Updated January 10th, 2024
These are the terms by which you (the “Customer”) may use the Service (as defined below) provided by Svix Inc. (“Svix”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree ” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Service (these “Terms,” and collectively, the “Agreement”). Svix reserves the right to modify these terms and will provide notice of these changes as described below. If you are agreeing to these Terms on behalf of a Customer that is a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
“Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.
“Customer Inputs” means data, algorithms, methodologies, software code, and other information Customer provides, posts, uploads, publishes, transmits, or distributes on or through the Service.
“Customer Outputs” means data and other information generated by Customer that directly results from Customer’s use of, and is delivered to Customer through, the Service (excluding, for the avoidance of doubt, Usage Data).
“Effective Date” means the date on which Customer has agreed to these Terms and purchased access to the Services.
“Fees” means the amounts payable by Customer to Svix pursuant to this Agreement pursuant to Svix’s Pricing Page located at https://www.svix.com/pricing/ as of the Effective Date.
“Marks” means trade names, trademarks, service marks, trade dress, logos and other rights in indicia.
“Service” means Svix’s webhook service as made available to the Customer pursuant to the Agreement.
“Subscription Term” means the period beginning as of the Effective Date and continuing unless and until the termination of the Agreement pursuant to Section 5.
Provision of Service and Documentation.
Grant of Rights. During the Subscription Term and subject to the Terms, Svix will provide Customer access to and use of: (a) the Service solely for Customer’s internal use by the employees or contractors of Customer who Customer permits to use the Service (“Authorized Users”) and (b) the product documentation provided by Svix in connection with the Service (the “Documentation”) solely for Customer’s internal use in connection with Customer’s use of the Service.
Restrictions. Customer will not use the Service or Documentation for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or copy the Service or Documentation, in whole or in part, except as permitted hereunder; (b) use the Service or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, “frame,” resell, lease, loan or otherwise in any manner provide or distribute the Service or any copy thereof to any third party; (d) otherwise misappropriate any data or information from the Service or Documentation; (e) disrupt the functioning of the Service; (f) otherwise act in a manner that interferes with Svix’s operation of the Service or with the use of the Service by others; (g) gain any unauthorized access to the Service or Documentation for any other purpose or access or use the Service to circumvent or exceed usage limitations; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Service, Documentation, or any security technology, software, or rights management information contained within the Service or in any software used to enable the Service; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Service or Documentation; (j) use the Service or Documentation for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Service; (k) access or use the Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (l) exploit the Service in any unauthorized way whatsoever, including without limitation by trespass or burdening server or network capacity or Service infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Service infrastructure); (m) use the Service or Documentation in any manner, alone or in combination with any other role, supply process or other process, that may result in bodily injury, death, or damage to real or tangible property; or (n) attempt, or encourage or assist any third party to do, any of the foregoing.
Usage Data. Svix may collect, maintain, process and use, or Customer may provide to Svix, diagnostic, technical, usage and related information, including telemetry data and information about Customer’s searches, user behavior, computers, systems and software (“Usage Data”). Customer agrees that all Usage Data is owned solely and exclusively by Svix, and Svix accordingly may use such Usage Data to: (a) provide and maintain the Service for Customer; (b) develop and improve the Service; (c) monitor Customer’s usage of the Service; (d) for research and analytics and for Svix’s other business purposes, in each case in deidentified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service. Customer acknowledges and agrees that Svix may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Svix’s rights, including all intellectual property rights, in and to the Service.
Reservation of Rights. Svix reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service or Documentation.
Customer Responsibilities. Customer is responsible and liable for all uses of the Service and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including without limitation any Customer Inputs. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service and Documentation and will cause Authorized Users to comply with such provisions.
