Lightstep Terms of Free Use Agreement
IF YOU ARE ENTERING INTO THIS LIGHTSTEP TERMS OF FREE USE AGREEMENT (“AGREEMENT”) WITH LIGHTSTEP, INC., A SUBSIDIARY OF SERVICENOW, INC., (“LIGHTSTEP”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. THE TERMS “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY. THE “EFFECTIVE DATE” OF THIS AGREEMENT SHALL BE THE EARLIER OF YOUR USE OF THE LIGHTSTEP TECHNOLOGY OR ACCEPTANCE BY YOU VIA LIGHTSTEP’S ONLINE PORTAL REFERENCING THIS AGREEMENT. YOU AND LIGHTSTEP EACH SHALL BE REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”
1.1. “Confidential Information” means: (a) your User Data (which is your Confidential Information); (b) Lightstep Technology (which is Confidential Information of Lightstep); and (c) the Lightstep Technology URL address and any passwords for access to the Lightstep Technology. Confidential Information shall not include any information that: (i) is now, or subsequently becomes, generally available through no wrongful act or omission of recipient or its Representatives (defined below); (ii) was, before receipt from discloser, or becomes rightfully known to recipient without confidentiality restrictions through disclosure from a source other than discloser that does not owe a duty of confidentiality to discloser with respect to such Confidential Information; or (iii) is independently developed by recipient without using any Confidential Information of discloser.
1.2. “Lightstep Technology” means: (a) any Lightstep software as a service (SaaS) offering provided to you by Lightstep for a limited period of time for the purposes described herein; (b) any software licensed by Lightstep to you that is deployed on machines operated by or for you to facilitate the operation of a Lightstep software as a service (SaaS) offering and interoperation of such offering with other software, hardware or services; (c) Lightstep technology and methodologies (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation) existing as of the Effective Date; (d) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals; and (e) intellectual property anywhere in the world relating to the foregoing.
1.3. “User Data” means electronic data uploaded by or for you and your agents, employees, and contractors, and processed in the Lightstep Technology, excluding the Lightstep Technology.
2.1. Authorization. Subject to the terms of this Agreement, Lightstep grants to you a limited, personal, non-sublicensable, non-transferable, non-exclusive right and license for the duration of your usage of the Lightstep Technology under this Agreement to: (a) access and use the Lightstep Technology solely to internally evaluate the Lightstep Technology in a non-production environment with data containing no personally identifiable information; and (b) to the extent the Lightstep Technology includes downloadable software, to install and execute such software on machines operated by or for you solely to facilitate your authorized access to and use of Lightstep Technology. Software may include or be made available with code that is licensed under third-party license agreements. Lightstep may update or otherwise modify the Lightstep Technology in its sole discretion without notice to you. Lightstep shall have no obligation or liability for or with respect to Lightstep Technology, including without limitation: warranty, support, reliability, backup, loss of data, performance, service level (SLA), refund, or loss of use. To the extent you inadvertently share any personally identifiable information remaining in the Lightstep Technology, the terms of the data processing addendum (“DPA”) available at www.lightstep.com/data-processing-addendum shall apply to Lightstep’s Processing of Personal Data (as defined in the DPA).
2.2. Access Control. You may, at your option, provide access to the Lightstep Technology to one or more Affiliates, agents and contractors, subject to the terms, conditions and restrictions in this Agreement. To the extent such access is provided, you shall be wholly responsible under this Agreement for the acts and omissions of each Affiliate, agent and contractor as if they were you herein. No Affiliate, agent or contractor shall have the right to take any legal action against Lightstep under this Agreement. As used herein, “Affiliate” means any person or entity directly or indirectly Controlling, Controlled by or under common Control with you, where “Control” means the legal power to direct or cause the direction of the general management of the company, partnership or other legal entity.
