Nanosek MSP Terms of Use
Document Version: December 20, 2022
These Terms of Use ("Nanosek Terms") govern the relationship between Nanosek Ltd. ("Nanosek") that is party to the Nanosek Order Form ("Order Form") to which these Nanosek Terms are attached and the party subscribing to the services under the Order Form ("Customer"). Cloudflare Terms and Conditions of use attached hereto as Exhibit A ("Cloudflare Terms") shall be an integral part of these Nanosek Terms. In the event of any inconsistency between the terms and conditions of these Nanosek Terms and any terms and conditions contained in the Cloudflare Terms and any other exhibit thereto, the Nanosek Terms shall prevail.
The Order Form together with these Nanosek Terms and the Cloudflare Terms is referred to herein as the "Subscription Agreement". Nanosek and the Customer each be referred to hereinafter as a "Party" and collectively as the "Parties".
1. Access to Services
Nanosek will grant access to the services (as defined in the Order Form) ("Services") to Customer solely to benefit Customers' internal business purposes only and pursuant to the provisions of the Subscription Agreement, including all documents referenced therein, as such terms may be updated from time to time.
2. Payment
In consideration for the Services, the Customer will pay Nanosek the fees set forth in the Order Form ("Annual Fees"), which will be paid by the Customer to Nanosek not later than 30 days following the issuance of an invoice by Nanosek. Payment of the Annual Fees shall be in USD. In the event the Customer wishes to pay in NIS or any other currency, the Customer shall bear all applicable currency exchange fees according to the exchange rates of Bank Leumi, as determined by Bank Leumi at the invoice date. Nanosek may modify the fees upon written notice to Customer. Such modified fees will not take effect for existing subscriptions until the next subscription Renewal Term.
3. Nonpayment
Nanosek may charge Customer interest on any past due amounts at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Nanosek may, in its sole discretion and without liability, terminate any Order Form for which Nanosek has not received payment of all invoiced fees or suspend such Order Form until such fees and any costs of collection are paid in full.
4. Taxes
Customer is responsible for all taxes or duties imposed by any government entity for subscriptions, excluding taxes based on Nanosek's net income (collectively, the "Taxes"), and, unless Customer has provided a valid exemption certificate, Customer will promptly pay any and all Taxes associated with the Order Form.
5. Nanosek Additional Services and Software Licenses
As part as providing the Cloudflare' Services, Nanosek may provide additional supporting services and licenses to proprietary software of Nanosek ("Nanosek Additional Services"). All rights in and to the intellectual property applicable to the Nanosek Additional Services, are and shall remain at all times Nanosek's, and the Nanosek Additional Services shall only be used and provided in conjunction with the Cloudflare' Services. Nanosek may provide additional service or license fee in connection with such Nanosek Additional Services, as shall be agreed with the customer. Upon termination of the Services under the Order Form, the Nanosek Additional Services shall terminate immediately, and Customer shall not be entitled to use such services or software for any other purpose. For the avoidance of doubt, Sections 9, 12, 13 and 14 shall specifically apply, mutatis mutandis, to the Nanosek Additional Services.
6. Usage Cap
If the Customer exceeds any of the usage cap (Total Quantity) for the Services above, Nanosek will invoice the Customer in arrears at a rate that corresponds to the rate set forth in the Order Form in the table after this one labelled "Excess Usage Pricing". If no such Excess Usage Pricing table has been added by the Parties or if such table does not include the Service(s) for which the Customer has exceeded the usage cap (Total Quantity), then Nanosek shall be entitled at its own discretion to increase the Fees for such Service(s) ("Additional Fees") to a rate tier that corresponds with the Customer's actual usage. Should the Customer fail to pay the Additional Fees, Nanosek will have the right to immediately terminate such Service for its convenience, and without Nanosek having liability to the Customer or any third party. Nothing herein shall derogate from Nanosek's right to receive the Additional Fees.
7. Support
Nanosek shall provide the Customer initial support and initial escalation of any Customer support requests (Level 1 and Level 2 support). According to Nanosek's sole discretion, and only if necessary and only to the extent Nanosek is unable to resolve the Customer support requests after making reasonable efforts and following all instructions by Cloudflare during Level 1 and Level 2 support, Nanosek may escalate the request to Cloudflare, which will provide final escalation support to Customer (Level 3 support).
8. Cloudflare Services Disputes
Any dispute arising of the use of Cloudflare Services ("Dispute"), will be subject to Cloudflare approval, and if the Dispute shall be found just by Cloudflare Nanosek shall credit the Customer with the applicable amount of the Dispute, in the following calendar months.
9. Restrictions
Customer will not, nor permit any third party to: (i) reverse engineer, decompile, or disassemble the Services; (ii) modify the Services or any documentation; (iii) distribute, sell, sublicense or otherwise transfer or provide access to the Services to any third party other than as subscriptions permitted by the Subscription Agreement; (iv) remove, amend, obscure, or modify any product markings or proprietary rights notices of Cloudflare or its licensors; (v) unless explicitly permitted by Nanosek pursuant to this Section 9, "white label" the Services, or present the Services in any way that obscures the fact that Cloudflare is the owner and provider of the Services; (vi) share access to or permit any person to access the Services, or Cloudflare's application program interface or any other interface permitting management of subscription(s) or Services ("API") other than with Customer's authorized employees managing subscription(s); (vii) use the API for any purpose other than to manage subscriptions; and (viii) substitute or replace managed internet properties. Customer will be permitted to add domains to each group of domains within a specific multi-user account which has a discrete set of logins but will not be able to move domains from one such group to another. Such group structure shall exist for the term of the subscription.
