By accessing or using the Thundra service offering (the “Service”), made available by Thundra, Inc. (“Thundra”), you (“Recipient”) and Thundra agree to the terms and conditions of this Thundra Master Services Agreement (the “Agreement”) which constitutes the entire agreement between Recipient and Thundra and governs Recipient’s access and use of the Service. If Recipient is entering into this Agreement on behalf of a company, or other legal entity (“Entity”), Recipient represents thatRecipient has the authority to bind such Entity to the terms and conditions of thisAgreement, and in such case the term “Recipient” shall refer to such Entity. If Recipient does not have such authority, or if Recipient does not agree with these terms and conditions, Recipient must not accept this Agreement and may not use the Service.RECIPIENT IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THISAGREEMENT BEFORE ACCESSING OR USING THE SERVICE. BY ACCESSING ORUSING SUCH SERVICE, RECIPIENT CONFIRMS THAT RECIPIENT HAS READ ANDAGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Service; License. Thundra will provide Recipient access to the Service for the Term(defined below) either through a no-cost plan (“Free Subscription”) or at a lite, standard, or enterprise plan (each, a “Paid Subscription”) (each of Free Subscription and Paid Subscription, a “Subscription”). During the Term, Thundra grants Recipient a limited, revocable, worldwide, nonexclusive, non-transferable, non-sublicensable license to use and access the Service via on-line software through the Internet solely for the purposes of observing and monitoring Recipient’s serverless infrastructure and in accordance with this Agreement Acceptable Uses (defined below) limitations imposed on the applicable Subscription. To that end, Thundra will make available to Recipient, and Recipient may download and install, standard and/or custom extensions (“Agents”), configurable by Recipient to control the types and scope of electronic data submitted to the Service and/or received by Recipient (“RecipientData”). Recipient grants Thundra a limited, revocable, worldwide, nonexclusive, non-transferable, non-sublicensable and subject to this Agreement, license to use and display all Recipient Data solely as necessary for Thundra to provide the Service to Recipient under this Agreement.
2. Acceptable Uses. Recipient shall utilize the Service within the Subscription parameters established at the time of purchase, or as modified as permitted herein, including the monthly invocation count, data retention, number of unique user login credentials (each a “User Account”), alerting, support mechanism, and the maximum permitted data volume per invocation (“Fair Uses”) (collectively, “Acceptable Uses”). In the event Recipient exceeds the Acceptable Uses levels, in whole or in part, Thundra may suspend Recipient’s access to the Service and require Recipient to move into the next higher Paid Subscription tier. Thundra may modify the Acceptable Uses attributable to each Subscription tier at any time upon written notice to Recipient, and such modifications will become effective with the immediately subsequent billing cycle. Recipient will not share a User Account with any other individual or entity, whether within or outside of Recipient’s organization, without Thundra’s prior written consent in each instance. Recipient is solely responsible for safeguarding the login credentials of its User Accounts. If Recipient wishes to move to a subsequent Subscription tier so as to reduce the Acceptable Uses limitations, Recipient may do so at any time through the Thundra Service or on the Thundra Service website by selecting the appropriate Subscription tier and paying the pro-rated fees for such new tier through the remainder of the Subscription Term (defined below). Such changes will take immediate effect. If Recipient wishes to move to a lower Subscription tier, the change to the applicable Acceptable Uses limitations and any applicable change in fee for such reduction will go into effect starting with the immediately subsequent billing cycle (for a User Account on a monthly billing cycle, this could be as soon as the following day; for a User Account on an annual billing cycle, this could be as long as several months).
3. Restrictions. Recipient shall not: (a) access or use the Service for the benefit of any third party; (b) decompile, disassemble, reverse engineer, otherwise attempt to extract the source code of, copy, modify or distribute any of the software or technology enabling or providing the Service; (c) delete or alter the copyright, trademark, or any other proprietary rights or other legal notices appearing in or on the Service; (d) access or use the Service for purposes of monitoring the availability, performance or functionality of the Service, or for any other benchmarking or competitive analysis purposes; or (e) use or view the Service for the purpose of creating a competitive product or service to the Service. The preceding restrictions apply for any use by Recipient of the Thundra Service regardless of the type of Subscription.
4. Recipient Obligations and Responsibilities. Recipient shall access and use the Service in accordance with this Agreement and applicable laws and regulations. Recipient shall be responsible for ensuring that those accessing the User Account comply with the terms and conditions of this Agreement. Recipient shall be responsible for all acts or omissions of those accessing its User Account. Recipient will comply with reasonable reporting requests made by Thundra in connection with Recipient’s use of the Service. Recipient shall provide additional reports and materials as may be reasonably requested by Thundra during the Subscription Term and any Renewal Term.