Third-Party Components. The Offerings may contain or be provided with certain third-party software modules and components that are subject to separate or additional terms and conditions, including without limitation Open Source Components as defined below (“Third-Party Components”). In addition, the Offerings may contain or be provided with certain software modules and components offered under the terms and conditions of “open source” software licenses (“Open Source Components”). Svix will provide Customer all notices and materials required for Svix’s compliance with the terms and conditions applicable to the Third-Party Components in the Documentation, within the Offerings, or through another method chosen by Svix in its reasonable discretion. With respect to any Open Source Components, all use of such Open Source Components by Customer is governed by, and subject to, the terms and conditions of the open source software license applicable to the Open Source Component and not this Agreement. With respect to any Third-Party Components that are not Open Source Components, to the extent any separate or additional terms and conditions apply, Svix will provide such terms and conditions to Customer and Customer’s use of such Third-Party Components is subject to such terms and conditions.
Service Levels and Support. Subject to the terms and conditions of this Agreement, Svix shall use commercially reasonable efforts to make the Service available in accordance with the service levels as set forth in Svix’s Pricing Page as of the Effective Date. The access rights granted hereunder entitle Customer to the support services as set forth in Svix’s Pricing Page as of the Effective Date.
Ownership and Data Rights.
Ownership. As between Svix and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Inputs and Customer Outputs; and (b) Svix owns all right, title and interest in and to the Service (and any enhancements and improvements developed, created, or otherwise made thereto), Documentation, and Usage Data, including but not limited to all intellectual property and other proprietary rights therein and thereto.
Customer License. Customer hereby grants to Svix during the Subscription Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to use the Customer Inputs as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Service to Customer) and for such other purposes as expressly set forth hereunder.
Customer Obligations. As between the parties hereto, Customer is solely responsible for all Customer Inputs and represents and warrants that Customer has all rights, licenses, and permissions required to provide Customer Inputs to the Service. Customer is solely responsible for all use of Customer Outputs and evaluating Customer Outputs for accuracy and appropriateness for their intended use case, including by utilizing human review as appropriate.
Fees; Payment.
Fees. Customer shall pay the Fees in accordance with Svix’s Pricing Page as of the Effective Date. Fees are non-refundable unless required by Applicable Laws. All amounts payable to Svix under this Agreement shall be paid by Customer to Svix in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Applicable Laws).
Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Svix harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder. If such failure to pay continues for ten (10) days following written notice thereof, Svix may: (a) withhold, suspend, or revoke its grants of rights hereunder; and/or (b) terminate this Agreement under Section 5.2.
Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Svix’s net income. If Svix has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Svix with a valid tax exemption certificate authorized by the appropriate taxing authority.
Fee Increases. Svix may, in its sole discretion, increase or otherwise modify the Fees by providing notice to Customer of such increase or modification (or applicable update to Svix’s Pricing Page at least sixty (60) calendar days prior to the effectiveness of such increase or modification.
Subscription Term and Termination.
Effective Date and Subscription Term. Unless earlier terminated in accordance with this Section 5, this Agreement and the rights granted hereunder shall be effective as of the Effective Date and shall continue through the Subscription Term. The Subscription Term shall continue unless and until a party elects to terminate the Agreement by providing the other party with written notice of its intention to terminate the Agreement, or the Agreement is otherwise earlier terminated pursuant to Section 5.2.
Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
Effect of Termination. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer will immediately terminate, and (b) Customer will: (i) immediately cease all use of and other activities with respect to the affected Service and Documentation; (ii) within five (5) days, return to Svix or, upon Svix’s request, destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, Svix’s Confidential Information and materials containing any Confidential Information of Svix; and (iii) deliver to Svix a certification, in writing signed by a duly authorized representative of Customer, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued; provided, however, that neither Customer nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination; and (c) all amounts payable by Customer to Svix of any kind are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement.
Survival. Sections 1, 2.2, 2.3, 2.4, 2.5, 3, 4, 5.3, 5.4, 6 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 7, 8, 9, 10.1 (solely with respect to claims arising during the Subscription Term), 10.2, 10.3, 10.4, 10.5, 10.6, 11, 12, and 13 shall survive termination of this Agreement.
Confidentiality.
Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Service, the Documentation, the Usage Data, and the Terms shall be Svix’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information, using at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
Remedy. Each party agrees and acknowledges that any breach or threatened breach of this Section 6 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
Privacy and Security.
