Prior Terms of Service
Attention: This Terms of Service is obsolete. Please see our current Terms of Service here.
Previous ToS Versions
Terms of Service
THESE TERMS OF SERVICE (“TERMS”) GOVERN CUSTOMER’S ACCESS AND USE OF THE SAAS SERVICES, SOFTWARE AND SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. GRAVITATIONAL, INC. (“TELEPORT”) AND CUSTOMER SHALL EACH INDIVIDUALLY BE REFERRED TO AS A “PARTY” AND TOGETHER CONSTITUTE THE “PARTIES”.
THESE TERMS ARE EFFECTIVE AS OF THE DATE YOU FIRST CLICK “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX) OR USE OR ACCESS THE SOFTWARE OR SAAS SERVICES, WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”). THESE TERMS DO NOT HAVE TO BE SIGNED IN ORDER TO BE BINDING. YOU INDICATE YOUR ASSENT TO THESE TERMS BY CLICKING “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX) AT THE TIME YOU REGISTER FOR THE SOFTWARE, SAAS SERVICES, CREATE AN ACCOUNT, OR PLACE AN ORDER. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF THE SOFTWARE OR SAAS SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.
IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SOFTWARE, SAAS SERVICES OR SERVICES.
Teleport’s competitors are prohibited from accessing the Licensed Materials, except with Teleport’s prior written consent.
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Scope.
1.1 These Terms set forth the terms and conditions under which Teleport will provide the Software and Services to Customer during the Subscription Term, whether the Software is deployed into Customer’s Computing Environment and/or made available as SaaS Service from Teleport’s Computing Environment.
1.2 Account Credentials. As part of the registration process, Customer will identify an administrative username and password (“Administrator Credentials”). Customer may use the Administrative Credentials to create accounts (each with their own separate usernames and passwords) for its Users (“User Credentials”), in accordance with the provisions of the applicable Sales Order. The Administrator Credentials and Users Credentials are collectively referred to as the “Account Credentials”. Customer is responsible for maintaining the security of the Account Credentials and will promptly notify Teleport upon learning of any compromise to the Account Credentials.
1.3 Affiliates. The rights granted under these Terms apply only to the Customer entity that signs a Sales Order with Teleport. Customer Affiliates shall be entitled to enter into one or more Sales Orders with Teleport pursuant to these Terms and, in such circumstances, all references in these Terms to Customer shall be deemed to be applicable to the Customer Affiliate with respect to that Sales Order, unless otherwise set forth in writing. With respect to each such Sales Order, such Customer Affiliate becomes a party to these Terms and references to Customer in these Terms are deemed to be references to such Customer Affiliate. Each Sales Order is a separate obligation of the Customer entity that enters into such Sales Order, and the rights granted in connection with such Sales Order are solely for the benefit of such Customer entity that enters into such Sales Order, and no other Customer entity has any liability, obligation or rights under such Sales Order.
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Licenses.
2.1 Licensed Materials.
2.1.1 If the Subscription is for Software deployed in Customer’s Computing Environment, Teleport hereby grants to Customer during the Subscription Term, a nonexclusive, worldwide (subject to Section 12.4), non-transferable (except as permitted under Section 12.2), license to deploy, operate and use the Software in Customer’s Computing Environment and to allow its Users to access and use the Software, as so deployed, in accordance with these Terms, the Documentation and Sales Order.
2.1.2 If the Subscription is for Software deployed via SaaS Service, Teleport hereby grants to Customer during the Subscription Term, a nonexclusive, worldwide (subject to Section 12.4), non-transferable (except as permitted under Section 12.2), license to access and use the Software via the SaaS Service and to allow its Users to access and use the Software and SaaS Service, in accordance with these Terms, the Documentation and Sales Order.
2.1.3 Permitted Use. Customer may use the SaaS Service and Software only in support of Customer’s internal operations.
2.2 Users. Customer is responsible for all obligations hereunder arising in connection with its Users’ access and use of the Licensed Materials. In addition, Customer is liable for any act or omission by such User to the same degree as if the act or omission were performed by Customer such that a User’s breach of these Terms will be deemed to be a breach of these Terms by Customer.
