Last updated: [February 1, 2022]
Platform Services Agreement
THIS PLATFORM SERVICES AGREEMENT IS BETWEEN ASTREYA PARTNERS LLC AND CUSTOMER (AS DEFINED BELOW) AND APPLIES TO AND GOVERNS THE PROVISION OF ANY SERVICES RELATED TO THE XTERRA SOLUTIONS PRODUCT THAT ARE PROVIDED BY ASTREYA PARTNERS, LLC OR ITS AFFILIATES (COLLECTIVELY, “XTERRA SOLUTIONS”) AND THE USE OF SUCH SERVICES BY THE CUSTOMER AGREEING TO THESE TERMS (“CUSTOMER”), AS SUCH SERVICES ARE DESCRIBED ON AN ORDER FORM OR SIMILAR DOCUMENT AGREED TO IN WRITING BY XTERRA SOLUTIONS AND CUSTOMER (“ORDER FORM”) OR, IF THERE IS NO APPLICABLE ORDER FORM, AS SUCH SERVICES ARE DESCRIBED ON THE WEBSITE OR OTHER MEDIUM THROUGH WHICH SUCH SERVICES ARE PROVIDED TO CUSTOMER (THE “SERVICES”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES.
BY EXECUTING AN ORDER FORM, CLICKING “I AGREE” OR ON A SIMILAR PROMPT, OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR COMPANY YOU WORK FOR AS A CONTRACTOR, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S OR SUCH COMPANY’S BEHALF.
USE OF THE SERVICES GENERALLY
Customer’s use of the Services is subject to the terms of the Order Form (if applicable), the terms specified on the website or other medium via which the Services are made available to Customer (“Site Terms”), and the terms set forth below (“Terms,” and collectively, the Order Form, Site Terms, and Terms, “Agreement”), including any applicable fees, authorized user or location limitations, usage volume limitations, scope of access and use limitations, and other conditions provided therein. If there is a conflict or inconsistency between the Order Form, the Terms, and the Site Terms, the order of precedence shall be as follows: the Order Form, the Terms, and the Site Terms. Personnel of Customer that are permitted under an Order Form or otherwise under the terms of this Agreement to access and use the Services are “Authorized Users,” and such Authorized Users must use the Services solely in accordance with the terms provided in connection with any such authorization and otherwise in accordance with the terms of this Agreement.
Customer may allow its contractors that are Authorized Users to access the Services in compliance with the terms of this Agreement solely to use the Services on behalf of and for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
FEES AND PAYMENT
Customer agrees to pay the fees as specified on the Order Form (if applicable) or as otherwise specified on the Service. If no time period for payment is specified on an Order Form or on the Services, payment is due within 30 days after receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, value-added, and other similar taxes.
Xterra Solutions shall provide customer support for the Services under the terms of Xterra Solutions’s then-current Customer Support terms located at https://www.XterraSolutions.com/customer-support.
CERTAIN CUSTOMER RESPONSIBILITIES
Customer shall (i) provide complete and accurate registration information and other information requested by Xterra Solutions in connection with Customer’s use of the Services, (ii) provide its credentials and any related information necessary to enable Xterra Solutions to access and use on behalf of Customer any third-party solutions or data sources used by Customer and necessary for performance of the Services, (iii) provide all necessary Customer Data (as defined below) in a timely manner, (iv) keep its passwords related to the Services secure and confidential, (v) be solely responsible for Customer Data and all activity in its account in the Services; (vi) use reasonable efforts to prevent unauthorized access to its account, and notify Xterra Solutions promptly of any such unauthorized access, and (iv) use the Services, and ensure all Authorized Users use the Services, only in accordance with the Agreement and applicable law.