2.3. Restrictions. You shall not (and shall not permit others to) do the following with respect to the Lightstep Technology: (a) use it for any production or external business purpose or otherwise use it to process personal data; (b) use it in excess of contractual limitations on usage or in a manner that circumvents the limitations on usage or the technological measures to control access; (c) license, sub- license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of it available for access by third parties except as expressly permitted in Section 2.2 above; (d) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Lightstep Technology; (e) disassemble, reverse engineer or decompile it; (f) copy, create derivative works based on or otherwise modify it except as permitted in this Agreement; (g) remove or modify a copyright or other proprietary rights notice in it; (h) use it to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (i) use it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or otherwise engage in a malicious act or disrupt its security, integrity or operation; or (j) access or disable any Lightstep or third-party data, software or network (other than your instance of the Lightstep Technology in accordance with this Agreement). Before you exercise any of the foregoing actions you believe you are entitled to, you shall provide Lightstep with thirty (30) days’ prior written notice to email@example.com (or, if applicable law or the relevant court order does not allow for such notice, then the maximum amount of notice allowable), and provide reasonably requested information to allow Lightstep to assess your claim and, at Lightstep’s sole discretion, provide alternatives that reduce adverse impacts on Lightstep’s intellectual property and other rights.
As between Lightstep and you, Lightstep and its licensors exclusively own all rights, title and interest in and to all intellectual property rights in the Lightstep Technology. Except as expressly provided in this Agreement, Lightstep reserves all rights in the Lightstep Technology and does not grant you any rights, express or implied or by estoppel. To the extent you provide Lightstep with any suggestions, ideas or other feedback regarding Lightstep products or services, you grant to Lightstep an irrevocable, perpetual worldwide license to all intellectual property rights (if any) to implement such feedback.
THE LIGHTSTEP TECHNOLOGY IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIGHTSTEP MAKES NO REPRESENTATION, WARRANTY OR GUARANTY, EXPRESS, STATUTORY OR IMPLIED, TO YOU AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY OR ACCURACY OF THE LIGHTSTEP TECHNOLOGY. LIGHTSTEP DOES NOT WARRANT ALL OR ANY PORTION OF THE LIGHTSTEP TECHNOLOGY IS ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE FOREGOING, AND TO THE FULLEST EXTENT PERMITTED BY LAW, LIGHTSTEP SPECIFICALLY DISCLAIMS ALL STATUTORY OR OTHER WARRANTIES INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
5.1. Confidentiality Obligations. The recipient of Confidential Information will: (a) hold discloser’s Confidential Information in confidence and not disclose such Confidential Information to any third party; (b) not use discloser’s Confidential Information for any purpose other than exercising the rights and performing the obligations under this Agreement; and (c) take reasonable precautions (at least equivalent to those recipient takes with respect to its own similar information) to prevent unauthorized disclosure or use of discloser’s Confidential Information and will maintain source code in strict confidence for as long as it is in recipient’s possession. Recipient may only disclose discloser’s Confidential Information to its own employees, consultants, affiliates and advisors who reasonably require it to carry out their function in connection with this Agreement and have agreed in writing to terms at least as protective as those set forth in this Agreement (“Representatives”). Recipient is responsible for any acts or omissions of its Representatives that, if taken by recipient, would constitute a breach of this Agreement.
5.2. Confidentiality Term. Regardless of any expiration or termination of this Agreement, recipient must meet its obligations with respect to Confidential Information under this Agreement for five (5) years after receipt of such Confidential Information (except for source code, which must be kept in confidence for perpetuity). Upon written request of the discloser, recipient will promptly return to discloser or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by recipient) Confidential Information of discloser.
5.3. Required Disclosures. Recipient may disclose discloser’s Confidential Information to the extent required by law or regulation provided recipient will (a) give discloser twenty (20) days’ notice (or such shorter period as is the maximum notice permitted under applicable law, unless prohibited by law) before making the disclosure; (b) provide reasonable assistance to the discloser in any lawful efforts by the discloser to resist or limit the disclosure of such Confidential Information; and (c) limit the scope of such disclosure to the minimum required by the law or regulation.
5.4. Remedies, Warranty, Ownership. The parties agree the recipient’s disclosure of Confidential Information except as provided herein may result in irreparable injury for which a remedy in money damages would be inadequate. The parties further agree in the event of such disclosure or threatened disclosure, (a) the discloser shall be entitled to seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to any other remedies available to the disclosing party at law or in equity, and (b) each party hereby acknowledges such an injunction is appropriate and warranted in such case. Unless specifically provided otherwise in this Agreement, remedies arising under this Agreement are cumulative and do not exclude any other remedies available at law or in equity. The discloser of Confidential Information warrants it has the right to disclose Confidential Information. EXCEPT AS STATED HEREIN, THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS, WITH ALL FAULTS” AND WITH NO OTHER WARRANTIES, EXPRESS OR IMPLIED. All Confidential Information disclosed under this Agreement will remain the property of discloser. No license or right under any intellectual property right is granted under this Agreement or by any disclosure of Confidential Information except as expressly stated in this Agreement.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR REVENUE OR LOSS OF USE OR DATA, COSTS OF COVER, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF LIGHTSTEP ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO ONE THOUSAND DOLLARS USD ($1,000.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. THIS SECTION 6 SHALL NOT APPLY TO YOUR OBLIGATIONS UNDER SECTIONS 3 (Intellectual Property), 5 (Confidential Information), 8.3 (Compliance with Laws) OR 8.4 (Export Compliance).