2.3 Restrictions. Except as specifically provided in these Terms, Customer and its User may not (a) copy the Licensed Materials, in whole or in part; distribute copies of Licensed Materials, in whole or in part, to any third party; (b) modify, adapt, translate, make alterations to or make derivative works based on Licensed Materials or any part thereof; (c) decompile, reverse engineer, disassemble or otherwise attempt to derive source code, algorithms or the underlying structure of the Software; (d) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to any part of the Licensed Materials to third parties; (e) use the Licensed Materials to act as a consultant, service bureau or application service provider; (f) permit access of any kind to the Licensed Materials to any third party; (g) incorporate the Software into a product or service Customer provides to a third party; or (h) access or use the Software to develop a competitive product or service, or engage in competitive analysis or benchmarking.
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Services, Product Previews, Free Trials and Third Party Services.
3.1 Professional Services. Teleport may provide Professional Services under these Terms. The scope, pricing, and other terms for these services will be described in the applicable Sales Order.
3.2 Support Services. During the Subscription Term, Teleport will provide Support Services to Customer in accordance with the support package purchased by Customer.
3.3 Product Previews. During the Term, Teleport may offer access to Product Previews. Use of Products Previews is permitted only for Customer’s internal evaluation during the period designated by Teleport. Either Party may terminate Customer’s use of Product Previews at any time for any reason. Customer acknowledges and understands that Product Previews may contain bugs, errors, omissions, or otherwise be inoperable, incomplete or include features never released. The Product Previews, including without limitation Customer’s assessment of or Feedback are the Confidential Information of Teleport. Notwithstanding anything else in this Agreement, Teleport offers no warranty, indemnity, or Support Services for Product Previews
3.4 Free Trial. If Customer registers for a free trial, Teleport will make the Software or SaaS Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Software or SaaS Services, or (b) the start date of any purchased subscription ordered by Customer for such Software or SaaS Services, or (c) termination by Teleport in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Notwithstanding anything else in this Agreement, Teleport offers no warranty, indemnity, or Support Services for Free Trials involving the Software or SaaS Services.
3.5 This Party Services. Teleport may utilize certain third party software, technology, or services (“Third Party Services”) to facilitate and support the SaaS Service, including to process and administer payment. Teleport does not control and is not responsible for any third party software, technology, or services integrated with the SaaS Service or accessed or used by Customer in connection with Customer’s use of the SaaS Service. The ability to use third party software, technology, or services in connection with the SaaS Service does not imply any endorsement by Teleport and Teleport makes no representations or warranties with respect to any third party software, technology, or services. If Customer or Users are required to agree to any third party software licenses or other third party terms, Customer shall be responsible for complying with such third party terms and conditions and for compliance by its Users.
3.6 NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES, REMEDIES AND DISCLAIMERS” SECTION AND “TELEPORT INDEMNITY” SECTIONS BELOW, PRODUCT PREVIEWS AND FREE TRIALS OF THE SOFTWARE AND SAAS SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND TELEPORT SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO ANY PRODUCT PREVIEWS OR THE SOFTWARE OR SAAS SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE TELEPORT’S LIABILITY WITH RESPECT TO THE PRODUCT PREVIEWS OR SOFTWARE OR SAAS SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00). WITHOUT LIMITING THE FOREGOING, TELEPORT AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE PRODUCT PREVIEWS OR THE SOFTWARE OR SAAS SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, AND (B) CUSTOMER’S USE OF THE PRODUCT PREVIEWS OR THE SOFTWARE OR SAAS SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THESE TERMS TO TELEPORT AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE PRODUCT PREVIEWS OR THE SOFTWARE OR SAAS SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
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Billing and Payment.
4.1. Monthly and Annual Plans. Subscriptions for Software deployed in the Customer’s Computing Environment are offered on an annual basis and Subscriptions for the SaaS Service are offered either on a monthly subscription basis (e.g., Teleport Team) or an annual subscription basis.
4.1.1 Usage Data Reporting. Unless otherwise agreed upon by Teleport, Customers that deploy the Software in their Computing Environment will provide Usage Data to Teleport through the usage reporting capability included in the Software and will not disable such capability in the Software. Subject to Section 11.2(a), if Customer disables such capability or otherwise fails to provide such Usage Data, Teleport will have the right to terminate the Sales Order and Agreement.
