Last Modified: September 13, 2017
- DEFINED TERMS. Any terms not defined in this Agreement but defined in the Order Form shall have those definitions.
- “Service” is Instana’s IT Monitoring services hosted by Instana and includes an Agent and Sensors installed in the Client’s servers and application environment(s) available via the Instana Site at www.instana.com. Instana may update or change the Service, Agent and/or Sensors with no prior notice to you, and you may be required to install updates to the Agent or Sensors installed on your computers to continue to receive the Service.
- “Order Form” means the document signed by both parties setting forth prices and quantities and/or duration of usage for Client’s purchase of the Instana Service.
- TERM. The term of this Agreement shall commence on the date Client accepts these Terms of Service and shall continue until terminated pursuant to the provisions of Section 8 of these Terms and Conditions or any Order Form, whichever comes first.
- INTELLECTUAL PROPERTY
- License. Subject to this Agreement, Instana hereby grants to Client a nonexclusive, revocable, nonsublicensable, nontransferable license to access and use the Service during the Term solely for its non-commercial internal business operations. Client is solely responsible for providing all telecommunications, computer and other equipment necessary for accessing the Service. Instana retains the right, in its sole discretion and with no notice to Client, to restrict or terminate access to the Service by Client if Instana has a good faith belief that Client has materially breached the terms of this Agreement, any Instana policies, or is using the Service as not intended or in a way that violates any applicable federal, state, local or international laws or regulations, or the rights of any third party.
- Ownership. Instana retains all rights not expressly granted to Client in this Agreement. Client acknowledges and agrees that Instana retains all rights, title and interest in and to the Service, including without limitation copyrights, patent rights, trademarks and trade names, and trade secrets.
- Restrictions on Use. Except as otherwise specifically permitted under this Agreement, Client shall not, nor will Client permit any third party to (i) copy, modify, distribute, sell, assign, pledge, sublicense, lease, loan, deliver or otherwise transfer the Service or any of its components to any third party in whole or in part, provided that Client may copy Instana’s documentation as needed for internal business use; (ii) derive or attempt to derive the source code of any portion of the Service by any means; (iii) reverse engineer, decompile, disassemble, or translate the Service or any part thereof; (iv) upload, post, mail, publish, transmit or distribute in any way the Service or its components; (v) make available through the Service any material or information that infringes the intellectual property rights, rights of publicity, or right of privacy of any entity or person, or impersonates another person including without limitation an Instana employee
- No Trademark License. No license, right or interest in the trademarks, trade names or service mark of either party or its licensor is granted hereunder, except as either party may agree in writing.
- CONFIDENTIAL INFORMATION AND CLIENT DATA
- Confidential Information. By virtue of this Agreement, either party may come into contact with the other party’s non-public or proprietary information (“Confidential Information”). Confidential Information shall include, without limitation, any information or materials supplied to, obtained by or observed by either party or its employees, agents, consultants or subcontractors including proprietary software, source code documents, financial information, documentation, data, benchmark tests, specifications, customers, marketing strategies, business practices and any other proprietary information supplied to one party by the other and identified as proprietary or confidential, user identification and passwords, and account information. The terms of any Order Form and these Terms and Conditions are also considered Confidential Information. Each party shall hold the Confidential Information of the other party in strict confidence and not disclose the Confidential Information to third parties nor use for any purpose not authorized herein, nor permit access to Confidential Information, except to those of its employees or authorized representatives having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein. Upon learning of any unauthorized use or disclosure of a disclosing party’s Confidential Information, the other party shall immediately notify the disclosing party. Client Data, as defined in Section 4.4, shall be considered Instana’s Confidential Information.
- The above restrictions of Section 4.1 shall not apply to: (i) information that becomes, through no act or fault of the party receiving the Confidential Information (“Receiving Party”), publicly known or generally known in the relevant industry; (ii) information received from a third party not obligated under a confidentiality agreement with the party disclosing the Confidential Information (“Disclosing Party”); (iii) information independently developed by either party without reference to the Confidential Information; (iv) information required to be disclosed by law or court or governmental agency order, provided the party gives prompt notice of such requirement to the other party, or; (v) disclosures to a professional advisor under a duty of confidentiality.
- Ownership and Return of Confidential Information. All Confidential Information shall remain the property of the Disclosing Party. Upon written request of the Disclosing Party, the other party shall promptly return to the Disclosing Party all documents and other tangible materials representing the disclosing party’s Confidential Information, together with all copies thereof; at Disclosing Party’s expense.
- CLIENT DATA. Title to ownership of all data transmitted to Instana pursuant to Client’s use of the Services (“Client Data”) shall remain with Client, provided, however, that Client hereby grants Instana a worldwide, exclusive, irrevocable license to access, use and analyze Client Data, which may be used by Instana in anonymized form for any purpose, including but not limited to analyzing the Client Data to improve the Instana Service. Upon request by Client made within thirty (30) days of the effective date of termination, Instana will delete all Client Data. After such a thirty day period, Instana shall have no obligation to maintain or provide any of Client’s Data.
