These ActiveCove Terms of Service (this "Agreement") is entered into by and between ActiveCove, Inc. ("ActiveCove") and the entity or person placing an order for or accessing the ActiveCove Services ("Customer"or "you"). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below and any Order Forms. If you are accessing or using the ActiveCove Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you"or "Customer"reference your company.
Please note that ActiveCove may modify the terms and conditions of this Agreement in accordance with Section 12.9 (Amendments; Waivers).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE ACTIVECOVE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE ACTIVECOVE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1.1. "ActiveCove Code" means the software extension and other software code provided by ActiveCove to enable use of the ActiveCove Service.
1.2. "ActiveCove Service" means ActiveCove's proprietary workflow intelligence platform for software developers.
1.3. "ActiveCove Technology" means the ActiveCove Service, any other ActiveCove products and services, and all related or underlying documentation, technology, code, Aggregate/Anonymous Data, logs, product usage data, know-how, logos, materials, and templates (including anything delivered as part of support or other services), and any updates, modifications or derivative works of any of the foregoing (including as may incorporate any Feedback).
1.4. "Confidential Information" means code, inventions, know-how, product plans, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
1.5. "Customer Data" means any data collected from by the ActiveCove Service on behalf of Customer and any data or content that Customer provides to the ActiveCove Service.
1.6. "Effective Date"of this Agreement is the date which is the earlier of (a) Customer's initial access to the ActiveCove Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
1.7. "Order Form" means any ActiveCove ordering documentation, online sign-up, or subscription flow that references this Agreement.
1.8. "Subscription Term" means the initial term for the subscription to the applicable ActiveCove Service specified on an Order Form, and each subsequent renewal term (if any). If Customer is using a Free Access Subscription, the Subscription Term may be terminated by Customer at any time.
1.9. "Third-Party Product" means any content, documentation, applications, integrations, software, code, online services, systems, other products not developed by ActiveCove.
3.1. Use of ActiveCove Services. Subject to the terms and conditions of this Agreement, ActiveCove grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the ActiveCove Service, solely for Customer's business. The ActiveCove Service may require installation of ActiveCove Code within Customer's development environment. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant ActiveCove Code.
3.2. General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, distribute, or otherwise provide access to any portion of the ActiveCove Service to a third party; (ii) modify or create a derivative work of the ActiveCove Service or any portion of it; (iii) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any ActiveCove Service (including ActiveCove Code), except to the extent expressly permitted by applicable law and then only with advance notice to ActiveCove; (iv) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the ActiveCove Service; **(v)**access the ActiveCove Service for the purpose of building a competitive product or service or copying its features or user interface; (vi) use the ActiveCove Service for purposes of product evaluation, benchmarking, performance testing, or comparative analysis intended for publication; or (vii) remove or obscure any proprietary or other notices contained in the ActiveCove Service, including in any reports or output obtained from the ActiveCove Service.
3.3. Beta Releases and Free Access Subscriptions. ActiveCove may provide Customer with an ActiveCove Service for free or on a trial basis (a "Free Access Subscriptions" ) or with "alpha", "beta", or other early-stage ActiveCove Services, integrations, or features ( "Beta Releases" ), which are optional for Customer to use. ActiveCove makes no promises that future versions of Beta Releases or Free Access Subscriptions will be released or will be made available under the same commercial or other terms. ActiveCove may terminate Customer's right to use any Free Access Subscriptions or Beta Releases at any time in ActiveCove's sole discretion, without liability. WITH RESPECT TO BETA RELEASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH ACTIVECOVE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER'S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
4.1. Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data. Customer grants ActiveCove a non-exclusive, worldwide, royalty-free right to collect, use, modify and process Customer Data solely: (i) to provide the ActiveCove Service and related services to Customer and (ii) to generate separate anonymous data sets about product usage that do not identify Customer and that are stripped of all persistent identifiers (such as name, email address, device identifiers, IP addresses, and cookie IDs) ( "Aggregate/Anonymous Data" ).
4.2. Security. ActiveCove will implement appropriate technical and organizational security measures designed to protect Customer Data in the ActiveCove Service against unauthorized or unlawful processing, accidental or unlawful destruction, accidental loss or alteration, and unauthorized disclosure or access. ActiveCove's security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.
5.2. Fees. To the extent the ActiveCove Services are made available for a fee, Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. ActiveCove's fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of ActiveCove. Except as expressly provided in this Agreement, payments are non-refundable and non-creditable and payment obligations non-cancellable. All undisputed fees due are payable in United States dollars, unless otherwise agreed to between the parties in writing.
5.3. Credit Card Payment Terms. If Customer elects to pay via credit card, then Customer is solely responsible for either (a) enabling auto-recharge on Customer's payment instrument or (b) ensuring that Customer's payment instrument has a sufficient positive balance to cover all fees due. If, for any reason, Customer has a negative balance on its account(s), then ActiveCove reserves the right to suspend access to the ActiveCove Services. 3. 5.4. Invoicing Payment Terms. If Customer elects to receive invoices and pay in arrears as agreed by ActiveCove, then invoices will be sent to via email in accordance with the Order Form. Except as otherwise set forth in an Order Form, Customer will make all of the undisputed fees hereunder within thirty (30) days of the date of the invoice. If Customer is overdue on any payment of undisputed fees and fails to pay within ten (10) business days of a written notice, then ActiveCove may assess, and Customer agrees to pay a late fee of either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less.
