Last updated: July 9, 2020
Lightbend, Inc. (“we”, “us”, “company” or “our”) are pleased to offer certain web services (“Cloud Services”) to persons or entities (“you”, “your” or “Subscriber”) according to the terms and conditions in these Lightbend Cloud Terms of Service (“Agreement”). If you represent an organization, you represent and warrant that you are authorized to agree to this Agreement on behalf of your organization. If you do not agree to this Agreement, do not access or use the Cloud Services.
1. Cloud Services.
Subject to the terms and conditions of this Agreement, Subscriber may access and use the Cloud Services solely for Subscriber’s own use, and not for the use or benefit of any third party. Lightbend will use reasonable efforts to ensure that the Cloud Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Cloud Services will be interrupted for maintenance, upgrades and repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Lightbend to minimize such disruption where it is within Lightbend’s reasonable control. You agree that Lightbend will not be liable in any event to you or any other party for any suspension, modification, discontinuance or lack of availability of the Cloud Services or data. You will be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Cloud Services or otherwise use the Cloud Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. You will be responsible for ensuring that such equipment or ancillary services are compatible with the Cloud Services.
2. Registration and Your Account.
To register to use the Cloud Services, you must create a username and password and provide us with the information requested in the registration process and select the applicable subscription(s) (“Subscriptions”). You must provide complete and accurate information during the registration process and will update your information to ensure it remains accurate. You may not disclose your username, password or multi-factor authentication information to any unauthorized persons. You are responsible for all activities in your account, regardless of whether undertaken by you, your employees or a third party (including contractors or agents), and we and our affiliates are not responsible for unauthorized access to your account. You must contact us immediately if you believe unauthorized activity occurred in your account or your account information is lost or stolen.
(a) The subscriptions (“Subscriptions”) currently offered by Lightbend with respect to the Cloud Services are described at lightbend.com/lightbend-subscription. The Cloud Services may include features or services that have separate rules specific to the feature or service of the applicable Subscription. You will comply with all laws, rules and regulations applicable to the use of the Cloud Services and any additional feature or service you use. You understand and agree that we may change, suspend or discontinue any part or all of the Cloud Services. We will notify you of any material change to or discontinuation of the Cloud Services by email or via our website. Lightbend will provide support (“Support”) in accordance with the applicable support policy for your Subscription level, currently available at support.lightbend.com. We may modify our support policy from time to time.
(b) 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 we have 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, Subscriber may submit inquiries to Lightbend during the Subscription term and Lightbend will use reasonable efforts to respond.
5. Payment and Taxes.
(a) Services Fees. We calculate and bill fees and charges as described on the site specific to the Cloud Service you are using. For monthly charges, we may bill you more frequently for fees accrued if we believe there is a risk of non-payment or if we suspect that your account is fraudulent. If you choose monthly billing by credit card, you authorize a recurring monthly charge to your credit card based on our current fee schedule for the Cloud Services. You will pay us the applicable fees and charges for use of the Cloud Services as described on the applicable site using your credit card. All amounts payable for the Cloud Services will be made without setoff or deduction, and all amounts paid are non-refundable. We may increase or add new fees and charges for a Cloud Service by updating the applicable site. In the event that we change the pricing for the Cloud Services, the fees payable by you will increase or decrease in accordance with any such modification upon the date specified on the applicable site. We may charge you 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 you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6. Proprietary Rights and Licenses.
(a) Intellectual Property Rights. As between you and us, we or our licensors own and reserve 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, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the term of this Agreement: (i) access and use the Cloud Services solely in connection with your 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.