4.2. Renewals. Except as otherwise specified in the Sales Order, unless either Party cancels Customer’s Subscription prior to expiration of the current Subscription Term, Customer’s Subscription will automatically renew for another Subscription Term of a period equal to Customer’s initial Subscription Term. Customer will provide any notice of non-renewal through the means Teleport designates, which may include settings in the Customer’s account or contacting the Teleport support team. The cancellation of a Subscription means that Customer will not be charged for the next billing cycle, but Customer will not receive any refunds or credits for amounts that have already been charged. Unless otherwise set forth in the applicable Sales Order, the Software will be charged at the then-current rates.
4.3. Payment. Customer will pay all fees by the due dates and in the currency specified in the applicable invoice. Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by law, whichever is less, and may be assessed by Teleport in its discretion. Customer agrees that Teleport may bill Customer’s credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, and unpaid fees, as applicable. All fees are non-refundable except as expressly provided in these Terms.
4.3.1. Self-Service Plans. If Customer purchases a monthly Subscription to the SaaS Service (e.g., Teleport Team), all payments under these Terms will be made and processed using a third party processing platform (“PSP”) as indicated on the invoice. Customer may be required to register and create an account with the PSP. Payment processing services for the SaaS Service provided by the PSP are subject to the PSP’s terms and conditions, terms of service, or similar contract (“PSP Agreement”). By agreeing to these Terms, Customer agrees to be bound by the PSP Agreement. As a condition of Teleport enabling payment processing services through the PSP, Customer agrees to provide Teleport accurate and complete information, and Customer authorizes Teleport to share it and transaction information related to Customer’s use of the payment processing services provided by the PSP. Teleport is not a party to the PSP Services Agreement as the PSP Services Agreement is a contract between Customer and the PSP. Accordingly, Teleport has no obligation, responsibility or liability to Customer any User under the PSP Services Agreement.
4.4. Taxes. Customer is responsible for any sales, use, duty, goods and services tax, value-added, withholding or similar taxes, tariffs, levies, duties and other governmental charges whether domestic or foreign (collectively, “Taxes”); other than Teleport’s income. If Customer is required by law to withhold any Taxes, Customer must provide Teleport with an official tax receipt or other appropriate documentation, and all fees are payable hereunder without any deduction for such withheld Taxes or otherwise. If Teleport has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Teleport with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5. Purchase Order. If the Customer requires the use of a purchase order, the Customer is responsible for providing the applicable purchase order at the time of purchase. No provision of any purchase order or other business form employed by Customer will supersede or supplement the terms of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
4.6. Suspension and Acceleration. If any fees owing by Customer under these Terms is thirty (30) days or more overdue, (or ten (10) or more days overdue in the case of amounts Customer has authorized Teleport to charge to Customer’s credit card), Teleport may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under these Terms so that all such obligations become immediately due and payable, and suspend access to the Software and SaaS Services (as applicable) until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Teleport will give Customer at least ten (10) days’ prior notice that its account is overdue, in accordance with Section 12.8 (Notices) for billing notices, before suspending services to Customer.
4.7. Audit. During the Term, Teleport may audit Customer's use of the Software to confirm its compliance with these Terms. Teleport will provide at least thirty (30) days prior notice and such audit will be conducted to not unreasonably interfere with Customer business activities. Teleport may conduct no more than one (1) audit in each six (6) month period during a Subscription Plan Term, which will be conducted during normal business hours. If an audit reveals non-compliance with these Terms, Teleport may invoice Customer for any past or ongoing excessive use, the reasonable costs of the audit and Customer will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Teleport at law or equity or under these Terms.
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Ownership.
5.1. Reservation of Rights. Subject to the licenses granted herein, Teleport retains all right, title and interest (including, but not limited, to intellectual property rights) in and to the Licensed Materials, Product Previews, and all improvements, enhancements or modifications to the foregoing, and anything developed and delivered under these Terms, including without limitation Usage Data.
5.2. Feedback. Customer may provide Teleport comments or suggestions for enhancements, improvements, new features, functionality, information, ideas or other feedback (collectively, “Feedback”) with respect to the Licensed Materials and/or Product Previews. Teleport will have full discretion to determine whether or not to proceed with the development of any requested enhancements, improvements, new features or functionality. Customer hereby grants Teleport 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. Nothing in these Terms limits Teleport’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
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Representations and Warranties.
