Updated June 2, 2018
AVAILABLE ON AWS MARKETPLACE TO AWS ACCOUNT HOLDERS
End User Service Agreement
PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN “CUSTOMER” (AS DEFINED IN THE SERVICE ORDER LINKED TO THIS AGREEMENT), AND IMERIT INC. (“iMerit”).
CUSTOMER INITIATED AN ORDER TO USE IMERIT’S SERVICES (THE “SERVICES”) THROUGH CUSTOMER’S AWS ACCOUNT FOR ACCESS AND USE IN CONNECTION WITH AWS SERVICES TO BE PROVIDED TO CUSTOMER BY iMERIT. IN ORDER TO USE THESE SERVICES, CUSTOMER MUST FIRST READ THIS AGREEMENT AND INDICATE ITS ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW.IF CUSTOMER DOES NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT FOR SERVICES AND CUSTOMER IS NOT BEING GRANTED A LICENSE TO ANY SOFTWARE UNDER THIS AGREEMENT.
Agreed Definitions. In addition to initially capitalized definitions, descriptions, clarifications, and agreements that may be set forth elsewhere in this Agreement (that include all policies, procedures, and iMerit websites made a part hereof) that are referenced/incorporated herein,
“Affiliate” means as to a Party, each person that is Controlled by a Party, that Controls such Party, or that is under common Control with such Party. “Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity shares or interests (or the maximum equity ownership permitted by Applicable Law if such Party is not permitted to own more than 50%) entitled to vote for the directors or other management of such Party or the equivalent, but only for as long as such ownership relationship continues to exist. Upon request, each Party agrees to confirm in writing to the other Party, the status of any or all Affiliates.
“Applicable Laws” means all mandatory national, federal, provincial, state, municipal, and local laws, statutes, acts, ordinances, regulations, rules, codes, treaties, executive orders, supervisory requirements, official directives, circulars, opinions, interpretive letters, and other official releases in the Territory that are applicable from time-to-time to a Party’s performance of its obligations and/or exercise of its rights hereunder, including data protection/privacy laws; corrupt activities/illegal payment laws; economic/trade sanctions rules and regulations; and export/import laws.
“AWS” means Amazon Web Services, Inc.
“AWS Account” means Customer’s active account with AWS to the AWS Marketplace.
“AWS Customer Agreement” means all of the AWS terms, conditions, restrictions, and policies applicable to Customer resulting from the Order and from Customer’s subscription to, and use of, AWS Services, including, but not limited to, the executed AWS Customer Agreement as well as AWS’ acceptable use policy, site terms, content terms, and service terms as well as other applicable policies and procedures published by AWS from time-to-time.
“AWS Marketplace” means the software/service marketplace operated by AWS located at https://aws.amazon.com/marketplace, as it may be updated or superseded from time-to-time by AWS.
“AWS Services” means the cloud computing platform/infrastructure hosting service provided by AWS to Company pursuant to an AWS Customer Agreement entered into between AWS and Company.
“Customer” refers to a person that: (1) has agreed to this Agreement; (2) has Ordered, accesses, and/or uses (only in accordance with this Agreement) Services through Customer’s AWS account; and (3) has a current AWS Account.
Customer may avail any of the Services listed upon selection of the desired Services and acceptance of this Agreement. In case of any customization of the services, a mutually agreed upon Statement of Work needs to be executed.
AWS is responsible for and performs all: (a) AWS customer account creation; (b) provisioning, support, and maintenance of all AWS Services; and (c) ongoing AWS Account management and granting the AWS Marketplace customer access to and use thereof as well as metering, billing, and collection of AWS Marketplace fees for such access/use of Services.
- Purchase. Pricing for the Services is based upon the utilization of Services by Customer as listed at AWS Marketplace and as indicated by Customer in the Service Order. Customer’s Service level may be upgraded or downgraded at any time during the term of this Agreement.
- Fees and Payment. Fees and Payment terms are governed by AWS Marketplace Payment terms (https://aws.amazon.com/marketplace/help/buyer-payment?ref=help_ln_sibling).
- Customer Data. iMerit will not own any data, information or material that Customer submits to iMerit in the course of its provision of the Services (the “Customer Data”). Customer will be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and sole intellectual property ownership thereof. Further, Customer will be solely responsible for maintaining, securing and storing all Customer Data. iMerit will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
- Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services (the “Software”), and the Services, are and shall remain the sole and exclusive property of iMerit. Accordingly, Customer acknowledges that iMerit owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of iMerit. Customer will not take any actions inconsistent with iMerit’s ownership of each of iMerit’s rights in and to the Software.
All ideas, inventions, discoveries, creations, improvements, concepts, developments, methods, tools, know-how, trade secrets, works of authorship, documentation, templates, processes, techniques, data, programs, reports, information, materials, designs, drawings, specifications, plans and other documents of any kind whatsoever prepared or created specifically by iMerit in connection with, pursuant to or resulting from the specific Services (the “Deliverables”) shall be the sole property of and belong to Customer.