10. Subscription Term; Renewals; Termination
a. The Subscription Agreement shall commence on the commencement date (as determined in the Order Form) and shall continue for a period of 12 months or any other period as determined in the Order Form ("Initial Term"). At the end of the Initial Term and each Renewal Term (as defined below) thereafter, the Order Form shall renew automatically for a twelve (12) month period ("Renewal Term" and together with the Initial Term, "Subscription Term") at the then current rates, unless terminated by a Party at the end of the then current Subscription Term by giving the other Party written notice at least two (2) months prior to such renewal date. Except as agreed by Nanosek in writing: (a) no refunds will be provided for any termination, cancellation, or expiration of the Order Form, and (b) any unpaid fees covering the remainder of the Order Form must be paid upon such termination or cancellation.
b. Nanosek may terminate the Order Form for convenience, without liability, upon ninety (90) days prior written notice. Either Party may terminate the Order Form immediately, upon written notice: (i) if the other Party breaches any material provision of the Order Form and such breach cannot be cured, or, if such breach can be cured, fails to cure such breach within thirty (30) days after written notice thereof; (ii) if the other Party suffers a Force Majeure Event (as defined below) lasting more than thirty (30) days; or (iii) if the other Party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state or similar statute that is not dismissed within sixty (60) days, or becomes insolvent or subject to direct control by a trustee, receiver, or similar authority.
11. Intellectual Property
As between Nanosek, Cloudflare and Customer, Cloudflare and its licensors own all right, title, and interest in the Services, the underlying technology, related documentation and all intellectual property rights therein. All rights and licenses in and to the Services are reserved by Cloudflare and its licensors. Customer will use its reasonable efforts to protect Cloudflare' intellectual property rights and will promptly report to Nanosek any infringement or other violation of such rights of which Customer becomes aware.
12. Disclaimer of Warranties
THE SERVICES ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND. NANOSEK EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NANOSEK DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
13. Indemnification
Customer will defend, indemnify and hold harmless Nanosek and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against and any third party claims that resulting or arising from the Customer's breach of or any other act or omission of the Customer in connection with Customer's provision of the Cloudflare Services other than in accordance with the Subscription Agreement (a "Claim"), Customer will pay all damages and costs (including reasonable attorney's fees) finally awarded by a court of competent jurisdiction or paid in settlement for such a Claim. Should any portion of the Services become, or in Nanosek's opinion are likely to become, the subject of a Claim, Nanosek may, at Nanosek's option and expense: (i) procure for Customer the right to continue providing the Services; (ii) replace or modify the Services so that they no longer infringe; or (iii) if options (i) or (ii) are not commercially practicable within Nanosek's reasonable estimation, terminate the Order Form upon written notice.
14. Limitation of Liability
a. THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS". NANOSEK AND/OR ITS MANAGERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBCONTRACTORS OR AGENTS, DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY, QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NONINFERINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
b. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, OR FOR ANY LOSS OF REVENUE, DATA, OR PROFITS, AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE WARRANTIES AND REMEDIES PROVIDED HEREUNDER. THIS LIMITATION OF LIABILITY WILL APPLY WHETHER OR NOT THE OTHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. EXCEPT FOR BREACHES OF SECTION 9 (RESTRICTIONS) OR A PARTY'S OBLIGATIONS UNDER SECTION 13 (INDEMNIFICATION), EACH PARTY'S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY UNDER THESE NANOSEK TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO NANOSEK DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THESE NANOSEK TERMS, REGARDLESS OF THE NUMBER OF CLAIMS BROUGHT HEREUNDER. FOR CLARITY, ANY FEES PREVIOUSLY PAID OR OWING WILL NOT BE CREDITED AGAINST CUSTOMER'S MAXIMUM LIABILITY UNDER THIS SECTION 14.
15. Force Majeure
Neither Party will be liable for any loss or damage as a result of any failure to perform or any delay due to any cause beyond such Party's reasonable control (each a, "Force Majeure Event"), provided that the delayed Party uses reasonable efforts under the circumstances, to notify the other Party of the existence of the Force Majeure Event and works to resume performance as soon as possible. A Force Majeure Event shall not limit a Party's obligation to pay moneys owed prior to the Force Majeure Event.
16. Non-Solicitation
During the term of the Order Form and for a period of 12 months thereafter, the Customer shall not either directly or indirectly, in any capacity whatsoever, including through any business in which it may be an officer, director or shareholder solicit for employment any person who is employed by Nanosek, or any person retained by Nanosek as a consultant, advisor or the like, who is subject to an undertaking towards Nanosek to refrain from engagement in activities competing with the business of Nanosek, or was retained as an employee or a service provider of Nanosek during the previous six months.