All data uploaded or provided by Customer or otherwise made available by Customer to Xterra Solutions for use in connection with the Services, whether directly or through a third-party solution or data source (“Customer Data”), shall, as between Xterra Solutions and Customer, remain the property of Customer. Customer grants Xterra Solutions the right to use and disclose the Customer Data for purposes of performing the Services and otherwise in accordance with this Agreement. With respect to Customer Data that contains any third party data, Customer represents and warrant that (i) it has the right to grant make such Customer Data available to Xterra Solutions and authorize Xterra Solutions to use such Customer Data as contemplated in this Agreement, and (ii) neither the delivery to nor use of such Customer Data as contemplated in this Agreement will violate or infringe the rights of any third party.
During the term of this Agreement, Customer may export its Customer Data present on the Services as allowed by functionality within the Services, provided that any Customer Data that was stored on a temporary basis will not be available for export purposes. Customer agrees that the Services are not and do not include a data-archiving or backup service and that Customer has sole responsibility for archiving and backing up the Customer Data and any other information outside of the Services.
Xterra Solutions may use during and after the term of the Agreement data derived from the Services that has been anonymized and aggregated (including aggregated statistical analysis) for purposes of providing the Services and related technical support, enhancing the Services, reporting on the performance and other characteristics of the Services, and other business purposes.
CONFIDENTIALITY AND SECURITY
“Confidential Information” means non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. Xterra Solutions Confidential Information includes the Services and all intellectual property and technology therein, its user interface design and layout, and all pricing information. Customer’s
Confidential Information includes the Customer Data.
The Recipient shall use the same degree of care that Recipient uses with respect to its own confidential information of a similar nature (but in no event less than reasonable care) to not disclose or use any Confidential Information of the Discloser for any purpose other than to perform its obligations or exercise its rights under the Agreement. The Recipient shall use commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of the Agreement.
Confidential Information excludes information that (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or order or a court or government agency.
Xterra Solutions shall (i) implement and maintain reasonable security measures, including technical, physical, administrative, and organizational controls, designed to maintain the confidentiality of such Confidential Information, (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, or intrusions and regularly otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures, and (iii) designate an employee or employees to coordinate implementation and maintenance of Xterra Solutions’s security measures.
XTERRA SOLUTIONS PROPERTY AND RESTRICTIONS
The software, workflow processes, user interface, designs, documentation, and other technologies contained in the Services or otherwise provided by Xterra Solutions as part of the Services are the proprietary property of Xterra Solutions and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain exclusively with Xterra Solutions. Any deliverables or other items developed by Xterra Solutions or jointly by the parties in connection with any implementation, integration or other services provided by Xterra Solutions to Customer in connection with the Services
shall be owned by Xterra Solutions, and Customer hereby assigns its rights in such items to Xterra Solutions. Customer may not remove or modify any proprietary marking or restrictive legends in the Services. Xterra Solutions reserves all rights unless expressly granted in this agreement.
Customer shall not (i) sell, resell, rent, or lease the Services or use the Services in a service provider capacity, (ii) use the Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Services, (iv) attempt to gain unauthorized access to the Services or its related systems or networks, (v) reverse engineer the Services, (vi) access the Services to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes, or (vii) permit any third party, or any employee or contractor that is not an Authorized User, to access or use the Services.
Subject to the warranty section below, Xterra Solutions may update, improve and otherwise modify the Services from time to time, including adding or removing certain functionality or features.
Xterra Solutions may modify these Terms from time to time and will use reasonable efforts to provide a notice of any modifications via the Services or by other means (e.g., email). By continuing to use the Service after these Terms have changed Customer agrees to the revised Terms.
THIRD PARTY SERVICES
The Services may contain links to or integrations with third-party data providers and services. Xterra Solutions shall have no responsibility for the performance, data or other materials provided by the applicable third-party providers.
TERM, TERMINATION AND SUSPENSION
The Agreement shall continue during the term of any Order Form or Services subscription unless otherwise terminated as set forth herein. If either party is in material breach of this Agreement, the other party may terminate this Agreement or any applicable Order Form if such breach is not cured within 30 days after written notice thereof.
Within 30 days after termination (other than termination for customer’s), upon request Xterra Solutions will make the Services available for Customer to export Customer Data. After such 30-day period, Xterra Solutions has no obligation to maintain the Customer Data and may destroy it.