5.5. Disputes. Customer must notify ActiveCove in writing of any good-faith invoice dispute within twenty (20) days of the applicable invoice date and reasonably cooperate with ActiveCove in resolving any dispute. If the parties are unable to resolve a dispute within ten (10) days of Customer's notice, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any provision in this Agreement that would limit seeking these remedies on account of a payment dispute. For clarity, any undisputed amounts must be paid in full in accordance with this Section.
6.1 Term. This Agreement is effective as of the Effective Date and continues until terminated. Either party may terminate this Agreement with thirty (30) days' advance written notice if all Subscription Terms for the ActiveCove Service(s) have expired or are terminated as expressly permitted in this Agreement.
6.2. Subscription Term and Renewals. By executing an Order Form for purchase of an ActiveCove Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 6.4 (Termination for Cause). If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the ActiveCove Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.
6.3. Suspension of Service. ActiveCove may suspend Customer's access to the ActiveCove Service(s) ifCustomer's account is overdueand Customer fails to pay amounts due within ten (10) days of notice by ActiveCove, subject to Section 5.4 (Disputes). ActiveCove may also suspend Customer's access to the ActiveCove Service(s) if it determines thatsuspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the ActiveCove Service.
6.4. Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
6.5. Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form, Customer's license rights terminate and it must promptly: (a) stop using the applicable ActiveCove Service(s) (including any related ActiveCove Technology); (b) delete (or, at ActiveCove's request, return) any and all copies of the ActiveCove Code, any ActiveCove documentation, passwords or access codes, and any other ActiveCove Confidential Information in Customer's possession, custody, or control. If ActiveCove terminates this Agreement for cause as provided in Section 6.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. If Customer terminates this Agreement for cause as provided in Section 6.4 (Termination for Cause), Customer will receive a refund of any subscription fees it has pre-paid for the terminated portion of the applicable Subscription Term. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
6.6. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 2 (Account Registration and Use); 3.3 (General Restrictions); 3.5 (Beta Releases and Free Access Subscriptions); 4.1 (Rights in Customer Data); 5 (Fees and Payment); 6 (Term and Termination); 7 (Confidential Information); 8 (ActiveCove Technology); 9 (Indemnification); 10 (Disclaimers); 11 (Limitations of Liability); and 12 (General).
7.1. Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party's Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party's Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party's Confidential Information with its employees, agents or contractors having a legitimate need to know (which, for ActiveCove, includes the subcontractors referenced in Section 12.5), provided that the party remains responsible for any recipient's compliance with the terms of this Section 7 and that these recipients are bound to confidentiality obligations no less protective than this Section.
7.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party's Confidential Information. A party may also disclose the other party's Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
7.3. Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
8.1. Ownership and Updates. This is a subscription agreement for access to and use of the ActiveCove Service. Customer acknowledges that it is obtaining only a limited right to use the ActiveCove Service and no ownership rights are transferred to Customer under this Agreement. ActiveCove (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all ActiveCove Technology, which is deemed ActiveCove's Confidential Information, and reserves any licenses not specifically granted in this Agreement. Other than the ActiveCove Code, the ActiveCove Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any ActiveCove Service, that ActiveCove may collect learnings, logs, and data regarding the performance and use of the ActiveCove Service, and that ActiveCove may make updates, bug fixes, modifications or improvements to the ActiveCove Service from time-to-time.
8.2. Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to ActiveCove (collectively, "Feedback" ), Customer hereby grants ActiveCove a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however ActiveCove will not identify Customer as the source of the Feedback. Nothing in this Agreement limits ActiveCove's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
11.1 Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ACTIVECOVE BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
11.2 Liability Cap. ACTIVECOVE'S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO ACTIVECOVE FOR THE APPLICABLE ACTIVECOVE SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, ACTIVECOVE'S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
11.3 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 11 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ACTIVECOVE TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.1. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in San Francisco, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.
12.2. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the other party's advanced written consent, except that each party may assign this Agreement without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be void.
12.3. Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices and warranty and indemnity claims) to ActiveCove, in English to email@example.com. ActiveCove may send notices to the email addresses on Customer's account or, at ActiveCove's option, to Customer's last-known postal address. ActiveCove may also provide operational notices regarding the ActiveCove Service or other business-related notices through conspicuous posting of the notice on ActiveCove's website or the ActiveCove Service. Each party consents to receiving electronic notices. ActiveCove is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
12.4. Subcontractors. ActiveCove may use subcontractors and permit them to exercise the rights granted to ActiveCove in order to provide the ActiveCove Service and related services under this Agreement. These subcontractors may include, for example, ActiveCove's hosting providers. However, subject to all terms and conditions of this Agreement, ActiveCove will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the ActiveCove Services if and as required under this Agreement.
12.5. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
12.6. Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
12.7. Export. Each party will comply with all applicable export control laws. Customer represents and warrants that it is not on any government list of prohibited or restricted parties or located in (or a national of) a country subject to a government embargo or that has been designated by the government as a "terrorist supporting"country.
12.8. Publicity. Customer agrees that ActiveCove may refer to Customer's name and trademarks in ActiveCove's marketing materials and website, including but not limited to displaying the Customer's logo, solely for the purpose of identifying Customer as a customer of ActiveCove.
12.9. Amendments; Waivers. ActiveCove may update the terms and conditions of this Agreement (which may include changes pricing and plans) from time to time with prior notice to Customer in accordance with Section 12.3. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
12.10 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
12.11. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement.
12.12. Entire Agreement. This Agreement represents the parties' complete and exclusive understanding relating to the Agreement's subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the ActiveCove Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.