6.1. Mutual Warranties. Each Party represents and warrants that (a) it has the authority to enter in and perform these Terms and that the execution and delivery of these Terms has been duly authorized; (b) these Terms and such Party’s performance hereunder will not breach any other agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party; and (c) it will comply with all laws, rules, and regulations applicable to such Party in its performance under these Terms.
6.2. Licensed Material Warranties. Teleport represents and warrants that (a) in the case of Software deployed in the Customer’s Computing Environment, the Software will conform, in all material respects, to the specifications set forth in the Documentation, when installed, operated and used in accordance with the Documentation; and, (b) in the case of Software deployed as a SaaS Service, the Software will conform, in all material respects, to the specifications set forth in the Documentation during the Subscription Term.
6.3. Service Warranties. Teleport represents and warrants that the Services will be performed in a professional manner in accordance with Teleport’s Service descriptions.
6.4. Remedies. If the Licensed Materials or Services fail to conform to the warranties in this Section, Teleport will, at its option and expense, correct the Software and re-perform the Service as necessary to conform to the applicable warranties. If Teleport does not correct the Software or re-perform the Services to conform to the warranties within a reasonable time, not to exceed thirty (30) days (or such other period as may be agreed upon by the Parties) (the “Cure Period”), Customer may for a period of thirty (30) days following the conclusion of the Cure Period (or such other period as may be agreed upon by the Parties), elect to terminate the applicable Sales Order and these Terms, in which case Teleport will refund to Customer on a pro-rata basis any prepaid fees covering the remainder of the Subscription Term in the applicable Sales Order as of the effective date of termination.
6.5. Warranty Exclusions. Notwithstanding anything to the contrary, the warranties in this Section do not cover and Teleport will not be responsible for (a) errors in or resulting from Customer Data, third party equipment, software or products; (b) misuse of the Licensed Materials or failure to follow the Documentation; (c) modifications to the Software or Services performed by anyone other than Teleport or its subcontractors; or (d) any Product Previews. The remedies in this Section will be Customer’s sole and exclusive remedies (and Teleport’s sole liability) for any breach of the warranties.
6.6. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE LICENSED MATERIALS AND SERVICES ARE PROVIDED “AS IS,” AND TELEPORT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. TELEPORT WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TELEPORT. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, TELEPORT DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY LICENSED MATERIALS AND SERVICES, OR THAT (A) THE USE OF ANY LICENSED MATERIALS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE LICENSED MATERIALS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE LICENSED MATERIALS AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATION; OR (D) ERRORS OR DEFECTS WILL BE CORRECTED. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
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Confidentiality.
7.1. Definition. “Confidential Information” means any nonpublic information disclosed by either Party (“Disclosing Party”) to the other Party (“Receiving Party”) or accessible to the Receiving Party that is designated as confidential at the time of disclosure or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including without limitation technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, strategic roadmaps, plans, designs and architecture, security information, pricing and cost information, and other technical, financial or business information. The Licensed Materials are Confidential Information of Teleport. Confidential Information will not, however, include any information which: (a) was publicly known or made generally available to the public prior to the time of disclosure; (b) becomes publicly known or made generally available after disclosure through no fault of the Receiving Party; (c) is in the possession of the Receiving Party, without restriction as to use or disclosure, at the time of disclosure by the Disclosing Party; (d) was lawfully received, without restriction as to use or disclosure, from a third party (who does not have an obligation of confidentiality or restriction on use itself); or (e) is developed by the Receiving Party independently from these Terms and without use of or reference to the Disclosing Party’s Confidential Information. Except for rights expressly granted in these Terms, each Party reserves all rights in and to its Confidential Information.
7.2. Obligations. The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information and will avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information using reasonable precautions. The Receiving Party will protect the Disclosing Party’s Confidential Information with the same degree of care that a prudent person would exercise to protect its own confidential information of a like nature, and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof or access thereto. The Receiving Party will restrict Confidential Information to individuals who need to know such Confidential Information and who are bound to confidentiality obligations at least as protective as the restrictions described in this Section. Except as necessary for the proper use of the Licensed Materials, the exercise of a Party’s rights under these Terms, performance of a Party’s obligations under these Terms or as otherwise permitted under these Terms, neither Party will use Confidential Information of the other Party for any purpose except in fulfilling its obligations or exercising its rights under these Terms. The Receiving Party will promptly notify the Disclosing Party if it becomes aware of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, and reasonably cooperate with the Disclosing Party in attempts to limit disclosure.
