Last updated: April 4, 2022
These Lightbend Terms of Service (“Agreement”) are entered into between Lightbend, Inc. (“Lightbend”) and the customer (“Customer”) purchasing the hosted services (“Cloud Services”). If you represent an organization, you represent and warrant that you are authorized to agree to this Agreement on behalf of Customer’s organization. If Customer does not agree to this Agreement, do not access or use the Cloud Services.
1. Subscriptions.
(a) Cloud Services. Subject to the terms and conditions of this Agreement, Customer may access and use the Cloud Services in accordance with this Agreement.
(b) Registration. To register to use the Cloud Services, Customer must create a username and password and provide Lightbend with the information requested in the registration process and select the applicable subscription(s) (“Subscriptions”). Customer must provide complete and accurate information during the registration process and will update Customer information to ensure it remains accurate. Customer may not disclose usernames, passwords, or multi-factor authentication information to any unauthorized persons. Customer is responsible for all activities in the Customer’s account, regardless of whether undertaken by Customer, Customer’s employees or a third party (including contractors or agents), and Lightbend and its affiliates are not responsible for unauthorized access to Customer’s account. Customer must contact Lightbend immediately if Customer thinks unauthorized activity occurred in Customer’s account or Customer’s account information is lost or stolen.
(c) Subscriptions. The Subscriptions currently offered by Lightbend are described at lightbend.com/lightbend-subscription. The Cloud Services may include features or services which have separate rules specific to the feature or service of the applicable Subscription. Customer will comply with all laws, rules, and regulations applicable to the use of the Cloud Services and any additional feature or service used. Customer understands and agrees that Lightbend may change, suspend or discontinue any part or all of the Cloud Services. Lightbend will notify Customer of any material change to or discontinuation of the Cloud Services by email or via Lightbend’s website.
(d) Evaluation and Pre-Production Subscriptions. Lightbend may provide access to the Cloud Services for a limited time solely for evaluation purposes. In addition, some Cloud Services may be in pre-production, testing, or beta phase for the purpose of evaluating performance, identifying defects and obtaining feedback and Lightbend has no obligation to release a final version of such offerings. Evaluation and pre-production Subscriptions are offered on an as-is basis with no Support. However, Customer may submit inquiries to Lightbend during the Subscription term and Lightbend will use reasonable efforts to respond.
(e) Support. Lightbend will provide support (“Support”) as described at https://downloads.lightbend.com/website/legal/lightbend-cloud-services-official-support-andmaintenance- policy.pdf. Lightbend may modify the support policy from time to time, however Lightbend will not modify it in a way that materially and adversely affects Support.
2. Payment and Taxes.
(a) Fees. Lightbend calculates and bills fees and charges as described on the site specific to the Cloud Service Customer is using. For monthly charges, Lightbend may bill Customer more frequently for fees accrued if Lightbend believes there is a risk of non-payment or if Lightbend suspects that Customer’s account is fraudulent. If Customer is paying monthly billing by credit card, Customer authorizes a recurring monthly charge to Customer’s credit card based on Lightbend’s current fee schedule for the Cloud Services. Customer will pay Lightbend the applicable fees and charges for use of the Cloud Services as described on the applicable site. All amounts payable for the Cloud Services will be made without setoff or deduction, and all amounts paid are non-refundable. Lightbend may increase or add new fees and charges for a Cloud Service by updating the applicable site. If Lightbend changes the pricing for the Cloud Services, the fees payable by Customer will increase or decrease in accordance with any such modification upon the date specified on the applicable site. Lightbend may charge Customer interest at the rate of 1% per month or the highest rate permitted by law on any late payment.
(b) Taxes. All fees and charges payable by Customer are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Customer will provide Lightbend any information Lightbend reasonably requests to determine whether Lightbend is obligated to collect VAT from Customer, including Customer’s VAT identification number. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing Lightbend with legally sufficient tax exemption certificates for each taxing jurisdiction. Lightbend will apply the tax exemption certificates to charges under Customer’s account occurring after the date Lightbend receives the tax exemption certificates. If any deduction or withholding is required by law, Customer will notify Lightbend and will pay Lightbend any additional amounts necessary to ensure that the net amount that Lightbend receives, after any deduction and withholding, equals the amount Lightbend would have received if no deduction or withholding had been required. Additionally, Customer will provide Lightbend with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
3. Proprietary Rights and Licenses.
(a) Intellectual Property Rights. As between Customer and Lightbend, Lightbend reserves all right, title, and interest in and to the Cloud Services, in whole and in part and all derivative works thereof.