5. Term; Termination. This Agreement will begin on the date on which Recipient first accesses or uses the Service and will continue for the period of time indicated at Recipient’s sign-up on the Thundra Service website (“Subscription Term”). Thereafter, this Agreement will automatically renew for successive periods equal to the length of the Subscription Term (each, a “Renewal Term”, and the Subscription Term, together with the Renewal Term, the “Term”) unless either party gives notice to the other party of its intention not to renew at least thirty (30) days prior to the end of the then current Term. Either party may terminate this Agreement if the other party breaches a material term of this Agreement, including without limitation a party’s warranties under Section 9, herein, and such breach is not cured by the breaching party within thirty (30) days following receipt of written notice by the non-breaching party describing such breach. For the avoidance of doubt, neither party is permitted to terminate this Agreement for convenience. Upon any termination or expiration of this Agreement, Recipient shall immediately cease all use of the Service and Thundra will revoke all access to the Service. In the event of termination due solely to a breach by Thundra, Thundra shall refund to Recipient any prepaid fees for Service that would have been rendered after the termination date. Within thirty (30) days following the termination or expiration of the Agreement, Recipient may request, and Thundra will provide to Recipient in an industry-standard format, a copy of all Recipient Data. Thundra has no obligation to maintain Recipient Data and/or make Recipient Data available after such thirty (30) day period.
6. Ownership. Subject only to the limited rights to access and use the Service as expressly set forth herein, all rights, title and interest, including without limitation all related patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, in and to the (a) Service, (b) software, technology and other components of, or used to enable or provide, the Service, including without limitation the Agents, (c) any suggestions, enhancement requests, recommendations or other feedback (collectively, “Feedback”) provided to Thundra by Recipient, and any improvements or modifications made to the Service by Thundra as a result of such Feedback, and (d) reports and materials provided by Recipient in accordance with this Agreement, will remain with and belong exclusively to Thundra. Recipient owns all right, title, and interest in and to the Recipient Data. Thundra reserves all rights not expressly granted herein.
7. Fees and Payment. Recipient shall pay Thundra all fees for the applicable Subscription, at monthly or annual intervals, as set forth within the Thundra Service or at sign-up on the Thundra Service website. Recipients may, at any time, move from a Free Subscription to a Paid Subscription, or from a lower Subscription tier to a higher Subscription tier, by paying the fees due for the desired Subscription Term. All fees, unless otherwise stated, are payable in advance. Payment may be made on the Thundra Service website or within the Thundra Service by credit card, it being understood that submitted credit card information will be shared with Thundra’s third-party payment processor, for which Thundra has no control over nor liability. Any applicable processing fees will be the responsibility of Recipient. For any failure to pay undisputed fees when due (such failure to include without limitation the inability of Thundra’s third-party payment processor to successfully charge Recipient’s credit card), Thundra’s third-party payment processor will make attempts to charge Recipient’s credit card on file one (1) time per day for ten (10) consecutive business days. If Thundra’s third-party payment processor remains unsuccessful in charging Recipient’s credit card after such ten (10) business day period, then Thundra may, in its sole discretion, downgrade Recipient to a Free Subscription. Any such downgrade may result in increased volume limits and/or loss of Recipient Data. Thundra expressly disclaims any and all liability with respect to any losses suffered by Recipient as a result of such downgrade. All fees are exclusive of any applicable sales, use or excise taxes. Recipient agrees to pay any such taxes arising under this Agreement in a timely manner, other than those based on Thundra’s income. If Recipient is tax-exempt, Recipient shall provide to Thundra a tax exemption certificate. Recipient shall be responsible for any failure or delay in paying taxes due or if Recipient’s claimed exemption certificate is rejected. If Recipient is legally required to withhold tax from its payment of fees to Thundra, and/or to pay equalization taxes, Recipient agrees to gross up all fees that are subject to such tax, and shall not be entitled to reduce the fees payable to Thundra, such that the net payment received by Thundra is the full originally stated amount of such fees.
8. Confidentiality. Each party may disclose to the other party information that is considered proprietary and/or confidential and is not publicly available (“Confidential Information”). For the avoidance of doubt, Thundra Confidential Information includes and will include (i) the Service (including without limitation that it is being provided and administered by Thundra), (ii) the existence of this Agreement (including without limitation the identities of the parties hereto), (iii) the terms and conditions of this Agreement, (iv) all information disclosed by Thundra to Recipient under this Agreement, (v) the software and technology enabling and providing the Service, and (vi) the reports and materials provided by Recipient in accordance with this Agreement. The receiving party shall hold the disclosing party’s Confidential Information in the strictest confidence and shall not disclose such Confidential Information to any third party without the disclosing party’s prior written consent, except as may be necessary to comply with applicable laws, rules, regulations, or ordinances. The receiving party will not be subject to any confidentiality obligations under this Agreement with respect to any information that: (a) is publicly known or made generally available through no act or omission of the receiving party; or (b) is obtained by the receiving party from a third party without any obligations of confidentiality.