17. Miscellaneous
a. If any provision of the Subscription Agreement is deemed illegal or unenforceable by a court of competent jurisdiction, such provisions shall be limited or eliminated to the minimum extent necessary so that the Subscription Agreement shall otherwise remain in full force and effect.
b. Headings are for convenience only and do not impact the construction of this Subscription Agreement and "including" means "including but not limited to."
c. All content referenced in this Subscription Agreement by hyperlink is incorporated into this Subscription Agreement in its entirety. This Subscription Agreement, together with all documents incorporated by reference and Order Forms, supersedes all prior discussions and writings and constitutes the entire agreement between the Parties with respect to the subject matter hereof.
d. No Party may assign this agreement without the written consent of the other Party.
e. No waiver or modification of this Subscription Agreement will be binding upon either Party unless made in writing and signed by a duly authorized representative of each Party and no failure or delay in enforcing any right will be deemed a waiver. This Subscription Agreement may be executed electronically and in counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
f. This Subscription Agreement and all of the exhibits and documents related thereto shall be governed by and construed in accordance with the laws of the State of Israel, without reference to its conflict of laws principles and the competent courts of Tel-Aviv, Israel shall have exclusive jurisdiction over any dispute arising herein.
Exhibit A — Service Terms
Cloudflare Terms and Conditions of Use
PLEASE CAREFULLY READ AND REVIEW THESE CLOUDFLARE TERMS AND CONDITIONS OF USE ("TERMS"). THESE TERMS GOVERN THE ACCESS AND USE OF SERVICES MADE AVAILABLE BY CLOUDFLARE, INC. ("CLOUDFLARE"). A SUBSCRIBER ("CUSTOMER") MAY ONLY SUBSCRIBE TO THE SERVICES THROUGH CLOUDFLARE OR ITS APPROVED PARTNERS, SUCH AS A RESELLER, DISTRIBUTOR, MANAGED SERVICE PROVIDER, OR PLATFORM PROVIDER (EACH A "PARTNER"), AS AUTHORIZED BY CLOUDFLARE IN A WRITTEN AGREEMENT WITH SUCH PARTNER ("PARTNER AGREEMENT"). IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF CUSTOMER BY SUBSCRIBING, ACCESSING OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT: (A) YOU HAVE FULL LEGAL AUTHORITY TO BIND CUSTOMER TO THESE TERMS; (B) YOU HAVE READ AND UNDERSTAND THESE TERMS; AND (C) YOU AGREE, ON BEHALF OF CUSTOMER, TO THESE TERMS. IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND CUSTOMER, DO NOT ACCEPT THESE TERMS.
1. Definitions
The following definitions apply in these Terms:
1.1 "Customer Account Information" means the information Customer provides upon subscribing to the Services, audit logs, and Customer's account settings.
1.2 "Customer Content" means any files, software, scripts, multimedia images, graphics, audio, video, text, data, or other objects originating or transmitted from or processed by any Internet Properties owned, controlled or operated by Customer or uploaded by Customer through the Services, and routed to, passed through, processed and/or cached on or within, Cloudflare's network or otherwise transmitted or routed using the Services by Customer.
1.3 "Customer Data" means collectively, Customer Account Information, Customer Content and Customer Logs.
1.4 "Customer Logs" means any logs of End Users' and administrative users' interactions with Customer's Internet Properties and the Service that are made available to Customer via the Service dashboard or other online interface during the Term by Cloudflare.
1.5 "Documentation" means all printed and online user manuals and other technical materials relating to the Services made available to Customer by Cloudflare, as may be updated from time to time.
1.6 "End User" means a third-party visitor or user of Customer's Internet Properties and/or services delivered thereon and Customer's employees, agents or contractors who access or use the Services.
1.7 "Enterprise Service Terms" means the terms of use for direct customers available at https://www.cloudflare.com/enterpriseterms/.
1.8 "Intellectual Property Rights" means any and all now known or hereafter existing worldwide: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing.
1.9 "Internet Properties" means a root domain or website, including any subdomain thereof, or any internet connected application.
1.10 "Laws" means any domestic, foreign, local, state, federal, supranational, or international laws and regulations, including, without limitation, any data protection laws, regulations and treaties applicable to the respective party ("Laws").
1.11 "Malicious Code" means viruses, worms, time bombs, Trojan horses, and other malicious code, files, scripts, software agents and programs.
1.12 "Network Data" means all models, observations, reports, analyses, statistics, databases, and other information created, compiled, analyzed, generated, or derived by Cloudflare from server, network or traffic data generated by Cloudflare in the course of providing the Service.
1.13 "Order Form" means Cloudflare's generated order form(s) and/or insertion orders for Services executed or approved by Partner and Cloudflare for the Services to be made available to Customer.
1.14 "Services" means Cloudflare's cloud-based solutions, along with any software made available by Cloudflare in connection with such services, including software development kits and application programming interfaces.
1.15 "Subscription" means an annual or multi-year subscription to Services as reflected in an Order Form.