Customer understands that by using Svix’s products and services, Customer agrees to Svix’s collection, use and disclosure of certain Customer information and other Customer Inputs in accordance with Applicable Laws and as set forth herein. Customer understands that Svix cannot guarantee that unauthorized third parties will never be able to defeat Svix’s security measures or use Customer information or other Customer Inputs for improper purposes. Customer acknowledges that it provides information and other Customer Inputs at its own risk and that Customer shall not provide any highly sensitive financial, health, or other information as Customer Inputs unless expressly agreed upon by the parties, and Svix hereby disclaims any and all liability with respect to any and all such information.
Customer may choose to or Svix may invite Customer to submit comments or ideas about Svix’s products and services, including without limitation the Service and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Svix under any fiduciary or other obligation, and that Svix is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Svix does not waive any rights to use similar or related ideas previously known to Svix, or developed by its employees, or obtained from sources other than Customer.
Representations and Warranties.
Performance Warranty; Sole and Exclusive Remedy. Subject to the limitations and conditions set forth In Section 9.2, Svix hereby represents and warrants to Customer that, during the Subscription Term, the functionality of the Service will not be materially decreased from the functionality of the Service available as of the Effective Date, when operated and used as recommended in the Documentation applicable to the particular Service and in accordance with this Agreement (the “Performance Warranty”). Subject to Section 2.7, Customer’s sole and exclusive remedy for Svix’s breach of its Performance Warranty will be for Customer to submit a support request and for Svix to respond to and resolve such request. The limited warranty set forth in this Section 9.1 will apply only if Customer, as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing). THE FOREGOING WARRANTY DOES NOT APPLY, AND SVIX STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY AND ALL THIRD-PARTY COMPONENTS PROVIDED WITH OR INCORPORATED INTO THE SERVICE.
Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 9.1 does not apply to problems arising out of or relating to: (a) Service that is modified or damaged by Customer or its representatives; (b) any operation or use of, or other activity relating to, the Service other than as specified in the Documentation applicable to the particular Service, including any incorporation in the Service of, or combination, operation or use of the Service in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation applicable to the particular Service; (c) the operation of, or access to, Customer’s or a third-party’s system or network; (d) any beta software, software that Svix makes available for testing or demonstration purposes, temporary software modules, or software for which Svix does not receive a fee; (e) Customer’s breach of any provision of this Agreement; or (f) a Force Majeure Event.
Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the Service and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access and/or use its Customer Inputs, including any personal information therein, and any other content it provides, receives, accesses and/or uses through or in connection with the Service or Documentation; (c) it is solely responsible for clearing all rights and paying all fees and other costs and expenses arising in connection with the Customer Inputs; and (d) the Customer Inputs and Svix’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including without limitation any intellectual property right or privacy right, (ii) any liability from Svix to any third party, or (iii) the payment by Svix of any fees to any third party.
Warranty Disclaimer.
General Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT: (A) SVIX, ON BEHALF OF ITSELF AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (B) THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND SVIX AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SERVICE.
Results of Use of the Service. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND SVIX’S PROVISION OF, THE SERVICE MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SERVICE IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS FINANCIAL, PROFESSIONAL, OR ANY OTHER ADVICE. ACCORDINGLY, SVIX HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES SVIX FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART ON ANY INFORMATION PROVIDED VIA THE SERVICE.
Indemnification.
Svix Indemnity. Svix shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third party to the extent based upon a claim that the Service infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Svix may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
Svix Options. Should the Service become, or in the opinion of Svix be likely to become, the subject of such an infringement claim, Svix may, at its option: (a) procure for Customer the right to use the Service at no cost to Customer; (b) replace or modify, in whole or in part, the Service to make it non-infringing; or (c) if neither (a) nor (b) are, in Svix’s sole and absolute discretion, commercially practicable, accept return of the Service, or remove the allegedly offending module thereof, and, refund the Fees paid for such Service or module by Customer, less an amount determined by multiplying the Fees paid for such Service or such module during the then-current Subscription Term by a fraction, the numerator of which is the number of months during the then-current Subscription Term during which Customer had use of the Service and the denominator of which is the total number of months during the then-current Subscription Term.