9. Warranties. Each party represents and warrants that it has the right and authority to enter into and perform its obligations under this Agreement and shall comply with all applicable laws. Thundra represents and warrants that, during the Term, the Thundra Service shall substantially conform in all material respects to this Agreement and any user guides expressly made available to Recipient by Thundra. Additionally, Thundra represents and warrants that Agents will transmit Recipient Data only as and to the extent configured by Recipient. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOLE AND EXCLUSIVE WARRANTIES ARE SET FORTH IN THIS SECTION, AND, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICE IS PROVIDED BY THUNDRA ‘AS-IS’ WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHEHTER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, OR THAT THE SERVICE WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE. NOTWITHSTANDING THE FOREGOING, THUNDRA MAKES NO WARRANTIES WHATSOEVER (INCLUDING THOSE FOUND IN THIS SECTION) DURING ANY TRIAL TERM.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) THUNDRA WILL NOT BE LIABLE TO RECIPIENT OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER TORT, NEGLIGENCE, BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, OR BUSINESS INTERUPTION, EVEN IF RECIPIENT HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR LOSS, and (B) IN NO EVENT WILL THUNDRA’S’S TOTAL LIABILITY TO RECIPIENT UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR THE TOTAL FEES PAID OR OWED BY RECIPIENT TO THUNDRA FOR THE THUNDRA SERVICE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
11. Indemnification. Thundra shall defend and indemnify Recipient against all liabilities, damages, losses, claims and expenses (including reasonable attorney’s fees) (collectively, “Losses”), incurred by Recipient that arise from a third party allegation that the Thundra Service (when used by Recipient as permitted hereunder, and excluding the Recipient Data) infringes or misappropriates a third party’s intellectual property right in the United States or that arise from a third party allegation of misuse and/or mishandling of Recipient Data by Thundra where such misuse and/or mishandling results solely from the Agents’ failure to conform to Recipient’s configurations thereto. If Recipient’s use of the Service is enjoined, or in Thundra’s reasonable opinion may be enjoined, then Thundra may, in its sole discretion, do one of the following: (a) procure for Recipient the right to continue using the Service; (b) modify the Service to make it non-infringing or replace the Service with a service that is functionally equivalent and non-infringing; or (c) terminate this Agreement and refund to Recipient all prepaid fees for Service that would have been rendered after the termination date. The provisions of this Section state Recipient’s sole and exclusive remedy and Thundra’s sole and exclusive obligations with respect to any third party infringement claims as described in this Section. The foregoing indemnity shall not apply during any Free Subscription; it shall only apply during a Paid Subscription. Additionally, Recipient shall defend and indemnify Thundra against all Losses incurred by Thundra that arise from a third party in connection with Recipient Data (except where the Losses arise solely to the Agents’ failure to conform to Recipient’s configurations thereto), or Recipient’s use of the Service in breach of this Agreement.
12. Equitable Relief. Recipient acknowledges that a breach by Recipient of any confidentiality or proprietary rights provisions of this Agreement may cause Thundra irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Thundra may institute an action to enjoin Recipient from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Thundra may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which Thundra may be entitled at law or in equity.
13. Notices. All notices required under this Agreement shall be given by a reputable overnight delivery service (charges prepaid) or by certified United States mail, postage prepaid return receipt requested, and addressed (a) if to Thundra: Thundra, Inc., 1 Marina Park Drive STE 1100, Boston, MA, or (b) if to Recipient: the address Recipient lists on the Thundra website or within the Service. All written notices so given shall be deemed effective upon receipt.
14. Export Restrictions. The Thundra service is subject to export restrictions by the United States government and import restrictions by certain foreign governments, and Recipient agrees to comply with all applicable export and import laws and regulations in Recipient’s use of Thundra. Recipient shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Thundra service: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Recipient represents and warrants that (i) it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; and (ii) that no Recipient Data is controlled under the US International Traffic in Arms Regulations. The Thundra service is restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
15. Miscellaneous Provisions. This Agreement shall be governed by the laws of the State of Delaware, excluding its conflict of laws provisions. The parties irrevocably consent to the state and federal courts serving Delaware with respect to any dispute arising under this Agreement. Recipient may not assign or transfer this Agreement without the prior written consent of Thundra, and any purported assignment made without the required consent will be null and void. Thundra may assign this Agreement to: (a) an affiliate, or (b) in connection with a merger or sale of all or substantially all of Thundra’s assets thereto, upon notice, but without the prior written consent, of Recipient. If any provision of this Agreement is held to be invalid, the remaining provisions will remain fully enforceable. This Agreement constitutes the entire agreement between the parties and supersedes all other prior written or oral agreements.
16. Survival. Any Sections which by their nature when taken as a whole would reasonably be intended to survive, will survive termination or expiration of this Agreement
17. Modifications to this Agreement. The terms and conditions of this Agreement may be revised by Thundra from time to time and Recipient’s continued access and use of the Service will constitute Recipient’s agreement to the latest version of this Agreement. It is Recipient’s responsibility to access the Thundra Service website to determine the latest version of this Agreement. By continuing to use the Service, Recipient will be deemed to have accepted such new terms and conditions.