- Confidential Information. Each of iMerit and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). In the event that the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice of such pending disclosure. For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party’s business affairs, internal operations, personnel, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information; (iv) can be proven by competent evidence to have been independently developed by the Receiving Party; (v) is furnished by the Disclosing Party to a third party without restriction on the third party’s right of disclosure; (vi) is approved in writing for release by the Disclosing Party; or (vii) is required to be disclosed by order of court or law.
- Use of Certain Information. In the course of using the Services or the Professional Services, as the case may be, Customer may provide to iMerit certain information, including, but not limited to, contact and technical information (the “Information”). Customer agrees that iMerit may use the Information in connection with its provision of the Services. iMerit will not provide any Information to any third party without Customer’s authorization and will use reasonable efforts to prohibit any third party that receives any such Information from selling or redistributing such Information without Customer’s authorization.
- Representations, Warranties and Covenants. Customer represents, warrants and covenants to iMerit that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
- Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IMERIT AND ITS AFFILIATES, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
- Limitation of Liability. IN NO EVENT WILL IMERIT OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF IMERIT OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL ANY REPRESENTATIVE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO IMERIT FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or IMerit non-provision, of the Services (or the Professional Services), Customer’s sole and exclusive remedy shall be for IMerit to use commercially reasonable efforts to repair or provide the Services.
- Indemnification. Customer agrees to indemnify, defend and hold harmless iMerit, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) arising from Customer’s negligence or intentional misconduct, violation of this Agreement or the Policies, breach of any of its representation, warranties or covenants set forth herein, or infringement of any intellectual property rights or other rights of any person or entity.
- Term and Termination.
This Agreement and Customer’s access to Services will become effective as of the date the applicable Order is accepted by AWS and shall continue in effect thereafter as set forth in the applicable Order accepted by AWS and the AWS Customer Agreement, unless terminated in accordance with AWS Terms and Condition.
- Third Party Products and Services. Certain third parties offer products and services related to the Service. Any interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party. Despite any recommendation by iMerit or use of such third-party products or services, iMerit does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. Customer hereby releases and agrees to indemnify and hold harmless iMerit from any liability or damage arising from Customer’s engagement of any such third party or use of any such products or services.
- Governing & Dispute Resolution.
(a) This Agreement will be governed by the laws of the State of California without regard to conflicts of law principles thereof.
(b) All disputes, claims and/or causes of action arising out or in connection with the present Agreement or the Services (including any alleged violation of this Agreement, any controversy relating to the interpretation or enforceability of this Section, the arbitrability of any dispute, or any claim that this Agreement (or any part thereof) is invalid, illegal or otherwise voidable (or void)) (collectively, “Dispute”), which cannot be settled amicably, shall be resolved in accordance with the procedures specified in this Section 16.(b), as follows, which shall be the sole procedures for the resolution of any such Disputes:
- Negotiation. The Parties shall attempt promptly and in good faith to resolve any Dispute arising out of or relating to the Agreement by negotiation.
- Mediation. If any Dispute should arise between the Parties that cannot be resolved through negotiation, the Parties shall endeavor to settle the Dispute by mediation. Either Party may request in writing that the other Party mediate the Dispute; such notice shall set forth the subject of the Dispute and the relief requested (“Dispute Notice”). Unless the Parties otherwise agree, the mediation shall be conducted by a mediator affiliated with and under the rules of JAMS. The selection of an organization by the Parties shall be made within ten (10) business days after a Party requests mediation of a Dispute pursuant to this provision. If an organization/judge and applicable rules have not been agreed upon within such ten-day period, then the Dispute shall be mediated by a single neutral mediator chosen by JAMS.
iii. Arbitration. If within ninety (90) days after the date of the Dispute Notice the Dispute is not resolved, either Party may serve the other Party with a written notice of binding arbitration. Unless the Parties otherwise agree, the arbitration shall be conducted by and under the commercial arbitration rules of the same organization that conducted the mediation. The arbitration shall be conducted by one (1) arbitrator.
- Damages. The arbitrator or arbitrators are not empowered to award either damages in excess of those permitted under this Agreement or the applicable SOW or attorneys’ fees, legal costs or expenses.
- Relationship. This Agreement does not create a partnership, joint venture or agency relationship between iMerit and Customer. Customer does not have any right, power, or authority to act as a legal representative of iMerit.
- Permission to Use Logo. Customer grants permission to iMerit to use Customer’s logo on the iMerit website, or any other marketing material when referring to Customer. Customer will retain all title and rights to such logos.
- Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of iMerit. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
- Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
- Force Majeure. Neither party hereto shall be liable for any failure to timely perform any of its obligations under this Agreement if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including, without limitation, fire, flood, strikes, hurricanes, and other industrial disputes, failure of raw material, failure of transport, accidents, wars, riots, insurrections, acts of God or orders of any government department or agency.
- Notices. Customer may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to 14435C Big Basin Way #256, Saratoga, CA 95070, Attn: Jeff Mills, Email: firstname.lastname@example.org.
- Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
- Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between iMerit and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the iMerit and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.
- No Waivers. iMerit’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
- Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by iMerit. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.