2. Terms Binding on Customer
2.1 By subscribing to Services, agreeing to these Terms in writing, or using Services, Customer consents to be bound by these Terms. If Customer does not agree to be bound by these Terms, Customer may not access or use the Services.
2.2 Partner may only grant rights to Customer, and must pass through conditions, consistent with these Terms and the Order Form(s). Customer acknowledges that Cloudflare only provides Services to Customer as requested by Partner in Order Form(s) and that Partner is solely responsible to ensure Order Form(s) correctly reflect Customer's order with Partner. Customer therefore acknowledges and agrees that: (a) Customer only has the access and use rights set out in these Terms and the Order Form(s) regardless of any order or agreement with Partner; (b) any conditions in these Terms apply to Customer regardless of whether they are included in an agreement with Partner; (c) the limitations of liability set forth in these Terms will apply in favor of Cloudflare, its affiliates and suppliers; (d) Cloudflare is a third-party beneficiary of any agreement between Customer and Partner and is entitled to exercise and enforce all of Partner's rights and benefits against Customer; and (e) Cloudflare is not responsible for any discrepancy between Customer's order and the Order Form(s).
3. Services; Restrictions
3.1 Access Rights. Subject to Customer's compliance with these Terms and the terms of Customer's agreement with Partner, Cloudflare will make the Services included in Customer's Subscription available for the duration of the Subscription for use and access by Customer and its administrative users solely for the Customer's internal business purposes, and solely in accordance with the Documentation and these Terms.
3.2 Restrictions and Acceptable Use. Customer must not: (a) modify, copy, or create derivative works based on, the Service or Documentation; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise make the Service available to any third parties for use on any Internet Properties that are not owned and operated by Customer; (c) reverse-engineer the Service; (d) interfere with, or create an undue burden on the Service or Cloudflare's network in a manner that poses or has the potential to pose significant harm to Cloudflare's other customers or internal systems; (e) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, through the Service; (f) use the Service in violation of any Laws; (g) send or store Malicious Code in connection with the Service; (h) probe, scan or test any vulnerability of the Services, including, without limitation, performing penetration, stress or load testing, including by introducing software or automated agents or scripts, other than those expressly permitted by the Documentation or as explicitly set forth in the Order Form, without prior written consent from Cloudflare; (i) perform or publish any performance or benchmark tests or analyses relating to the Service, other than solely for Customer's internal use; or (j) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means.
3.3 Credentials. Customer is responsible for maintaining the confidentiality of all usernames and passwords created by or assigned to Customer's administrative users ("Credentials") and is solely responsible for all activities that occur under such Credentials. Customer agrees to notify Cloudflare promptly of any actual or suspected unauthorized use of any Credentials. Cloudflare reserves the right to terminate any Credentials that Cloudflare reasonably determines may have been accessed or used by an unauthorized third party and will provide immediate notice of such to Customer and promptly replace such Credential upon request. Credentials may not be shared or used by more than one individual, but may be reassigned to a new individual if any individual with Credentials no longer needs access requiring Credentials. For its added security, Cloudflare strongly encourages Customer to enable two-factor authentication in conjunction with all Credentials. Upon termination or expiration of the Subscription, all Credentials associated with the Customer's administrative users will be deactivated and Customer will immediately discontinue use of the Services.
3.4 Support Services; SLA. Cloudflare will provide technical support for the Services during the Term at the level included in Customer's Subscription in accordance with Cloudflare's Enterprise Customer Support and Service Level Agreement located at https://www.cloudflare.com/enterprise_support_sla/ ("Enterprise Support SLA"). If Cloudflare fails to meet the applicable service levels set forth in the Enterprise Support SLA (each such failure, a "Service Failure"), then as Customer's sole and exclusive remedy for any such Service Failure, Cloudflare will provide, at Customer's written request, Service Credits in accordance with the Enterprise Support SLA. Any Service Credits issued to Customer will be remitted to the Partner, and Partner will be solely responsible for providing such credits to Customer. If Customer subscribes to Services via a platform or managed service provider, no support services or service level agreements of any kind are included in these Terms and must be purchased from the Partner or via separate agreement.
3.5 Data Processing and Privacy. When and where applicable, the data processing addendum ("DPA") set out at https://www.cloudflare.com/cloudflare-customer-dpa/ applies to the processing of personal data on behalf of Customer. To the extent Cloudflare is the controller of personal data, Cloudflare's privacy policy set out at https://www.cloudflare.com/privacypolicy/ applies.
3.6 Supplemental Terms. Certain Services are subject to supplemental terms that, if applicable, are incorporated into these Terms by reference. A list of Services that are subject to such supplemental terms and the corresponding supplemental terms applying to such Services are set out at https://www.cloudflare.com/supplemental-terms/.