7.3. Compelled Disclosure. If the Receiving Party is requested or compelled by applicable law or order of a court of competent jurisdiction, regulatory authority, or governmental department or agency, to disclose any of Disclosing Party's Confidential Information, Receiving Party’s disclosure of such Confidential Information shall not constitute a breach of these Terms; provided that Receiving Party provides Disclosing Party with reasonably prompt written notice, to the extent legally permitted, so that Disclosing Party may seek an appropriate remedy and/or waive compliance with this provision. The Receiving Party shall reasonably cooperate with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of Confidential Information. Upon disclosure, Receiving Party shall (a) disclose only that portion of the Confidential Information that is necessary to comply with the applicable law or order; and (b) assert the privileged and confidential nature of Confidential Information against the Party seeking disclosure. Notwithstanding any provisions herein, if Customer is a government agency or entity, Customer will comply with all laws applicable to it with respect to disclosure of public information.
7.4. Injunctive Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.
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Additional SaaS Service Obligations and Responsibilities. This Section applies to Subscriptions for Software deployed via the SaaS Service only.
8.1. Acceptable Use.
8.1.1. Customer will not use the SaaS Service to (a) store, download or transmit infringing or illegal content, or any viruses, “Trojan horses” or other harmful code; (b) engage in any fraudulent or illegal activity; (c) interfere with or disrupt the integrity or performance of the SaaS Service, component or data contained therein or on Teleport’s system or network or circumvent the security features of the SaaS Service; or (d) perform penetration testing, vulnerability testing or other security testing on the SaaS Service, component or Teleport’s systems or networks or otherwise attempt to gain unauthorized access to the SaaS Service or Teleport systems or networks.
8.1.2. Teleport may suspend Customer’s or a User’s right to access or use any portion or all of the SaaS Service immediately upon notice to Customer (a) if Teleport, after reasonable due diligence given the nature and severity of the issue, reasonably determines that (i) Customer or a User’s use of the SaaS Service poses a material risk to the security or operation of Teleport’s systems, the SaaS Service or the systems or data of any other customer, or (ii) Customer or a User’s use of the SaaS Service violates these Terms or is illegal or fraudulent; or (b) Customer fails to pay any undisputed amounts within thirty (30) days after notice of past due amounts. To the extent reasonably practicable, Teleport will limit the suspension of the SaaS Service pursuant to subsection (a) as needed to mitigate the applicable risk. Teleport will promptly restore the SaaS Service to Customer upon resolution of the issue and/or payment of the outstanding amounts (as applicable).
8.2. Customer Data.
8.2.1. Customer is and will continue to be the sole and exclusive owner of all Customer Data and other Confidential Information of Customer. Nothing in these Terms will be construed or interpreted as granting to Teleport any rights of ownership or any other proprietary rights in or to the Customer Data.
8.2.2. Customer will obtain all necessary consents, authorizations and rights and provide all necessary notices and disclosures in order to provide Customer Data to Teleport and for Teleport to use Customer Data in the performance of its obligations in accordance with the terms of these Terms, including any access or transmission to third parties with whom Customer shares or permits access to Customer Data.
8.2.3. Customer hereby grants to Teleport a nonexclusive, worldwide, royalty-free right and license to copy, distribute, display, host, process, store, transmit, and use Customer Data as necessary for Teleport to provide the Software, Services and perform its obligations and exercise its rights under these Terms.
8.3. Usage Data. Nothing in these Terms will restrict (a) Teleport’s use of Usage Data or data derived from Usage Data that does not identify or permit, alone or in conjunction with other data, identification, association, or correlation of or with Customer, its Affiliates, or Users; or (b) either Party’s use of any data, records, files, content or other information related to any third party that is collected, received, stored or maintained by a Party independently from these Terms.
8.4. Security. Teleport agrees to maintain appropriate administrative, physical and technical measures designed to secure its systems from unauthorized disclosure or modification, which are described at https://goteleport.com/legal/security-addendum/ and incorporated by reference herein.
