Terms of Service

Thank you for your interest in using the Stackdriver Application Management Service (the “Service”).  The following Terms of Service (“TOS”) constitute a valid and binding agreement (“Agreement”) between Stackdriver Inc., a Delaware corporation with principal offices at 5 Cambridge Center, 5th floor, Cambridge, MA 02155 (“Stackdriver”); and the end user listed in the corresponding registration for the Service (the “Customer” or “you” or “your”).  Please read these TOS carefully as they contain the legal terms and conditions that govern your use of, and access to, the Service (the “Terms of Service” or “TOS”). By establishing an Account (as defined below) or by using the Service you are agreeing to these TOS.

ARTICLE 1. SERVICE AND RESTRICTIONS

1.1 Service Plans. Stackdriver offers both free and “paid for” versions of the Service as well as a free limited time trial of its “Premium” Service Plan.  Not all features and services are available under all Service Plans and you may find more information about these Service Plans including features, capacities and pricing (as applicable) of each at www.stackdriver.com/pricing/.   These Terms of Service govern use of the Service under each Service Plan.  You may use the Service only in accordance with these Terms of Service and the use metrics under your Account’s (as defined below)Service Plan, including host and user limitations, and you agree not to attempt to circumvent such limitations.  If you exceed the use limitations under your Service Plan or if the amount of data collected in providing the Service to you significantly exceeds the average amount of data collected of other end users under such Service Plan, Stackdriver reserves the right to suspend your Account or limit your Service until you either upgrade your Service Plan or reduce your consumption.

1.2 Provision of Service. Subject to the terms and conditions of this Agreement and the Service Plan you selected, Stackdriver shall make the Service available to Customer solely for Customer’s internal business operations. Stackdriver may host the Service using its own infrastructure or it may engage a third party to host the Service, in whole or in part, on its behalf.   Customer shall provide Stackdriver with all information, assistance and materials required for Stackdriver to activate and operate the Service for Customer pursuant to this Agreement including any security codes or “read-only” files. Customer grants to Stackdriver a non-exclusive license to use, reproduce, display and distribute such information and materials in connection herewith.

1.3 Access and Transmission of Data. A high speed Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Service. Stackdriver assumes no responsibility for the reliability or performance of any connections as described in this Article. Customer understands that the technical processing and transmission of electronic communications is fundamentally necessary for its use of the Service and that that these communications may be transferred unencrypted over a network.  Stackdriver is not responsible for any electronic communications and/or Customer data, including any such communications or data that is Customer Confidential Information (as defined below in Article 4.1), which are delayed, lost, altered, intercepted or stored during the transmission of any electronic communications or data across networks not owned and/or operated by Stackdriver including, but not limited to, the Internet and Customer’s local network.

1.4 Security and Privacy Matters. Stackdriver is committed to protecting the security of Customer’s electronic communications and data. We use a variety of administrative, physical and technical safeguards and procedures to help protect your electronic communications and data from unauthorized access, use or disclosure.  For instance, in order to use the Service we require customers to first complete a registration to establish an Account (as defined below).  Further, access to each customer’s Account is restricted to Authorized Users (as defined below) of that customer.  To use the Service, Authorized Users must first enter both a user ID and password to log into a corresponding customer Account.  Despite these measures, Stackdriver cannot fully eliminate security risks associated with your electronic communications and data.

By using the Service Customer consents and agrees to Stackdriver’s collection, use, transmission and maintenance of certain information about Customer and Customer’s use of the Service for purposes of providing the Service to you. Information collected when you use the Service may include technical or diagnostic information related to your use that may also be used by Stackdriver to maintain, improve and enhance the Service.

1.5 Accounts. Customer must establish an account (“Account”) for Customer’s employees or independent contractors to use the Service on behalf of Customer (“Authorized Users”). Customer and all Authorized Users shall protect the confidentiality of all Account information, including user names and passwords. If the security of an Authorized User’s login information is breached, Customer shall immediately reset the Authorized User’s login information. Customer shall immediately notify Stackdriver in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement.  Customer shall be liable for any breach of this Agreement by an Authorized User.

