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DataPelago, Inc. 100 View Street, Suite 102, Mountain View, CA 94041
These Standard Terms govern your access to and use of the DataPelago Services. These Standard Terms are by and between DataPelago Inc., a Delaware corporation ("DataPelago"), and your organization or other legal entity (“you" or “your”) on whose behalf you are entering these Standard Terms. Capitalized terms not otherwise defined herein are described in Section 16 “Definitions”.
You may use the Services to support Your Data in your customer-owned infrastructure, which is managed entirely by you (each instance a “Cluster”). You create and configure a Cluster using cloud resources in your account to process and store data in object storage and other integrated services that you control.
Subject to and conditioned on your payment of applicable fees and compliance with these Standard Terms and the applicable Order, DataPelago hereby grants to you and your Authorized Users, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services for your internal business purposes. All rights not expressly granted to you are reserved by DataPelago. You must maintain all hardware, software, and network connectivity needed to connect to the Services. All use of the Services by your Authorized Users must comply with these Standard Terms. DataPelago shall collect Usage Data to monitor consumption of the Services, ensure compliance with these Standard Terms and the applicable Order, and to support billing and account management functions.
In addition to any other limitations set forth in these Standard Terms and any Order, you agree not to (i) copy, download, modify or translate any software and/or database hosted as part of the Services in any manner not authorized by these Standard Terms; (ii) reverse engineer, decompile, or disassemble any software and/or database hosted as part of the Services, or otherwise attempt to discover the underlying source code of the Services; (iii) tamper with, bypass or alter the security features of the Services or any of the hosted infrastructure; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Services or any features or functionality of the Services to any person or entity other than your Authorized Users; (v) use the Services in violation of any applicable law, regulation, or rule; (vi) interfere with the DataPelago’s collection of Usage Data, or manipulate Usage Data; (vii) use the Services for any illegal, obscene, threatening, fraudulent, corrupt, deceptive or similarly objectionable activities; (viii) use the Services or its contents for purposes of competitive analysis or the development of a competing product or service; (ix) cause harm to or violate the rights of any person, including without limitation privacy or intellectual property process; or (x) store, or transmit Your Data, Support Data, or any other data or content in violation of any law or any third-party rights.
4.1 Support Services. The access rights granted hereunder entitle you to the Support Services. You acknowledge and agree that DataPelago may use Support Data to the extent necessary to provide the Services to you and as otherwise set forth in these Standard Terms. By submitting or transmitting Support Data, you represent and warrant that you are the owner of, and/or have all necessary right and permissions to Support Data to permit DataPelago to use the same in accordance with these Standard Terms without violating the rights of any third party. Unless otherwise expressly agreed by DataPelago, you agree that (i) Support Data shall not include any Sensitive Data; and (ii) DataPelago will have no liability under these Standard Terms relating to Sensitive Data.
4.2 Professional Services. DataPelago may agree to provide Professional Services to you as set forth in an Order, subject to these Standard Terms. You agree that you may not publish any Deliverable or provide any Deliverable to any third party other than your employees, contractors, and advisors, except as specifically permitted in an Order.
4.3 Free Services. DataPelago may make Services available to you specifying that the Services are provided free of charge, on a trial basis, and/or to be used at your own risk (“Free Services”). Notwithstanding any other provision of these Standard Terms, you acknowledge and agree that: (i) Free Services are made available without any support, maintenance, warranty, commitment to availability, security, or accuracy, or other related obligation of any kind under these Standard Terms, unless otherwise required by applicable law; (ii) Free Services may not include or allow access to all features and functionality available to paying customers; (iii) DataPelago may terminate the use of a Free Services at any time, unless otherwise specified in writing, and DataPelago will not be liable for such termination; (iv) data, information, and content submitted to Free Services may be permanently lost, and DataPelago will not be liable for such loss; and (v) Free Services may not be used for any purpose other than to evaluate whether to purchase the Services.
4.4 Additional Terms. Additional terms and conditions (the “Additional Terms”) may apply to specific products, services or features made available by DataPelago on or through the Services. Additional Terms (as applicable) are hereby incorporated by this reference into these Standard Terms. In the event of a conflict between any Additional Terms and these Standard Terms, the Additional Terms shall prevail.
5.1 Fees. Fees for the DataPelago Services are payable as set forth in the applicable Order Form (“Fees”). Unless otherwise noted on your Order Form, Services will be invoiced in advance of providing the Services and Professional Service will be invoiced on a time and materials basis monthly in arrears. DataPelago may increase the Fees for any renewal term by providing you with notice of the impending increase in fees not less than forty-five (45) days prior to the commencement of such renewal term and the resulting increase in fees. Unless otherwise stated in your Order Form, all fees are non-refundable and non-cancellable.
5.2 Invoices. Invoices are due within thirty (30) days of receipt of the applicable invoice. If you dispute any charges, you must provide written notice to DataPelago within thirty (30) days of the invoice date with a detailed explanation of the dispute. DataPelago may suspend the DataPelago Services or terminate these Standard Terms for non-payment by you, as set forth in Section 6. You will pay a late fee equal to one-and-one-half percent (1.5%) per month or the maximum amount allowed by law, if less, on all past due amounts. You are also liable for all costs of collection incurred by DataPelago for past due sums, including without limitation, collection agency fees, reasonable attorneys’ fees, and court costs.