8.5. Data Protection Addendum. If Teleport processes personal data as part of Customer Data, the Parties agree that such personal data will be processed in accordance with the terms of the Teleport Data Processing Addendum (“DPA”) located at https://goteleport.com/legal/dpa and incorporated by reference herein.
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Limitations of Liability.
9.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL, REPUTATIONAL HARM, LOSS OF DATA, INTERRUPTION OF BUSINESS), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THESE TERMS ARE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO TELEPORT UNDER THESE TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
9.3. Excluded Claims. “Excluded Claims” mean (a) amounts owed by Customer under any Sales Order; (b) either Party’s indemnification obligations in Section 10 (Indemnification); (c) Customer’s breach of Section 2.3 (Restrictions); and (d) a Party’s gross negligence or willful misconduct in the performance of its obligations under these Terms.
9.4. Nature of Claims and Failure of Essential Purpose. The Parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
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Indemnification.
10.1. Teleport Indemnity. Teleport will, at its expense, defend Customer and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Customer Indemnified Parties”) from and against any claim, action, proceeding or lawsuit brought by a third party (“Claims”) alleging that the Licensed Materials, when used as authorized under these Terms, infringes any third party patent, trademark or copyright, or misappropriate any third party trade secret. Teleport will indemnify Customer Indemnified Parties for any damages and costs finally awarded by a court of competent jurisdiction or agreed to in a settlement agreement executed by Teleport.
10.2. Customer Indemnity. Customer will, at its expense, defend Teleport and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Teleport Indemnified Parties”) from and against any and all Claims arising out of, resulting from or in connection with Customer’s use or misuse of the Licensed Materials and/or Services, including without limitation (a) Claims by Users; (b) unauthorized disclosure or use of personal information, including without limitation, information in Customer Data; or (c) infringement or misappropriation of any copyright, patent, trademark or trade secret by the Customer Data or Teleport’s permitted use thereof. Customer will indemnify Teleport Indemnified Parties for any damages and costs finally awarded by a court of competent jurisdiction or agreed to in a settlement executed by Customer. Notwithstanding any provisions herein, if Customer is a government entity, this Section will not apply except as permitted by applicable law.
10.3. Process. The Party seeking indemnification (“Indemnified Party”) will give the other Party (“Indemnifying Party”) prompt written notice of the Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will give the Indemnifying Party their reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. An Indemnified Party may participate in the defense at its own expense. The Indemnifying Party will control the defense or settlement of the Claim, provided that the Indemnifying Party, without the Indemnified Party’s prior written consent (a) will not enter into any settlement that; (i) includes any admission of fault by the Indemnified Party; (ii) imposes any financial obligations on the Indemnified Party that Indemnified Party is not obligated to pay under this Section; (iii) imposes any non-monetary obligations on any Indemnified Party; and (iv) does not include a full and unconditional release of any Indemnified Party; and (b) will not consent to the entry of judgment, except for a dismissal with prejudice of any Claim settled as described in (a). The Indemnifying Party will ensure that any settlement into which it enters for any Claim is made confidential, except where not permitted by applicable law. THIS SECTION SETS FORTH THE INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF THE INDEMNIFYING PARTY WITH RESPECT TO ANY CLAIM.
10.4. Infringement Remedy. If Customer’s use of the Licensed Materials is (or in Teleport’s opinion is likely to be) enjoined, whether by court order or by settlement, or if Teleport determines such actions are reasonably necessary to avoid liability, Teleport may, at its option and in its discretion (a) procure the right or license for Customer’s continued use of the Licensed Materials in accordance with these Terms; (b) modify or replace the Licensed Materials so that the modified or replaced Licensed Materials are reasonably comparable in functionality and do not infringe, misappropriate or violate any third party copyright, patent, trademark or trade secret; or (c) terminate Customer’s right to continue using the Licensed Materials and refund to Customer on a pro-rata basis any prepaid fees covering the remainder of the Subscription Term in the applicable Sales Order as of the effective date of termination.