(b) Cloud Services License. Subject to the terms and conditions of this Agreement, Lightbend grants Customer a limited, revocable, non-exclusive, non-sublicensable, nontransferrable license to do the following during the term of the applicable Subscription: (i) access and use the Cloud Services solely in connection with Customer’s Subscriptions and in accordance with this Agreement. The Cloud Services may contain open-source software components which are licensed under the terms of the applicable open-source software licenses and not this Agreement. (ii) Grant of a license for any BSL-licensed components or dependencies of components of the Cloud Service is made to Customer, for the term of the applicable Subscription to the Cloud Service, and only for use in connection with the Customer's use of the Cloud Service.
(c) Restrictions. Except as expressly authorized under this Agreement, Customer may not and may not permit others to: (i) access or use the Cloud Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (ii) resell or sublicense the Cloud Services; (iii) attempt to disable or circumvent any security mechanisms used by the Cloud Services; (iv) use the Cloud Services in a way that poses a risk to the availability, functionality or security of the Cloud Services; (v) use the Cloud Services to send unsolicited e-mails, bulk mail, spam or other materials to any other individual; (vi) use the Cloud Services to harass, threaten, stalk or abuse any person or party; (vii) use the Cloud Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including those are deemed threatening or obscene; or (viii) use the Cloud Services to engage in any kind of illegal activity.
(d) Customer Content. Customer is solely responsible for all content uploaded to the Cloud Services under Customer’s account (“Customer Content”). Customer is responsible for properly configuring and using the Cloud Services and taking steps to maintain appropriate security, protection and backup of Customer Content. Customer will provide all notices to, and obtain any consents from, any data subject as required by any applicable law or regulation in connection with the collection, processing and storage of Customer Content. Customer will be responsible for ensuring that any collection, processing and storage of Customer Data does not violate any applicable laws, regulation, or contract. Customer hereby grants and agrees to grant Lightbend and its affiliates and vendors a non-exclusive, worldwide, royalty-free, non-transferable right and license to use, copy, cache, publish, display, and store such Customer Content solely in order to provide the Cloud Services; however, Customer recognizes and agrees that caching of or references to the Customer Content may not be immediately removed upon termination. Customer warrants and represents that Customer has the right to grant Lightbend the rights set forth above and that it will not contribute any Customer Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Customer owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, (f) includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless it enters into a separate agreement with Supplier relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland or any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission of any crime or offense, or (g) remains posted after Customer has been notified that such Customer Content violates any of the terms of this Agreement or any law or regulation. Lightbend may deactivate Customer’s account and all data upon the expiration or termination of Customer’s applicable Subscriptions.
(e) No Other Rights. This Agreement does not transfer any right, title, or interest in any intellectual property to any party, except as expressly set forth in this Agreement. Customer is not obligated to provide Lightbend with any suggestions or other feedback about the Cloud Services or otherwise, but if Customer does, Lightbend may use and modify this feedback without any restriction or payment.
4. Data Protection.
The parties agree to comply with Lightbend’s data protection policy (“Privacy Policy”) set forth at lightbend.com/legal/privacy, as modified from time to time. Each party will use its best efforts to cause its agents and employees to be informed of and to agree to be bound by data privacy laws, rules, regulations, codes, policies, or procedures applicable to its business in its performance under this Agreement.
5. Warranty Disclaimer.
THE CLOUD SERVICES, SUBSCRIPTIONS AND SUPPORT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITH NO REPRESENTATION OR WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT PROHIBITED BY LAW, LIGHTBEND DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
6. Indemnification.
Customer will defend, indemnify, and hold harmless us, Lightbend’s affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any third party claim concerning: (a) Customer’s use of the Cloud Services (including any activities under Customer’s account and use by Customer’s employees and personnel); (b) breach of this Agreement or violation of applicable law by Customer; or (c) Customer’s data or the combination of Customer’s data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of intellectual property rights. If Lightbend or Lightbend’s affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process seeking information related to Customer’s data or Customer’s use of the Cloud Services, Customer will also reimburse Lightbend for reasonable legal fees, as well as Lightbend’s employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Lightbend’s then-current hourly rates. Lightbend will promptly notify Customer of any claim subject to this Section, but Lightbend’s failure to promptly notify Customer will only affect Customer’s obligations to the extent that Lightbend’s failure materially harms Customer’s ability to defend the claim.