4. Proprietary Rights
4.1 Cloudflare Intellectual Property. Cloudflare reserves and retains all rights, title and interest in the Services, the Documentation, Network Data (including the right to use Network Data for purposes of providing, maintaining, developing, and improving its Services) and any of Cloudflare's proprietary technology, including, without limitation, any software, processes, scripts, algorithms, user interfaces, know-how, technologies, designs, and/or other tangible or intangible technical material or information that Cloudflare makes available to the Customer during the course of providing the Services, together with all updates thereto and all Intellectual Property Rights therein (collectively, "Cloudflare Technology") and Cloudflare or its licensors retain ownership in all Intellectual Property Rights related thereto. Cloudflare grants to Customer a limited right to use, reproduce, modify, and otherwise exploit the Network Data in connection with Customer's use of the Services, to the extent such Network Data are generally made available through the Services' dashboard or other online interface during the Subscription term. Cloudflare®, and any other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of Cloudflare (collectively, "Cloudflare Marks"), and may not be used by Customer without Cloudflare's prior written consent. Customer must not attempt, now or in the future, to claim any rights in the Cloudflare Marks or use the Cloudflare Marks to disparage or misrepresent Cloudflare, or the Services.
4.2 Customer Intellectual Property. Customer reserves and retains all rights, title and interest in Customer Data and Customer feedback and Customer or its licensors retain ownership in all Intellectual Property Rights related thereto. Customer hereby grants Cloudflare a worldwide, non-exclusive, limited right of use (including to store, copy, transmit and display) Customer Data solely as permitted under these Terms and as required to provide the Services, revocable in accordance with these Terms. Customer hereby grants Cloudflare a non-exclusive, royalty-free, worldwide, transferable, irrevocable, sublicensable, perpetual license to use or incorporate into the Cloudflare Technology any Customer feedback. All Customer feedback is provided by Customer on an "AS IS" basis without warranty or indemnity of any kind.
5. Customer Obligations; Use of Customer Data
5.1 Customer Obligations. Customer will: (a) be responsible for configuring the encryption for all Customer Data (excluding Customer Account Information) that it transmits through the Services; (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Services; (c) be solely responsible for keeping and maintaining its own copies of Customer Data, except for Customer Account Information; (d) notify Cloudflare promptly in writing of any unauthorized access or use of the Services or Credentials; and (e) be solely responsible for Customer-devised or Customer-implemented rules or settings (and associated misconfigurations and outages) and actions taken by Customer that might result in denial of service, availability issues, or performance degradation. UNDER NO CIRCUMSTANCE SHALL CLOUDFLARE BE LIABLE FOR ANY DELETION OR DESTRUCTION OF CUSTOMER DATA THAT CUSTOMER DID NOT BACK UP.
5.2 The ordinary operation of the Services requires Customer Data to pass through Cloudflare's network. Cloudflare may monitor and inspect the traffic on the Cloudflare network, including any related logs as necessary to perform the Services and to derive and compile Network Data. To the extent Network Data includes any Personal Data, Cloudflare will handle such Personal Data in compliance with applicable data protection laws. Cloudflare may use and retain Customer Account Information for business purposes related to these Terms and to the extent necessary to meet Cloudflare's legal compliance obligations (including, for audit and anti-fraud purposes).
6. Third-Party Products and Services; Beta Services
6.1 Third-Party Products and Services. Customer may access or use, at Customer's sole discretion, certain third-party products and services that interoperate with the Services including, but not limited to: third-party apps found on the Cloudflare Apps store located at www.cloudflare.com/apps/, third-party service integrations made available through the Cloudflare Service dashboard or APIs, and third-party products or services that Customer authorizes to access Customer's Cloudflare account using OAuth or other Credentials (collectively, "Third-Party Products"). Each Third-Party Product is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third-party provider. Customer's access or use of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Cloudflare does not make any representations, warranties, or guarantees regarding the Third-Party Products or the providers thereof, including, but not limited to, the Third-Party Products' continued availability, security, and integrity. Third-Party Products are made available by Cloudflare on an "AS IS" and "AS AVAILABLE" basis, and Cloudflare may cease providing them in the Cloudflare Apps Store at any time without entitling Customer to any refund, credit, or other compensation. Unless otherwise specified in writing by Cloudflare, Cloudflare will not be directly or indirectly responsible or liable in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with the installation of, use of, or reliance on the performance of any of the Third-Party Products.
6.2 Beta Services. Cloudflare may make non-production Services ("Beta Services") available to Customer upon Customer's request. All Beta Services will be clearly designated as Beta Services in any Order Form or the Service's dashboard. Beta Services are intended for testing purposes only and may be accessed by Customer at Customer's sole discretion. Cloudflare may, but is not obligated to, provide support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Regardless of whether Cloudflare provides technical support for the Beta Services, the SLA will not apply to the Beta Services unless specified otherwise in the applicable Order Form. Cloudflare may discontinue, suspend, or remove Beta Services (including any Customer Data stored as part of the Beta Services) or Customer's access thereto at any time in Cloudflare's sole discretion and has no obligation to make them generally available. Customer understands that any information regarding Beta Services is Cloudflare's Confidential Information and Customer agrees not to disclose such information unless a Beta Service becomes generally available, except as required by law, and to only use such information in connection with Customer's use of the Beta Services. Notwithstanding Section 10.1, Cloudflare will have no liability for any harm or damage arising out of or in connection with any Beta Services, including any obligation or liability with respect to Customer Data. Any configurations or Customer Data entered into Beta Services, and any customizations made to Beta Services by or for Customer, may be permanently lost.