1.6 Software License. All software that may be furnished to you in connection with the Service shall be provided subject to the terms of a separate end-user license agreement that shall accompany such software.

1.7 Restrictions. You shall only use the Service for your own internal use.  You will not transfer, sell, assign, rent, lease, distribute and/or make available through timesharing or through managed services the Service, in whole or in part.  You may not, and may not permit any Authorized Users or third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service or that is otherwise competitive with the Service; (iii) use the Service in violation of these TOS; (iv) use the service to violate any law or regulation; (v) remove, obscure or alter any copyright notice, logo, trademark, trade name or other proprietary rights notice contained within the Service; (vi) interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), any servers or networks connected to the Service or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon); or (vii) publish, post, upload or otherwise transmit to the Service Customer data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another. Except for the express rights granted herein, Stackdriver does not grant any other rights, whether express or implied, to services, software or other intellectual property.

ARTICLE 2. MODIFICATIONS; DISCONTINUATION OF SERVICE

2.1 To Terms of Service. Stackdriver reserves the right to update and change these TOS from time to time by posting an updated version of such TOS on its website at www.stackdriver.com/tos/ no later than thirty (30) days prior to the posted effective date of such update. If you continue to use or access the Service after the posted effective date, you hereby agree to the updated Terms of Service.

2.2 To the Service. Stackdriver reserves the right at any time to make modifications to the Service or Service Plans with or without notice. Unless Stackdriver provides otherwise, the then current Terms of Service shall also apply to your use of any modified or new version of the Service or Service Plan; or your use of any updates, upgrades, changes, enhancements or new features added to the Service, that may be made available by Stackdriver to Customer from time to time.  Stackdriver also reserves the right to discontinue offering the Service or any or all Service Plans upon thirty (30) days advance notice of such discontinuance by providing notice to you in accordance with Article 7.7 of this Agreement, or by posting such notice of discontinuance on the user login page of the Service itself or on its website at www.stackdriver.com/tos/.

2.3 To Prices. Prices under each of the Service Plans as well as the continued offering of any “free” Service Plan or Trial are subject to change at any time upon thirty (30) days advance notice from Stackdriver by providing notice to you in accordance with Article 7.7 of this Agreement, posting the updated prices on the user login page of the Service itself or by publishing an updated price list on its website at www.stackdriver.com/pricing/.  If you do not agree to such pricing change, you may cancel your Account during such 30-day period. By continuing to use the Service after the effective date of such pricing change, you hereby agree to such pricing change.

ARTICLE 3. FEES AND PAYMENT

3.1 Fees. As applicable, Customer shall pay Stackdriver for use of the Service in accordance with Stackdriver’s then current published rates and policies (available at www.stackdriver.com/pricing/ for the Service Plan selected by Customer, which are incorporated by reference into these Terms of Service. All fees are nonrefundable and due and payable in U.S. dollars

3.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes other than any taxes on Stackdriver’s income.  If Stackdriver has the legal obligation to pay or collect Taxes for which Customer is responsible under this Article, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Stackdriver with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.3 Late Payments. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law. Should Customer not pay amounts when due, Stackdriver may (at its discretion and in addition to other remedies it may have) suspend Customer’s access to the Service.

ARTICLE 4. CONFIDENTIAL INFORMATION AND IP RIGHTS

4.1 Confidential Information. You acknowledge that Stackdriver considers the Service to be proprietary information of Stackdriver, and agree not to disclose any Confidential Information about the Service without the prior written consent of Stackdriver.  For purposes of this Agreement, “Confidential Information” shall include, without limitation, Customer data; each party’s proprietary technology, financial information, customer information, business processes and technical product information; communications between the parties regarding the Service; and any information that is clearly identified in writing at the time of disclosure as confidential or is of such a nature, or has been disclosed in such a way, that it is obvious to the receiving party that it is confidential.  Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known publicly or becomes known publically without fault of the receiving party; (ii) is already known by the receiving party before disclosure to it by the other party and not subject to an obligation of confidentiality; (iii) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; (iv) is independently developed by the receiving party without any use of the confidential information; or (v) is aggregate or statistical data that does not contain any personally identifiable or Customer-specific information that is collected from the Customer in connection with Customer’s use of the Service.

Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement; (ii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a commercially reasonable degree of care in the protection of such Confidential Information); and (iv) to only make Confidential Information available to authorized persons only on a “need to know” basis.  Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Article will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.

The failure of the receiving party to comply with the provisions of this Article 4 would result in irreparable harm to the disclosing party and, therefore, that in addition to any other remedies that may be available to the disclosing party, the disclosing party shall have the right to an immediate injunction enjoining such breach.

4.2 Exclusive Ownership. You acknowledge and agree that any and all intellectual property rights, including but not limited to copyrights, trademarks, trade secrets and patents, as well as know how (collectively, “IP”) contained in or relating to the Service are and shall remain the exclusive property of Stackdriver and/or its licensors and nothing in this Agreement transfers any such IP Rights to you.

ARTICLE 5. TERM AND TERMINATION

5.1 Term. The term of this Agreement shall commence as of the date on which this Agreement is entered into by you establishing an Account or using the Service, and will remain in effect until terminated by either party as set forth below. During the term of this Agreement you will be billed for the Service under any paid for Service Plan until you terminate your Service Plan.

5.2 Termination. Stackdriver may terminate this Agreement at any time, with or without cause, by providing at least thirty (30) days prior written notice (the “Notice Period”) to you. Termination shall take effect upon the expiration of the Notice Period. In addition Stackdriver may terminate this Agreement on written notice (i) if your payment of any invoiced amount is overdue, and you do not pay the overdue amount within five (5) business days of Stackdriver’s notice, or (ii) if you breach any material terms of this Agreement; provided, however, for any such breach that is capable of being remedied, such termination shall not become effective if you remedy such breach within ten (10) days of Stackdriver’s notice.  You may terminate this Agreement and your Service Plan by going https://app.stackdriver.com/settings/cloud_accounts  Your termination shall be effective at month end regardless of the day of the month that you terminate and without refund of any amounts that had already been paid for such month.

5.3 Effects of Termination. Upon termination of this Agreement, you acknowledge and agree that all rights to use the Service shall terminate and you will no longer have access to any electronic communications and/or data that you published, posted, uploaded or otherwise transmitted to the Service.

ARTICLE 6. INDEMNIFICATION, DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES

6.1 Indemnification. You agree to defend, indemnify and hold Stackdriver, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (i) any data or electronic communications you submit, post, transmit, or otherwise make available through the Service; (ii) your, or an Authorized User’s, use (or misuse) of the Service; (iii) any violation by you of these TOS; (iv) Stackdriver’s use of the information and/or materials provided to Stackdriver by Customer under Article 1.1 above; or (v) your violation of any rights of another.

6.2 Warranties and Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN ARTICLE 6.4 (SERVICE LEVEL COMMITMENT), THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES AND STACKDRIVER DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SERVICE EITHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. STACKDRIVER FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR FREE. YOU ACKNOWLEDGE AND AGREE (I) THAT THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICE REMAINS WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW INCLUDING, WITHOUT LIMITATION, REGARDING ANY MATERIALS OR INFORMATION TRANSMITTED, ACCESSED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICE AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SERVERS, COMPUTERS OR OTHER DEVICES, OR LOSS OF ANY DATA THAT RESULTS FROM THE USE OF THE SERVICE TO TRANSMIT, ACCESS OR OBTAIN ANY SUCH MATERIALS OR INFORMATION; (II) THAT STACKDRIVER USES, OR MAY USE, THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RUN THE SERVICE AND THAT STACKDRIVER ALSO MAKES NO WARRANTIES WITH RESPECT TO SUCH THIRD PARTY MATERIALS AND THAT STACKDRIVER SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTY MATERIALS; AND (III) THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY ELECTRONIC COMMUNICATIONS OR DATA USED, CREATED, RECEIVED, OR TRANSMITTED IN CONNECTION WITH THE USE OF THE SERVICE.