7. Limitation of Liability.
Lightbend will not be liable for any indirect, incidental, special, consequential, or exemplary damages (including damages for loss of profits, goodwill, use or data). Lightbend will not be responsible for any compensation, reimbursement or direct damages arising in connection with: (a) Customer’s inability to use the Cloud Services; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments by Customer in connection with this Agreement or Customer’s use of or access to the Cloud Services; or (d) any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to store any of Customer’s content or other data. Lightbend’s aggregate liability under this Agreement will be limited to the amount Customer actually paid to Lightbend under this Agreement for the Cloud Services that gave rise to the claim during the 12 months preceding the claim.
8. Term and Termination.
(a) Term; Termination. The term of this Agreement commences when Customer creates an account and will remain in effect until terminated in accordance with this Agreement. Customer may terminate this Agreement by terminating all Cloud Services under Customer’s account, and Lightbend may terminate this Agreement for any reason by providing Customer 30 days’ advance notice. Lightbend may also terminate Customer’s account and this Agreement, or suspend Customer’s access to the Cloud Services, immediately if: (i) Lightbend changes the way Lightbend provides or discontinues any Cloud Service; (ii) Customer is late in payment or otherwise in breach of this Agreement; (iii) Lightbend reasonably determines that Customer’s use of the Cloud Services poses a risk to the Cloud Services; (iv) Lightbend reasonably determines that Customer’s use of the Cloud Services may be unlawful; or (v) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If Lightbend suspends Customer’s right to access or use any portion or all of the Cloud Services, Customer remains responsible for all fees and charges Customer has incurred during the suspension and Customer will not be entitled to any credit or refund. Lightbend will use commercially reasonable efforts to restore Customer’s access to the Cloud Services promptly following resolution of the cause of Customer’s suspension.
(b) Effect of Termination. Upon termination of this Agreement (i) all Customer’s rights under this Agreement immediately terminate; and (ii) Customer remains responsible for all fees and charges Customer has incurred up to and including the date of termination. Lightbend has no obligation to continue to store Customer’s data after termination or expiration of the applicable Subscription or this Agreement.
9. General Terms.
(a) General. Lightbend and Customer are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. Customer will not assign this Agreement, or delegate or sublicense any of Customer’s rights under this Agreement, without Lightbend’s prior written consent. Lightbend’s failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit Lightbend’s right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
(b) Entire Agreement. This Agreement comprises the entire understanding between Customer and Lightbend relating to the subject matter of this Agreement. Purchase orders are for the sole purpose of defining quantities and price and all other terms ae hereby rejected. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements or communications between Customer and us, whether written or verbal, regarding the subject matter of this Agreement.
(c) Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. Lightbend may provide any notice to Customer under this Agreement by posting a notice on the website for the applicable Cloud Service or sending a message to the email address associated with Customer’s account. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when we send the email, whether or not Customer actually receive the email. To give Lightbend notice under this Agreement, Customer must (a) email Lightbend at legal@lightbend.com, or (b) send Lightbend Customer’s notice by certified mail, return receipt requested, to Lightbend, Inc., Attention: Legal Department, 580 California St., San Francisco, CA 94104 USA.
(d) Choice of Law; Consent to Jurisdiction. The laws of the United States of America and the State of California govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of the federal or state courts located in San Francisco County, California, personal jurisdiction will be nonexclusive. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction.
(e) Force Majeure. Lightbend is not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Lightbend’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
(f) Amendments. Lightbend may amend this Agreement at any time by posting a revised version on the site for the applicable Cloud Service or by otherwise notifying Customer by email. Amended terms of service become effective upon posting on the site for the applicable Cloud Service or as stated in Lightbend’s email notice message. By continuing to use the Cloud Services after the effective date of any amendment to this Agreement, Customer agree to be bound by the amended terms of service. Please check the site for the applicable Cloud Service regularly. Lightbend last amended this Agreement on the date listed at the beginning of this Agreement.