10.5. Limitations. Teleport’s indemnification obligations do not apply (a) if the Licensed Materials are modified by anyone other than Teleport; (b) if the Licensed Materials are used in combination with any third party product, software, service or equipment; (c) Customer’s breach of these Terms; (d) to any Claim arising as a result of circumstances covered by Customer’s indemnification obligations; (e) Customer's failure to incorporate Licensed Materials updates or upgrades that would have avoided the alleged infringement, provided Teleport offered such updates or upgrades without charge not otherwise required by these Terms; (f) Product Previews; and (g) Free Trials.
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Term and Termination.
11.1. Term. These Terms commence on the Effective Date and continue until the expiration of all Subscriptions (“Term”), unless terminated as set forth in herein.
11.2. Termination. Either Party may terminate these Terms (including all Sales Orders) if the other Party (a) fails to cure any material breach of these Terms within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within sixty (60) days thereafter.
11.3. Effect of Termination.
11.3.1. Upon any termination or expiration of the Subscription or these Terms, Customer’s right to use the Software licensed under such Subscription will terminate, and Customer’s access to the Software and Services provided under such Subscription will be disabled and discontinued.
11.3.2. As soon as practicable following Customer’s written request, Teleport will delete or destroy the Customer Data or Customer Confidential Information in its possession, provided, however, Teleport may retain Customer Data or Customer Confidential Information if required by law or if such data exists within backups where it is put beyond practicable use and deleted in accordance with Teleport's separate retention timeframes for archival media, and such data will remain subject to the requirements of these Terms.
11.3.3. Survival. The following Sections will survive any termination or expiration of these Terms: 2.3 (Restrictions), 4 (Billing and Payment), 5 (Ownership), 7 (Confidentiality), 9 (Limitations of Liability), 10 (Indemnification), 11.3 (Effect of Termination), 12 (General) and 13 (Definitions), together with all other provisions of these Terms that may reasonably be interpreted or construed as surviving expiration or termination; but the nonuse and non-disclosure obligations of Section 7 (Confidentiality) will expire three (3) years following the expiration or termination of these Terms, except with respect to, and for as long as, any Confidential Information constitutes a trade secret.
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General.
12.1. Governing Law. These Terms will be governed and interpreted under the laws of the State of California, excluding its principles of conflict of laws. The Parties agree that any legal action or proceeding relating to these Terms will be instituted solely in the state and federal courts located in Santa Clara County, California. Each Party irrevocably submits to the jurisdiction of such courts, and each Party waives any objection that it may have to the laying of the venue of any such action or proceeding in the manner provided in this Section. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
12.2. Assignment. Neither Party may assign these Terms without the other Party’s prior written consent, except that a Party may assign these Terms upon written notice without such consent to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the assigning Party’s voting securities or assets. Non-permitted assignments are void. These Terms are binding upon, and inure to the benefit of, the Parties and their respective successors and assigns.
12.3. Entire Agreement. These Terms constitutes the entire agreement between the Parties relating to the subject matter hereof (including, with respect to the subject matter hereof, any non-disclosure, confidentiality, trial or evaluation agreement previously entered into between the Parties), and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. The terms in any business forms, purchase orders or quotes used by either Party will not amend or modify these Terms; any such documents are for administrative purposes only. In the event of any conflict between the terms of these Terms, the following order of precedence will apply (a) any amendment agreed upon by the Parties; (b) these Terms; and (c) Sales Order.
12.4. Export. Customer will not (a) permit any third party to access or use the Software or SaaS Service in violation of any U.S. law or regulation; or (b) export any Software provided by Teleport or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access the SaaS Service or use the Software in, or export such Software to, a country subject to a U.S. embargo. Customer certifies that it and its Users are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s list of Denied Persons.
12.5. Force Majeure. Neither Party will be liable to the other Party for any failure or delay in the performance of its obligations under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such Party, such as riot, natural disaster, pandemic, war, act of terrorism, blockade, labor dispute (not involving the Party claiming force majeure), embargo, civil or military authority, act of God, governmental action, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.6. Government Rights. As defined in FAR 2.101, the Software and Documentation, developed at private expense, are “commercial products” and according to DFARS §252.227 and 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. These Terms reflect (a) standard commercial practices for the acquisition of the Software and Documentation and (b) terms and conditions that Teleport customarily provides to its other customers. These Terms apply to Federal Customer’s use of the Software and Documentation as consistent with federal law and regulations. If these Terms conflict with federal law and regulations (see FAR 12.212(a)), those terms are deleted and unenforceable as applied to any Order Forms. If you are using the Software and Documentation on behalf of the U.S. Government and these Terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Software and Documentation.