6.3 Limitation of Liability. THE FOLLOWING LIMITATIONS DO NOT APPLY IN RESPECT OF LOSS RESULTING FROM (I) STACKDRIVER’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, OR (II) DEATH OR PERSONAL INJURY RESULTING FROM YOUR USE OF THE SERVICE.

EXCEPT FOR LIABILITY ARISING FROM ARTICLE 4.1 (CONFIDENTIAL INFORMATION), ARTICLE 6.1 (INDEMNIFICATION) OR ARTICLE 6.4 (SERVICE LEVEL COMMITMENT) , NEITHER PARTY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL BE LIABLE TO THE OTHER PARTY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE; (II) ANY CHANGES MADE TO THE SERVICE OR A SERVICE PLAN, OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR A SERVICE PLAN OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF ELECTRONIC COMMUNICATIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE ELECTRONIC COMMUNICATIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, STACKDRIVER’S LIABILITY TO YOU FOR DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) SHALL BE LIMITED TO THE AMOUNTS YOU PAID TO STACKDRIVER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

6.4 Service Level Commitment. If during any two consecutive monthly service periods you are not able to access the Service through the user interface made available to you by Stackdriver ninety-nine and eight tenths percent (99.8%) of the time for reasons solely attributable to Stackdriver and excluding any planned maintenance periods or events beyond Stackdriver’s reasonable control, then Stackdriver shall provide you access to the Service under your then current Service Plan at no charge for one (1) additional month.  Within five (5) business days following the end of any monthly service period, you may request the service level attainment for the previous month by email at inquiry@stackdriver.com. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF THE SERVICE TO ACHIEVE THIS SERVICE LEVEL COMMITMENT.

ARTICLE 7. GENERAL PROVISIONS

7.1 Survival. Articles 1.7, 3 (with respect to any unpaid and/or non-invoiced fees including for the Service during the Notice Period), 4, 5.3, 6.1, 6.2, 6.3 and 7 shall survive termination or expiration of this Agreement.

7.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between you and Stackdriver with respect to your use of the Service and supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. You may also be subject to additional terms and conditions that may apply if you use third-party content, services or software with the Service. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect. The failure of Stackdriver at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same.

7.3 Assignment. You agree not to assign this Agreement or any rights hereunder without Stackdriver’s prior written consent. Stackdriver may assign this Agreement or any rights hereunder to any third party, without giving prior notice in its sole discretion.

7.4 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

7.5 Export Control. Use of the Service (or software provided by Stackdriver to you in connection with the Service, if any) including transferring, posting or uploading data via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations.

7.6 Publicity. You agree that Stackdriver may publicly disclose that it is providing the Service to you and may use your name and logo to identify you as a customer in promotional and marketing materials, including press releases.

7.7 Notices and Contact. Stackdriver may provide you with any notices regarding the Service and/or these TOS including changes in Service Plans and prices, modifications to the Service, or the termination of the Service or these TOS by email to you at the address in your registration for the Service or by postings on its website and/or the Service.  You may provide notices to Stackdriver by email at inquiry@stackdriver.com.

In addition, our Privacy Policy located at www.stackdriver.com/privacy  is incorporated into and considered a part of these Terms of Service.

If you have any questions about the Service, Service Plans or these Terms of Service, please contact Stackdriver at inquiry@stackdriver.com.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN.  BY ESTABLISHING AN ACCOUNT AND/OR USING THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE FOREGOING TERMS AND CONDITIONS AND GRANT TO STACKDRIVER THE RIGHTS SET FORTH HEREIN.