- DISCLAIMER OF WARRANTY. THE INSTANA SERVICE, ACCESS THERETO, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND INSTANA AND ITS AFFILIATES AND AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO THE INSTANA SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE THROUGH THE INSTANA SERVICE IS FREE OF VIRUSES (ALTHOUGH INSTANA REPRESENTS THAT IT WILL USE COMMERCIALLY REASONABLE EFFORTS TO AVOID VIRUSES) OR OTHER HARMFUL CONTENTS OR COMPONENTS; (C) SHALL IN NO EVENT BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF THE INSTANA SERVICE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, INSTANA’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- LIMITATION OF LIABILITY.
- Exclusion of Consequential Damages. In no event shall Instana or Instana’s suppliers be liable for any indirect, incidental, special or consequential damages, including without limitation damages for loss of profits, data or use, incurred by Client or any third party, whether in an action in contract or tort, even if Instana has been advised of the possibility of such damages.
- Limitation of Direct Damages. The aggregate and cumulative liability of Instana and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by Client for the previous six (6) months under this Agreement.
- FEES AND PAYMENTS. All fees and amounts due to Instana shall be set forth in one or more Order Forms. All fees are non-refundable, and do not include any applicable taxes, which are the sole responsibility of the Client. All payments are due within thirty (30) days from the date of invoice. All payments not made within such thirty (30) day period shall be Delinquent Payments. Late fees shall accrue on all Delinquent Payments at the lesser of (i) 1.5% per month, or (ii) the maximum rate allowed under law. If Delinquent Payments are not made within fifteen (15) days of written notice to Client by Instana, Instana may, in its sole discretion, immediately terminate the applicable Order Forms, and Client’s access to the Service with no further liability to Client.
- TERMINATION. This Agreement shall continue to be in force until terminated by either party in accordance with this Section 8.
- Termination for Breach. If either party materially breaches this Agreement or an Order Form and such breach is not cured within thirty (30) days after written notice is given to the breaching party, then the other party may, by giving written notice to the breaching party, terminate the applicable Order Form as of the end of such thirty (30) day period or such later date as is specified in such notice of termination. Instana may also immediately terminate this Agreement pursuant to the terms of Section 3.1.
- Termination for Account Inactivity. Instana may close any Client account and terminate this Agreement if Client’s account is inactive for 180 days or longer, with no prior notice or compensation to Client.
- Effect of Termination. Upon termination of any Order Form due to Client’s breach, Client shall pay all amounts due to Instana under all Work Orders and shall not be entitled to a refund for any amounts already paid.
- MISCELLANEOUS. The laws of the State of California shall govern this Agreement without reference to its conflict of law principles. All claims under, or otherwise with respect to, this Agreement shall be brought and maintained in the state and federal courts located in San Francisco, California, USA, and the parties hereby expressly consent (and waive any right to otherwise object) to the exclusive venue and jurisdiction of such courts.
- Instana may unilaterally amend this Agreement by posting a new version online, and Client agrees to be bound by the amended Agreement unless it gives notice to Instana of its intent to terminate the Agreement in writing. Following such a termination, no refunds or credits will be issued to Client.
- Neither party may assign this Agreement, or its rights or duties hereunder, to any third party, in whole or in part, except that it is agreed that a change in control is not an assignment subject to this section; provided, however, that Instana may terminate this Agreement if a Client change in control results in Client ownership by an entity that Instana reasonably deems to be its competitor.
- All notices must be in writing and delivered personally or sent by overnight courier service to the address indicated in the Order Form, or such other address as either party may indicate by written notice, and will be deemed effective upon the earlier of actual or two business days after deposit with an overnight courier.
- The provisions of this Agreement are severable. If any one is held to be invalid, the invalid provision will be replaced by a valid clause coming closest to the invalid clause’s intention.
- In the event of any litigation arising out of or in connection with this Agreement or its interpretation or performance, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute.
- This Agreement constitutes the entire, exclusive and final statement of the agreement of the parties with respect to this subject matter, and supersedes all prior and contemporaneous representations, proposals, negotiations, discussions, and agreements between the parties, whether oral or in writing. There are no intended third-party beneficiaries under this Agreement.
- This Agreement may be executed in counterparts, which taken together shall be considered one original Agreement.
- Those provisions of Sections 4, 5, and 6 shall survive and the obligations thereof continue for a period of four (4) years following termination.
- Except for Client’s obligations to make payments as set forth in this Agreement, each party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental laws and regulations imposed after the fact, fire, communication line failures, power failures, earthquakes, floods or other natural disasters (a “Force Majeure Event”). Delays in delivery or in meeting completion dates due to Force Majeure Events shall automatically extend such dates for a period equal to the duration of such events.