12.7. No Third-Party Beneficiaries. There are no third party beneficiaries to these Terms.
12.8. Notices. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant administrator designated by Customer. All notices to Teleport must be sent to the following address 440 North Barranca Avenue, No. 8219 Covina, CA 91723; Attention Legal or [email protected].
12.9. Publicity. Unless otherwise specified in the applicable Sales Order, Teleport may use Customer’s name, logo, and marks to identify Customer as a Teleport customer on its website and other marketing materials.
12.10. Relationship of Parties. The Parties are independent contractors. These Terms will not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give either Party the express or implied right, power or authority to create any duty or obligation of the other Party.
12.11. Waiver and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any term or provision of these Terms is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of these Terms remain in effect.
12.12. Subcontracting. Teleport may use subcontractors and permit them to exercise the rights granted to Teleport in order to provide the Software and Services under these Terms, provided (a) Teleport will remain responsible for its subcontractors compliance with the terms of these Terms; and (b) Teleport will be responsible for any act or omission by such subcontractor to the same degree as if the act or omission were performed by Teleport.
12.13. Amendments. Teleport may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with Section 12.8 (Notices) or by posting the modified terms on the Teleport website. Unless otherwise specified by Teleport, changes become effective for Customer upon renewal of the then-current Subscription or purchase of a new Subscription after the updated version of these Terms goes into effect. Customer’s continued use of the Licensed Materials after the updated version of these Terms goes into effect will constitute Customer’s acceptance of such updated version of these Terms.
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Definitions.
13.1. “Affiliate” means, with respect to a Party, any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with such Party; where control (including "controlled by" and "under common control with") means ownership of fifty percent (50%) or more of the outstanding voting securities.
13.2. “Customer Data” means all information that is (a) processed or stored through the SaaS Service by Customer or on Customer’s behalf; and (b) Account Credentials.
13.3. “Customer’s Computing Environment” means the Customer computing environment in which Teleport authorizes use of the Subscription.
13.4. “Documentation” means the end user technical documentation created by Teleport and provided with the Software, available at the following URL: https://goteleport.com/docs/.
13.5. “Licensed Materials” means, collectively, the SaaS Service, Software, and Documentation that Teleport makes available as part of a Subscription.
13.6. “Product Previews” mean access to the Software or SaaS Service (or features) on an evaluation, free, trial, beta or early access basis.
13.7. “Professional Services” mean the implementation, consulting, training and/or other services described in the applicable Sales Order.
13.8. “Software” means the proprietary software identified in the applicable Sales Order that Teleport provides as part of a Subscription, including any patches, bug fixes, or corrections of the Software that Teleport provides as part of the Support Services.
13.9. “SaaS Service” means access and use of the Software, as deployed and hosted by Teleport in Teleport’s Computing Environment.
13.10. “Sales Order” means an order form, online order page(s), or other Teleport-approved ordering document or process that references these Terms and describes the Software, SaaS Service and/or Services that Customer is ordering from Teleport (or its reseller).
13.11. “Services” means, collectively, the Professional Services and Support Services.
13.12. “Subscription” means the Software subscription for a specific use capacity (e.g., number of Users, protocols, usage, etc.), whether deployed in Customer’s Computing Environment, and/or provided as a SaaS Service through Teleport’s Computing Environment.
13.13. “Subscription Term” means the period of the Subscription set forth in the applicable Sales Order.
13.14. “Support Services” means the technical support services for the Software as more fully described in the support terms. The level of support services will be specified in the applicable Sales Order.
13.15. “Teleport’s Computing Environment” means the computing infrastructure and systems used by Teleport to provide the Software via the SaaS Service.
13.16. “Usage Data” means data and data elements (other than Customer Data) collected by the Software or SaaS Service regarding the configuration, environment, usage, performance, vulnerabilities and security of the Software or SaaS Service that may be used to generate data, logs, statistics and reports regarding performance, availability, integrity and security of the Software or SaaS Service.
13.17 "User" means the agents, employees, contractors, and subcontractors of Customer or its Affiliates.