Xterra Solutions may suspend the Services and remove applicable Customer Data if Xterra Solutions in good faith believes that Customer has violated the Agreement (including any payment obligation) or, as part of using the Services, Customer has violated any law. Xterra Solutions will attempt to contact Customer to notify it of any such suspension.
Xterra Solutions warrants to Customer that the functionality of the Services will not materially decrease during any paid term in a manner that materially adversely affects the Customer’s use of the Services and that the Customer Support will not materially degrade during any paid term.
EXCEPT AS PROVIDED IMMEDIATELY ABOVE, THE SERVICE IS PROVIDED ‘AS IS.’ XTERRA SOLUTIONS DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE XTERRA SOLUTIONS TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, XTERRA SOLUTIONS DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
TRIAL AND BETA SERVICES
If Customer has registered for a trial subscription to the Services, Customer may access the Services for the time period specified in the trial agreement between Customer and Xterra Solutions unless extended by Xterra Solutions in writing. If Customer has registered for a beta version of the Services, Customer may access the Services until the earlier of the time period specified in the beta agreement between Customer and Xterra Solutions (if any) or until Xterra Solutions terminates such beta access by notice to Customer.
ANY TRIAL OR BETA SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, CUSTOMER SUPPORT OR OTHER PERFORMANCE COMMITMENT OR OBLIGATION DURING ANY TRIAL OR BETA PERIOD. NOT ALL FEATURES OF ANY TRIAL OR BETA SERVICES MAY BE IMPLEMENTED IN ANY PAID OR COMMERCIAL VERSION OF THE SERVICES. ALL CUSTOMER DATA WILL BE DELETED WITHIN FIVE (5) DAYS AFTER THE TRIAL OR BETA PERIOD UNLESS OTHERWISE AGREED BY XTERRA SOLUTIONS AND CUSTOMER.
XTERRA SOLUTIONS IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, COSTS OF DELAY, LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION, AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF THE DAMAGE OR LOSS IS FORESEEABLE.
EXCEPT FOR XTERRA SOLUTIONS’S DEFENSE OF THIRD-PARTY CLAIM OBLIGATIONS SPECIFIED BELOW, XTERRA SOLUTIONS’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Xterra Solutions will defend or settle any third-party claim against Customer to the extent that such claim alleges that the Services as provided by Xterra Solutions violate a copyright, patent, or trademark of a third party (each, a “Claim”), provided that Customer promptly notifies Xterra Solutions of the claim in writing, cooperates with Xterra Solutions in the defense, and allows Xterra Solutions to solely control the defense or settlement of the Claim. Xterra Solutions will pay defense costs it incurs in defending any Claim, Xterra Solutions-negotiated settlement amounts, and court-awarded damages. If a Claim appears likely, then Xterra Solutions may modify the Services, procure the necessary rights, or replace the infringing Services with a functional equivalent. If Xterra Solutions determines that none of these are reasonably available, then Xterra Solutions may terminate the Services and refund any prepaid and unused fees. Xterra Solutions has no obligation for any claim arising from Xterra Solutions’s compliance with Customer’s specifications, a combination of the Services with other technology or aspects where the infringement would not occur but for the combination, use of Customer Data, or technology or aspects not provided by Xterra Solutions. This section contains Customer’s exclusive remedies and Xterra Solutions’ sole liability for intellectual property infringement claims.
GOVERNING LAW AND FORUM
This agreement is governed by the laws of the State of California, County of Santa Clara (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for the State of California and Customer submits to this personal jurisdiction and venue. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction.
The Agreement constitutes the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in the Agreement. No representation, promise, or inducement not included in the Agreement is binding. Customer may not assign or transfer the Agreement or any Order Form to a third party. If any term of the Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including force majeure events. Xterra Solutions rejects additional or conflicting terms of any Customer form-purchasing document. If Customer provides feedback or suggestions about the Services, Xterra Solutions may use such feedback without obligation to Customer.
Last updated: [February 1, 2022]