(c) Restrictions. Except as expressly authorized under this Agreement, Subscriber may not and may not permit others to:
(d) Subscriber Content. Subscriber shall retain ownership in all content you upload to the Cloud Services under your account (“Subscriber Content”), and you hereby grants and agrees to grant Lightbend and its personnel a non-exclusive, worldwide, royalty-free, non-transferable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content solely in order to provide the Cloud Services; however, Subscriber recognizes and agrees that caching of or references to the Subscriber Content may not be immediately removed upon termination. Subscriber warrants and represents that Subscriber has the right to grant Lightbend the rights set forth above and that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber 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, or (f) remains posted after Subscriber has been notified that such Subscriber Content violates any of sections (a) to (e) of this sentence. Subscribe will ensure that the Subscribe Content, and your use of it, complies with this Agreement and any applicable law. You are responsible for properly configuring and using the Cloud Services and taking your own steps to maintain appropriate security, protection and backup of your data. Subscriber 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 processing of any personally identifiable information of such data subjects via the Cloud Services by Lightbend and/or Subscriber. Subscriber will be responsible for ensuring that any processing of data via the Cloud Services does not violate any applicable laws or regulations. Subscriber will not process or submit to the Cloud Services any data that includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless it enters into a separate agreement with Lightbend 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. Lightbend may deactivate your account and all data upon the expiration or termination of your 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. You are not obligated to provide us with any suggestions or other feedback about the Cloud Services or otherwise, but if you do, we may use and modify this feedback without any restriction or payment.
7. No Warranty.
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, WE DISCLAIM 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.
8. Limitation of Liability.
We and our affiliates and licensors will not be liable for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use or data). We and our affiliates and licensors will not be responsible for any compensation, reimbursement or direct damages arising in connection with: (a) your inability to use the Cloud Services; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments by you in connection with this Agreement or your 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 your content or other data. Our and our affiliates’ and licensors’ aggregate liability under this agreement will be limited to the amount you actually pay us under this agreement for the Cloud Services that gave rise to the claim during the 12 months preceding the claim.
9. Indemnification. You will defend, indemnify, and hold harmless us, our 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) your use of the Cloud Services (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you; or (c) your data or the combination of your data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of intellectual property rights. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process seeking information related to your data or your use of the Cloud Services, you will also reimburse us for reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates. We will promptly notify you of any claim subject to this Section, but our failure to promptly notify you will only affect your obligations to the extent that our failure materially harms your ability to defend the claim.
10. Term and Termination.
(a) Term; Termination. The term of this Agreement commences when you create an account and will remain in effect until terminated in accordance with this Agreement. You may terminate this Agreement by terminating all Cloud Services under your account, and we may terminate this Agreement for any reason by providing you 30 days’ advance notice. We may also terminate your account and this Agreement, or suspend your access to the Cloud Services, immediately if: (i) we change the way we provide or discontinue any Cloud Service; (ii) you are late in payment or otherwise in breach of this Agreement; (iii) we reasonably determine that your use of the Cloud Services poses a risk to the Cloud Services; (iv) we reasonably determine that your use of the Cloud Services may be unlawful; or (v) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If we suspend your right to access or use any portion or all of the Cloud Services, you remain responsible for all fees and charges you have incurred during the suspension and you will not be entitled to any credit or refund. We will use commercially reasonable efforts to restore your access to the Cloud Services promptly following resolution of the cause of your suspension.
(b) Effect of Termination. Upon termination of this Agreement (i) all your rights under this Agreement immediately terminate; and (ii) you remain responsible for all fees and charges you have incurred up to and including the date of termination. We have no obligation to continue to store your data after termination or expiration of the applicable Subscription or this Agreement.
(a) General. We and you 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. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Our failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our 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 incorporates any data processing agreement or Business Associate Agreement and comprises the entire understanding between you and us 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 you 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. We may provide any notice to you 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 your account. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. To give us notice under this Agreement, you must (1) email us at email@example.com, or (2) send us your notice by certified mail, return receipt requested, to Lightbend, Inc., Attention: Legal Department, 625 Market Street, Suite 1000, San Francisco, CA 94105 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 non-exclusive. 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. We are not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our 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. We may amend this Agreement at any time by posting a revised version on the site for the applicable Cloud Service or by otherwise notifying you by email. Amended terms of service become effective upon posting on the site for the applicable Cloud Service or as stated in our email notice message. By continuing to use the Cloud Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended terms of service. Please check the site for the applicable Cloud Service regularly. We last amended this Agreement on the date listed at the beginning of this Agreement.