This Agreement commences on the Effective Date and continues until terminated (“Term”). Either party may terminate this Agreement for cause or convenience immediately upon written notice to the other party. Lightstep shall not be liable to you for any claims or damages of any kind arising out of termination of this Agreement as provided herein, including without limitation incidental or consequential damages and any compensation, reimbursement for the loss of prospective profits, anticipated sales or goodwill. However, termination shall not extinguish any liability of either party arising before termination of this Agreement. You shall cease access to any Lightstep Technology upon the date of termination. Sections 1 (Definitions), 3 (Intellectual Property), 5 (Confidential Information), 4 (Disclaimer), 6 (Limitations of Liability), 7 (Term) and 8 (General Provisions) shall survive termination of this Agreement.
8.1. Assignment. Neither party may assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party. Any attempted or purported assignment in violation of this Section 8.1 will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
8.2. Use of Aggregated Data. You agree Lightstep may collect, use and disclose quantitative data derived from the use of the Lightstep Technology for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify you or your users.
8.3. Compliance with Laws. Lightstep shall comply with any statutes and regulations that apply to its provision of the Lightstep Technology under this Agreement. You shall comply with all laws that apply to your use of the Lightstep Technology under this Agreement, including but not limited to those applicable to collection and processing of User Data in Lightstep systems through the Lightstep Technology. You agree to provide any required notifications to and obtain any required consents for the transfer of User Data to Lightstep. Lightstep shall not be responsible for compliance with any laws applicable to you and your industry that are not generally applicable to information technology service providers.
8.4. Export Compliance. Each party shall comply with United States and foreign export control laws and regulations. You acknowledge the Lightstep Technology is subject to the U.S. Export Administration Regulations (the “EAR”) and you shall comply with the EAR. Without limiting the foregoing, you represent and warrant: (a) you are not located in, and shall not use the Lightstep Technology from, any country subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan and Syria); (b) you shall not use the Lightstep Technology in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems; and (c) you are not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, you are responsible for complying with any local laws that may impact your right to import, export or use the Lightstep Technology.
8.5. U.S. Government Rights. All Lightstep software in the Lightstep Technology is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the services are acquired by or on behalf of a civilian agency, Lightstep provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the services are acquired by or on behalf of any agency within the DOD, Lightstep provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses Government rights in computer software or technical data.
8.6. Notices. Notices sent to you under this Agreement must be sent in writing to the address provided by you in a corresponding request form and printed at the bottom of this Agreement, or as updated by you in writing to Lightstep. Notices sent to Lightstep under this Agreement must be sent in writing to ServiceNow, Inc., 2225 Lawson Lane, Santa Clara, CA 95054, or as updated by Lightstep in writing to you.
8.7. Entirety. This Agreement is the final and entire agreement between the parties regarding the products and services provided hereunder and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations with respect to the subject matter hereof. The terms of this Agreement apply to the exclusion of any other terms you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. You acknowledge you have not relied on any statement, promise or representation made or given by or on behalf of Lightstep that is not set out in this Agreement. This Agreement may be executed using electronic which shall be deemed to be an original.
8.8. Waiver and Amendment. A waiver of any right is only effective if it is in writing and only against the party who signed such writing and for the circumstances given. Any modification of this Agreement must be in writing and signed by authorized representatives of both parties.
8.9. Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship. Neither party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other party.
8.10. Governing Law. This Agreement is governed by the laws of the State of California (excluding its conflict of law rules) and each party expressly consents (and waives any objection) to the nonexclusive venue and jurisdiction of the state courts of Santa Clara County, California and the federal courts located in the Northern District of California. The prevailing party in any claim or dispute between the parties under the Agreement shall be entitled to reimbursement of its reasonable attorneys’ fees and costs.