non-refundable upon payment. You are responsible for paying a monthly finance charge on late payments at the rate of 1.5% per month or the highest amount permitted by law, whichever is lower, until paid in full. You will reimburse any costs or expenses (including, but not limited to, reasonable attorney fees) incurred by Gravitational to collect any amount that is not paid when due. Amounts due from you under these terms or the applicable Sales Order may not be withheld or offset by you against amounts due to you for any reason. All fees specifically exclude (and you are responsible for) any and all applicable sales, use and other taxes, other than taxes based on Gravitational’s income. All terms herein, including without limitation, any pricing terms, are confidential, and you agree not to disclose them to any third party. All fees are payable in the currency of the United States of America. We reserve the right to change our prices at any time, provided that we will give you ninety (90) days’ notice prior to the start of the upcoming next renewal period for any changes to the pricing of your existing Subscription Plan, and such notice may be provided to you by e-mail.

Payment processing may be handled by third-party payment processors (each a “Payment Processor”). You may be required to register with the Payment Processor, agree to terms of service of the Payment Processor and go through a vetting process at the request of the Payment Processor to set up your account with the Payment Processor. Please note that Gravitational is not a party to such terms of service or any payment agreement between you and the Payment Processor and that Gravitational has no obligations or liability to you under such agreements.

During your use of the Services and for one (1) year thereafter, Gravitational or its designated agent may inspect your facilities and records to verify your compliance with these Terms and any applicable Sales Order. Any such inspection will take place only during your normal business hours and upon not less than ten (10) business days’ prior written notice from Gravitational. You shall reasonably cooperate with such audit and shall make such personnel, facilities and records available as Gravitational may reasonably request. Gravitational will give you written notice of any non-compliance, including any use of the Software or services beyond that authorized under these Terms and applicable Sales Order and without limiting Gravitational’s remedies arising from such unauthorized use, you shall promptly: (i) cease such unauthorized use and (ii) pay Gravitational any additional fees due to the extent your use of the Software has exceeded the scope purchased by you. If any underpayment exceeds 5% then you will also pay the costs reasonably incurred by Gravitational in connection with the inspection.

Privacy and Restrictions on Use

Your access to and use of the Services are subject to the privacy policy available at http://gravitational.com/privacy/ (the “Privacy Policy”), which is incorporated into these Terms and considered a part of these Terms. You agree that you have reviewed the Privacy Policy and understand the ways in which we collect, use and share information about and relating to you, your employer and others when you use the Services (your “Personal Information”). We may store, process and transmit your Personal Information outside of the country in which you reside, or are located, at the time you access and use the Services as described in more detail in the Privacy Policy, and therefore, our collection and use of your Personal Information will be subject to the laws of such other countries. THESE LAWS, INCLUDING WHAT IS DETERMINED TO BE “PERSONAL DATA AND/OR INFORMATION,” ARE DIFFERENT AND MAY BE LESS PROTECTIVE THAN THOSE APPLICABLE TO YOU IN YOUR COUNTRY OF RESIDENCE. BY USING THE SERVICES, YOU ACKNOWLEDGE, AGREE AND CONSENT TO (1) THE TRANSFER TO AND PROCESSING OF PERSONAL INFORMATION ON SERVERS LOCATED OUTSIDE OF THE COUNTRY WHERE YOU RESIDE, (2) GRAVITATIONAL’S COLLECTION, USE AND SHARING OF YOUR PERSONAL INFORMATION AS DESCRIBED IN THE PRIVACY POLICY AND IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES THAT MAY BE DIFFERENT AND MAY BE LESS PROTECTIVE THAN THOSE IN YOUR COUNTRY AND (3) THAT YOU ARE TAKING A RISK BY USING THE SITE AND SERVICES.