7. Warranties and Disclaimers
7.1 Mutual Warranties. Each party warrants that it has the authority to enter into the Agreement and, in connection with its performance of the Agreement and/or its use of the Services, will comply with all applicable laws including, applicable laws related to data privacy, international communications and the transmission of technical or personal data as defined in the DPA.
7.2 Limited Warranty. Cloudflare warrants during the Subscription term to Customer that the Services will materially conform to the Documentation under normal use and circumstances. If Customer or Partner notifies Cloudflare of a breach of the foregoing warranty, Cloudflare will, at its option, either: (a) correct the nonconformity in the Service; or (b) issue a credit or refund of a portion of the fees paid to Cloudflare by Partner for the Subscription for the nonconforming Services that fairly reflects (at Cloudflare's reasonable determination) the diminished value of the nonconforming Service. Partner is solely responsible for providing to Customer any credit or refund based on Cloudflare providing a corresponding credit or refund to Partner, and Customer's recourse for Partner's failure to pay such credit or refund is solely with Partner. A Service Failure does not constitute a breach of this Limited Warranty and is exclusively addressed by the Enterprise Support SLA. The foregoing constitutes Customer's sole and exclusive remedy for any breach of this limited warranty.
7.3 Additional Cloudflare Warranties. Cloudflare warrants that (i) during the initial term and each renewal term of a Subscription the functionality of the Services will not be materially degraded; and (ii) to the best of its knowledge, the Services do not contain, and Cloudflare will not knowingly introduce, any Malicious Code. Cloudflare may sunset, retire or replace any Service or feature thereof if applicable to all customers of the affected Service, provided the functionality of the Service will not be materially degraded during the then current term. Cloudflare warrants that it has implemented and will maintain a comprehensive written information security program that includes administrative, physical, and technical safeguards to protect Customer Data as set out at https://www.cloudflare.com/security-exhibit/.
7.4 Customer Warranties. Customer represents and warrants that to the best of its knowledge, Customer Data does not contain, and Customer will not knowingly introduce, any Malicious Code into the Cloudflare network.
7.5 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 7, CLOUDFLARE MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, PAST OR PRESENT, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CLOUDFLARE CANNOT AND DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CLOUDFLARE IS NOT RESPONSIBLE FOR ANY FAILURES OR DAMAGES ARISING FROM SUCH PROBLEMS.
8. Limitation of Liability
8.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER LAW, IN NO EVENT WILL CLOUDFLARE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE, GOODWILL, PERSONAL OR PROPERTY DAMAGE, OR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES) RESULTING FROM OR IN CONNECTION WITH THE TERMS OR CUSTOMER'S USE, OR INABILITY TO USE THE SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF CLOUDFLARE HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Amount of Damages. EXCEPT WITH RESPECT TO CLOUDFLARE'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE MAXIMUM LIABILITY OF CLOUDFLARE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE TERMS WILL BE LIMITED TO AND WILL NOT EXCEED IN THE AGGREGATE, THE FEES PAID BY CUSTOMER TO CLOUDFLARE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THE TERMS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE TERMS WILL NOT INCREASE CLOUDFLARE'S LIABILITY. EXCEPT WHERE PROHIBITED BY LAW, NO CLAIM REGARDLESS OF FORM, WHICH IN ANY WAY ARISES OUT OF THE AGREEMENT MAY BE MADE, NOR ACTION BASED UPON SUCH CLAIM BE BROUGHT BY CUSTOMER, MORE THAN ONE (1) YEAR AFTER THE TERMINATION OR EXPIRATION OF THE SERVICES. IN NO EVENT WILL CLOUDFLARE'S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES.
9. Informal Dispute Resolution
In the case of any disputes under the Terms, the parties will first attempt in good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of a formal proceeding.
10. Indemnification
10.1 By Cloudflare. Cloudflare will defend, indemnify, and hold harmless the Customer and its officers, directors, employees, and agents from and against any and all damage, cost, liability and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of third parties arising from or that are based upon an allegation that Customer's use of the Services infringes any United States Intellectual Property Right. If any portion of the Services becomes, or in Cloudflare's opinion is likely to become, the subject of a claim of infringement, Cloudflare may, at Cloudflare's option: (a) procure for Customer the right to continue using the affected Services; (b) replace the affected Services with non-infringing services which do not materially impair the functionality of the Services for Customer; (c) modify the affected Services so that they become non-infringing; or (d) terminate the Subscription to the extent of the affected Services and work with Partner to provide a pro rata refund of any fees already paid by Customer to cover the remainder of the Subscription term of such Services, and upon such termination, Customer will immediately cease all use of the affected Services. Notwithstanding the foregoing, Cloudflare will have no obligation under this Section or otherwise with respect to any infringement claim to the extent based upon: (w) any use of the Services not in accordance with these Terms or the Documentation; (x) any use of the Services in combination with third party products, equipment, software or content (including Customer Data) not supplied by Cloudflare; or (z) any modification of the Services by any person other than Cloudflare or its authorized agents. THIS SUBSECTION SETS FORTH CLOUDFLARE'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
10.2 By Customer. Customer understands and acknowledges that it is solely responsibility for the risks associated with its activities and contents on its Internet Properties or any misuse of the Services and that Cloudflare should not be held responsible for such risks. Therefore, Customer will defend, indemnify and hold harmless Cloudflare and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of third parties arising from or that are based upon: (a) Customer's use of the Services in a manner not permitted by these Terms or the Documentation; (b) Customer Data or Customer's Internet Properties (including without limitation any activities or aspects thereof or commerce conducted thereon); or (c) Customer's non-compliance with applicable law.