Exclusions from Svix Indemnity. Svix assumes no liability under this Section 10 for: (a) Third-Party Components or Open Source Components; (b) any Customer method or process in which the Service may be used; (c) any compliance with Customer’s specifications; (d) modification of the Service other than: (i) by Svix in connection with this Agreement or (ii) with Svix’s express written authorization and in strict accordance with Svix’s written specifications; (e) the combination, operation or use of the Service with non-Svix technology, service or data; (f) use of the Service after Svix’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third-party’s rights and provision of a non-infringing alternative; (g) negligence, abuse, misapplication, or misuse of the Service or Documentation by or on behalf of Customer, Customer’s representatives, or a third-party; (h) use of the Service or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement; or (i) claims for which Customer is obligated to indemnify Svix pursuant to Section 10.4, and Customer shall indemnify and hold harmless Svix and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (i) (inclusive) above.
Customer Indemnification. Customer shall defend, indemnify, and hold harmless Svix and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or relating to: (a) Customer Inputs; or (b) Customer’s or its Authorized Users’: (i) use of and access to the Service in a manner inconsistent with this Agreement and Documentation; (ii) breach of Section 2 or 9.3; or (iii) Customer’s negligence or willful misconduct.
Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
Sole Remedy for Infringement. THIS SECTION 10 SETS FORTH SVIX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SOFTWARE AND THIS AGREEMENT.
Limitation of Liability.
Liability Caps. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO SVIX HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 2 or 9.3; (b) either party’s breach of its confidentiality obligations under Section 6; (c) either party’s indemnification obligations under Section 10 (provided that in no event shall Svix’s liability in connection with such obligations exceed three times (3X) the amount paid or payable by Customer to Svix during the one (1) year period immediately prior to the event giving rise to the liability); and (d) the gross negligence or willful misconduct of either party or its agents.
Customer Acknowledgment. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
Compliance with Laws. Each party will comply with all Applicable Laws.
Miscellaneous.
Assignment. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 13.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 13.2 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within San Francisco, California. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by the American Arbitration Association (“AAA”), under the Expedited Procedures then in effect for AAA, except as provided herein. The arbitration will be conducted in San Francisco, California, unless otherwise agreed. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 13.3 shall be deemed as preventing either party from seeking injunctive, equitable or other relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
Publicity. Customer hereby grants to Svix during the Subscription Term and for six (6) months following the expiration or termination of the Subscription Term, a non-exclusive, royalty-free, non-sublicensable license to use Customer’s Marks in Svix’s advertising, literature and websites for the purpose of identifying Customer as a current or former Svix client. This license shall include the right to use quotes from Customer’s Authorized Users regarding their satisfaction with Svix and/or the Service.
Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to Svix must be sent to legal@svix.com.
U.S. Government Restricted Rights. If the Service is being used by the U.S. Government, the software underlying the Service is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
Export Law Assurances. Customer understands that the Service is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SERVICE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SERVICE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
Advice of Legal Counsel. Each party acknowledges and represents that, in entering this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person entering this Agreement on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the Terms, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Entire Agreement; Notification Procedures and Changes to the Terms; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Svix may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to Customer via email notice, written or hard copy notice, or through posting of such notice on Svix’s website, as determined by Svix in its sole discretion. Svix reserves the right to determine the form and means of providing notifications to Customer, provided that Customer may opt out of certain means of notification as described in this Agreement or as mutually agreed upon by Svix and Customer. Svix is not responsible for any automatic filtering Customer or Customer’s network provider may apply to email notifications Svix sends to the email address provided by Customer. Svix may, in its sole discretion, modify or update these Terms from time to time, and so Customer should review this page periodically. When Svix changes these Terms in a material manner, Svix will update the ‘last modified’ date at the top of this page and notify Customer that material changes have been made to these Terms. Customer’s continued use of the Service after any such change constitutes Customer’s acceptance of the new Terms of Service. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
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