You agree that you are responsible for your own conduct while accessing or using the Services and for any consequences thereof. You agree to use the Services only for purposes that are in accordance with these Terms and any applicable laws or regulations. By way of example, and not as a limitation, you may not, and may not allow any third party to:

Proprietary Rights

You acknowledge and agree that we own all legal right, title and interest in and to the Services, including but not limited to, visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, data, and all other elements of the Services, (whether those rights happen to be registered or not, and wherever in the world those rights may exist).  Gravitational and its licensors retain ownership of all copies of the Service, even after installation on your computers, mobile handsets, tablets, and/or other relevant devices. These Terms do not convey to you any rights of ownership in or related to the Services or any intellectual property rights. In connection with your use of the Services, you or your employer may submit, or cause to be submitted, and store within the Services electronic and machine data and other materials or information about you, your employer, your products and services, your customers, sales, accounting or financial results and records, and other business data (collectively, the “Service Data”). You or your employer retain all legal right, title and interest you or your employer already hold in and to the Service Data and you and your employer are responsible for protecting those rights in your discretion. You acknowledge and agree that the Services may include functionality that reports the usage of the Services and gives Gravitational the ability to monitor certain usage of the Services which is fundamental to the business of Gravitational. By uploading or submitting your Service Data through the Services you give Gravitational a worldwide, fully paid-up, royalty-free, and non-exclusive license to use, reproduce, adapt, modify, host, maintain, compile, translate, share and distribute such Service Data for the purpose of (i) enabling us to provide you with the Services and (ii) using aggregate, anonymized usage and performance statistics to measure the performance of our servers and features. You represent and warrant that: (a) you either own your Service Data or have the necessary licenses, rights, consents, and permissions to grant the rights and licenses granted in these Terms, and (b) our exercise of the license rights herein does not and will not require obtaining a license from or paying any fee or royalties to any third party.

You may choose to or we may invite you to submit comments, bug reports, feedback or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You hereby grant us a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Ideas for any purpose.

Open Source Software

The Services may contain open source software components (“Open Source Components”). Such Open Source Components are not licensed under these Terms, but are instead licensed under the terms of the applicable open source license. Your use of each Open Source Component is subject to the terms of each applicable license which are available to you on request from Gravitational and, notwithstanding any provision herein to the contrary, you are solely responsible for its compliance with such licenses.

User Content

The Services may allow you and other users to submit, post, transmit, analyze and share content, which may include, without limitation, the Your Data, data files, text, documents, and user comments and feedback (collectively, “User Content”). You retain all your ownership rights in your User Content. By uploading or submitting your User Content through the Services you give us a worldwide, fully paid-up, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such User Content for the purpose of (i) enabling us to provide you and other users with the Services and (ii) using aggregate, anonymized usage and performance statistics to measure the performance of our servers and features. You represent and warrant that: (a) you either own your User Content or have the necessary licenses, rights, consents, and permissions to grant the rights and licenses granted in these Terms, and (b) our exercise of the license rights herein does not and will not require obtaining a license from or paying any fee or royalties to any third party. We may display or make User Content available to users of the Services but do not control the content thereof. We do not guarantee any accuracy or confidentiality with respect to any information contained in any User Content, and strongly recommend that you think carefully about what you transmit, submit or post to or through the Services. All User Content is the sole responsibility of the person from whom such User Content originated and you are entirely responsible for all your User Content and for any actions taken by us or other users as a result of such User Content. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect to any User Content. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

We reserve the right to refuse to allow any User Content on the Services, or to edit or remove any User Content at any time without prior notice if we reasonably believe that you or your User Content are in violation of these Terms or otherwise disrupt or threaten the operation of the Services. We comply with the Digital Millennium Copyright Act and will remove User Content from the Services upon receipt of a compliant takedown notice (see the Section titled “Copyright Policy” below). You agree to immediately take down any User Content that violates the Terms, including in response to a request from us. We additionally reserve the right to directly take down such User Content or to suspend or terminate your use of the Services in our sole discretion.

Termination of the Services

Upon the expiration of the Evaluation Period and/or License Period, if any, you must cease use of the applicable Product unless you and Gravitational have entered into a Sales Order for your use of such Product for the License Period specified on such Sales Order.

A Sales Order may be terminated by either party immediately upon written notice to the other party if the other party commits a breach or default in the performance of this Agreement and (if capable of cure) fails to remedy such breach or default within thirty (30) days after written notice thereof from the other party. A Sales Order may be terminated by either party immediately upon written notice to the other party if the other party files a petition of any type as to its bankruptcy, is declared bankrupt, become insolvent, makes an assignment for the benefit of creditors, goes into liquidation or receivership, or otherwise loses legal control of its business or is in such adverse financial condition as to endanger its ability to perform its obligations under this Agreement. In the event of any termination, (a) you will remain liable for any amounts due under these Terms and/or applicable Sales Order (adjusted on a pro rata basis, if applicable).