10.3 Procedure. The indemnifying party's obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; provided, that failure to provide such prompt notice will not release the indemnifying party from its indemnity obligations except to the extent the indemnifying party is materially prejudiced thereby; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; (c) the indemnified party will cooperate with the indemnifying party (at the indemnifying party's expense) to facilitate the settlement or defense of any claim or suit; and (d) the indemnifying party will not settle any claim or suit in a manner which results in an admission of liability by the indemnified party, without the indemnified party's prior written consent.
11. Termination
11.1 Termination for Material Breach. Each party may terminate a Subscription and these Terms if the other party materially breaches these Terms and, only if curable, fails to cure such breach within thirty (30) days following receipt of notice of the breach from the other party. If Customer terminates a Subscription in accordance with this section 11.1, Cloudflare will refund to Partner any prepaid fees covering the remainder of the Subscription term after the effective date of termination. If Cloudflare terminates a Subscription in accordance with this section 11.1, Customer will pay any unpaid fees covering the remainder of the Subscription term.
11.2 Termination for Non-Payment. If Cloudflare, or the Partner through which Customer subscribed to the Services, does not receive timely payment for the Services, Cloudflare may terminate all Subscriptions of Customer. Customer consents to these termination rights and acknowledge and agrees that Cloudflare shall have no liability to Customer of any kind with respect to any such termination.
11.3 Effect of Termination. When a Subscription terminates or expires, all rights and licenses granted to Customer, including the right to use and access the Services, automatically terminate and Customer must immediately cease use of the Services and return or destroy all copies of any software. Except as otherwise agreed by Cloudflare in writing or set out in these Terms: (a) no refunds will be provided for any termination, cancellation, or expiration of a Subscription; (b) any unpaid fees covering the remainder of a Subscription must be paid upon such Subscription's termination or cancellation; and (c) Customer's sole recourse for any refund, if any, is against Partner.
12. General
12.1 Compliance with Laws. Customer shall comply with all Laws and Customer is solely responsible for determining whether use of the Services will satisfy Customer's individual compliance obligations. Customer shall not use the Services for any reason if Customer or any party that owns or controls Customer, are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, the United Kingdom, or other applicable government authority. Customer shall not use the Services to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited.
12.2 Assignment. Under the terms of the Partner Agreement, the agreement between Customer and Partner for Services may be assigned to Cloudflare. Customer agrees in case of such assignment, that Customer's continued rights to access and use the Services are subject to Cloudflare's then current Enterprise Service Terms and Customer consents to the application of Enterprise Service Terms, including without limitation, the billing and payment provisions contained therein. Customer agrees that following any such assignment, Customer shall, upon request by Cloudflare, provide such information as is required to secure payment for any Subscription. Customer will not assign, subcontract, delegate, or otherwise transfer any Subscription, or its rights and obligations under these Terms, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of Cloudflare, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void, ab initio. Cloudflare may upon written notice, assign the Service Terms and performance of any Subscription in its entirety without the requirement to obtain consent, in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets. Subject to the remainder of this section, these Terms will be binding upon the Customer and Cloudflare and their respective successors and permitted assigns.
12.3 Confidential Information. For the purposes of these Terms, "Confidential Information" means any information disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party") which: (a) if disclosed in writing or electronically, is labeled as proprietary or confidential at the time of disclosure; (b) if disclosed orally, is identified as proprietary or confidential at the time of such disclosure, and is then summarized in a writing provided to the Receiving Party within one (1) month of the date of such disclosure; or (c) by its nature is confidential and would be judged so under a reasonable standard, or is disclosed or provided under circumstances reasonably indicating it is confidential or proprietary. In addition, these Terms, non-public information regarding the Services (including, without limitation, the Documentation, all underlying software, user interfaces, screenshots, information about the Cloudflare network, information concerning the performance, capacity, or design of the Services or any source code), and any Customer Feedback, is the Confidential Information of Cloudflare. Confidential Information will remain the sole property of the Disclosing Party. Except for the specific rights granted by these Terms, or as necessary for Cloudflare to perform the Services, the Receiving Party will not use any Confidential Information of the Disclosing Party for its own account. The Receiving Party will use the same standards to protect the Confidential Information of the Disclosing Party as it affords its own such information, but in no event less that the highest commercially reasonable degree of care. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any third party without the express written consent of the Disclosing Party (except solely for Receiving Party's internal business needs or as necessary for Cloudflare to perform the Services, to employees or consultants who have a need to know such information and who are bound by a written agreement or professional obligation to restrict the disclosure and use of such Confidential Information in a manner consistent with these Terms). The foregoing obligations will not restrict a Party from disclosing Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the Party required to make such disclosure provides reasonable notice to the other Party to enable them to contest such order or requirement, unless such Party is prevented from doing so by force of law. The restrictions set forth in this Section 12.3 will not apply to the identities of the Parties, or to any Confidential Information that: (i) was or becomes available to the public other than by a breach of these Terms by the Receiving Party; (ii) was rightfully received by Receiving Party without confidential or proprietary restriction from a third party who has a right to disclose it; (iii) was independently developed by the Receiving Party without access to or use of the Disclosing Party's Confidential Information; (iv) was known to the Receiving Party at the time of disclosure, without confidential or proprietary restriction; (v) was produced in compliance with applicable law or a court order; provided, that the Disclosing Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production; or (vi) was approved by the Disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized representative of the Disclosing Party.