You agree that we, in our sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Services may be without prior notice, and you agree that we will not be liable to you or any third party for such termination. 

After termination, you will no longer have access to Your Data or any other information through the Services, and we may delete all such information. We accept no liability for such deleted information. We have no obligation to provide you a copy of Your Data, except to the extent required by applicable law. You are solely responsible for exporting Your Data from the Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve Your Data.  The provisions of the Terms relating to limitation of liability, exclusion of warranties, indemnification and intellectual property rights shall continue to be effective after the Terms and your account are terminated.

Exclusion of Warranties

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.  YOU UNDERSTAND THAT BY USING THE SERVICES, YOU ARE RUNNING AN SSH SERVER THAT IS ACCESSIBLE TO THE PUBLIC INTERNET WHICH ALLOWS THIRD PARTIES TO CONNECT TO YOUR COMPUTER. YOU UNDERSTAND THAT THIS MAY POSE A SECURITY RISK TO YOUR INFORMATION. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.“  GRAVITATIONAL, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GRAVITATIONAL, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR © ANALYSIS DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE. 

Limitation of Liability 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT GRAVITATIONAL, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. YOU ACKNOWLEDGE THAT GRAVITATIONAL’S LIABILITY FOR ITS OWN NEGLIGENCE MAY NOT IN ANY EVENT EXCEED AN AMOUNT EQUIVALENT TO CHARGES PAYABLE BY YOU FOR SERVICES DURING THE PERIOD SUCH DAMAGES OCCURRED. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.  THE LIMITATIONS ON OUR LIABILITY TO YOU ABOVE SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

Indemnification 

You agree to hold harmless and indemnify us, and our subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Services, © your violation of applicable laws, rules or regulations in connection with the Services, or (d) content made available through the Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. We will provide you with written notice of such claim, suit or action.

Confidentiality

You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Gravitational and agree that you will (i) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions you employ with respect to its own confidential materials), (ii) not to make any use whatsoever at any time of such Confidential Information except to perform your obligations under these Terms, (iii) not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information or product thereof and (iv) not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Services in accordance with these Terms. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify us in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Gravitational upon termination of these Terms for any reason whatsoever.

The term “Confidential Information” shall mean any and all of Gravitational’s trade secrets, confidential and proprietary information, all other information and data of Gravitational’s that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure, or which a reasonable person would consider the information to be confidential, given its nature and the circumstances surrounding disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Gravitational, Gravitational’s business, operations and properties, including information about Gravitational’s staff, users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation. You acknowledge and agree that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to Gravitational, and therefore, that upon any such breach or any threat thereof, the Gravitational shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.

Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Other Content

The Services may include hyperlinks to other web sites or content or resources or email content. We may have no control over any web sites or resources which are provided by other parties.  You acknowledge and agree that we are not responsible for the availability of any such external sites or resources, and do not endorse any advertising, products or other materials on or available from such web sites or resources.  You acknowledge and agree that we are not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

We have established the following process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”).  If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:

Our Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:

Attention: Copyright Agent 
Gravitational, Inc. 
1377 Harrison Street
San Francisco, CA 94103
Email: [email protected] 

The Terms constitute the whole legal agreement between you and us and govern your use of the Services and completely replace any prior agreements between you and us in relation to the Services, including prior versions of the Terms. In the event of conflict between these Terms, a Sales Order or any written license agreement between Gravitational and you, such Sales Order or license agreement shall take precedence over these Terms. Should any provision of these Terms be found invalid or unenforceable, the remaining terms shall still apply.

There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

You agree that we may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services or our website at our sole discretion. By providing us your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail. 

You agree that if we don’t exercise or enforce any legal right or remedy which is contained in these Terms (or of which we have the benefit of under any applicable law), this will not be taken to be a waiver of our rights and that those rights or remedies will still be available to us. 

The Terms, and your relationship with us under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction of the courts located within the county of San Francisco, California to resolve any legal matter arising from the Terms. 

You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent (not to be unreasonably withheld).