12.4 Force Majeure. Any delay in the performance of any duties or obligations of a Party (except the payment of money owed for Services used prior to the onset of the Force Majeure Event) will not be considered a breach of these Terms if such delay is caused by events beyond the reasonable control of that Party (including, for example, labor disputes, interruption, delays or collapse of public communications or infrastructure (including the Internet), shortages of materials, fire, earthquake, flood, or other acts of God (each, a "Force Majeure Event"); provided, that the delayed Party uses reasonable efforts, under the circumstances, to notify the other Party of the existence of the Force Majeure Event and works to resume performance as soon as possible.
12.5 Notices. Customer is responsible for updating its notice information with Partner, including providing Partner with an up-to-date e-mail address for the provision of notices under these Terms. If the latest e-mail address provided to Partner by Customer is not valid, or for any reason is not capable of delivering any notice required by these Terms, Customer acknowledges and agrees that Cloudflare's or Partner's dispatch of an e-mail to such address will nonetheless constitute effective notice. Any notice to be provided directly to Cloudflare pursuant to these Terms shall be sent to legal@cloudflare.com and shall be effective upon actual receipt by Cloudflare.
12.6 Government Restrictions. If Customer is an agency, department or entity of the United States Government ("Government"), Customer understands and agrees, that (a) Customer's rights to use, reproduce, release, modify or disclose the Cloudflare Technology, or any part thereof, is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies, (b) the Cloudflare Technology consists of "commercial computer software" and "commercial computer software documentation," respectively, as defined in FAR Section 12.212 and DFARS Section 227.7202, or their successor provisions, as applicable and (c) use of the Cloudflare Technology by any Government agency, department or other agency of the Government is further restricted as set forth in these Terms.
12.7 Amendment. Cloudflare may amend these Terms at any time by providing at least ten (10) days prior notice of such amendment, provided that any amendment shall not take effect until any renewal of a Subscription following such amendment. Customer's continued use of the Services after such renewal and the effective date of the amendment may be relied upon by Cloudflare as Customer's consent to the amendment. Each amendment will supersede any previous versions of these Terms and will govern any Services rendered to Customer by Cloudflare on or after the effective date of the amendment.
12.8 Miscellaneous. The Parties are independent contractors, and neither Party is an agent, partner, or employee of the other Party. If any provision of these Terms is deemed illegal or unenforceable by a court of competent jurisdiction, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect. Headings are for convenience only and do not impact the construction of these Terms and "including" means "including but not limited to." Each Party participated equally in the preparation of these Terms, and no ambiguity shall be resolved against any one Party. Unless otherwise stated herein, all remedies are cumulative and not to the exclusion of any other rights and remedies available at law or in equity. These Terms, and any actions or disputes arising therefrom, shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions. The jurisdiction and venue for any action arising out of or relating to these Terms shall be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts. Notwithstanding the foregoing, either party may seek equitable relief or enforcement of any judgment in any other court of competent jurisdiction. The Parties acknowledge that any actual or threatened breach of Section 3.2 or Section 12.3 may constitute immediate, irreparable harm to the non-breaching Party, for which monetary damages may be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing Party will be entitled to receive its attorneys' fees, court costs, and other collection expenses from the non-prevailing Party, in addition to any other relief the prevailing Party may receive. Any provision of these Terms that explicitly or by its nature contemplates performance or observance after termination or expiration of these Terms, including Sections 8, 9, 10, 11 and 12, shall so survive and continue in full force and effect. All content referenced in these Terms by hyperlink is incorporated into these Terms in its entirety. These Terms, together with all documents incorporated by reference and Order Forms, supersede all prior discussions and writings, and constitutes the entire agreement between the Parties with respect to the subject matter hereof. In case of a conflict between the terms of these Terms and an Order Form, the Order Form shall control, but only to the extent there is a conflict. The terms of any purchase order, written terms or conditions, or other document submitted by Customer to Partner or Cloudflare which contains terms which are different from, in conflict with, or in addition to these Terms are hereby rejected by Cloudflare, and will be void and of no effect. No waiver or modification of these Terms will be binding upon either Party unless made in writing and signed by a duly authorized representative of each Party and no failure or delay in enforcing any right will be deemed a waiver.
END OF TERMS