5.3 Taxes and Other Charges. All amounts payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You shall be responsible for and shall pay all such taxes and indemnify DataPelago from any liability thereon, provided that, in no event shall you be responsible for any state or federal income taxes imposed on DataPelago’s income. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing DataPelago with legally sufficient tax exemption certificates for each taxing jurisdiction. If any deduction or withholding is required by law, you will notify DataPelago and will pay DataPelago any additional amounts necessary to ensure that the net amount of payment that DataPelago receives, after any deduction and withholding, equals the amount of payment DataPelago would have received if no deduction or withholding had been required.
6.1 Term. Unless otherwise specified in the Order, the initial term of these Standard Terms will begin on the effective date of your Order and shall continue for the duration listed in the Order (the “Initial Term”), and thereafter shall automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least thirty (30) days prior to expiration of the then-current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”). If the length of the Initial Term is not listed in the Order, it will be one (1) year from the Effective Date of the Order.
6.2 Termination for Breach. Either you or DataPelago may terminate an Order or these Standard Terms, effective on written notice to the other party, if the other party materially breaches these Standard Terms or an Order, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
6.3 Termination or Suspension by DataPelago. DataPelago may, at its option, terminate these Standard Terms for cause, or suspend access to the DataPelago Services if: (i) DataPelago reasonably believes that the Services are being used in violation of law or the terms of these Standard Terms; (ii) your use of the Services interferes with the normal operations of the Services or other customers’ use of the same; (iii) there is an attack on the Services or there is another event for which DataPelago reasonably believes suspension of the Services is necessary to protect the DataPelago network or DataPelago's other customers; (iv) your payment of any invoiced amount is overdue and you fail to pay the overdue amount within ten (10) days of DataPelago's written notice; (v) you breach any obligation relating to DataPelago's (or its suppliers’) intellectual property rights; or (vi) you become bankrupt, insolvent, have a receiver appointed for any portion of your business, liquidate, cease to do business, or make a general assignment for the benefit of creditors. DataPelago will endeavor to give you advance notice of pending suspension or termination, unless DataPelago determines, in DataPelago's reasonable commercial judgment, that an immediate suspension is necessary to protect DataPelago, its customers, or others.
6.4 Effect of Termination. Upon termination of these Standard Terms: (i) you will cease using the DataPelago Services; and (ii) each party shall return or destroy all Confidential Information in accordance with Section 7, provided that Confidential Information may continue to exist elsewhere on our system where (i) immediate deletion is not possible due to technical limitations (i.e. backup systems); or (ii) where immediate deletion would restrict our ability to investigate violations of these Standard Terms or illegal activity, comply with applicable law or a request by a law enforcement or judicial authority. Termination of these Standard Terms will not relieve a party from any accrued payment obligations. DataPelago will not be liable to you for any claims or damages of any kind arising out of termination of these Standard Terms or suspension of DataPelago Services in accordance with this Section 6.
Each party, as a recipient (“Recipient”), agrees to use the disclosing party’s (“Discloser”) Confidential Information solely for the purposes of performing its obligations or exercising its rights under these Standard Terms. Recipient will not disclose Discloser’s Confidential Information to any third party other than its Authorized Recipients. Recipient shall use commercially reasonable standards to protect the Confidential Information from disclosure using equal measures as it uses to protect its own Confidential Information of a similar nature. The obligations set forth in this Section 7 shall survive until three (3) years from the termination or expiration of these Standard Terms except with regard to trade secret information which shall be protected for the statutory period. Except as otherwise set forth in these Standard Terms each party shall use commercially reasonable efforts to return and/or destroy all Confidential Information in accordance with this Section 7. Notwithstanding, Recipient will not be obligated to render unrecoverable Confidential Information of the Discloser that is contained in an archived computer system backup. Any such retained Confidential Information will remain subject to this Section 7.
The Services are owned by DataPelago (and its licensors) and are protected by applicable intellectual property laws and regulations, including United States and international copyright laws. As between the parties hereto, DataPelago retains all right, title, and interest in and to the DataPelago Services and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the DataPelago Services. Nothing herein shall operate to transfer or convey to you any rights in any DataPelago Services and/or software hosted as part of the Services. You agree to promptly notify DataPelago if you become aware of, or suspect any unauthorized, access, use or misuse of the DataPelago Services. Similarly, you retain all right, title and interest in and to Your Data. To the extent you provide DataPelago with any feedback, best practices, templates, systems, ideas, or technical improvement suggestions about the DataPelago Services (“Feedback”), you acknowledge and agree that DataPelago will be the owner of all such Feedback and may use and incorporate the Feedback into the DataPelago Services without compensation or attribution to you. DataPelago may monitor your use of the Services and collect and compile Usage Data. As between DataPelago and you, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by DataPelago. You acknowledge that DataPelago may compile Usage Data based on Your Data input into the Services. You agree that DataPelago may use Usage Data to the extent and in the manner permitted under applicable law; provided that such Usage Data does not identify you or your Confidential Information.
9.1 Warranties. Each party warrants that it is validly entering into these Standard Terms and the applicable Order, and has the legal authority to do so. DataPelago warrants that: (1) during the term of any Order for the applicable DataPelago Services: (a) the Services will function substantially in accordance with the Documentation; and (b) DataPelago will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Services; and (2) Professional Services will be provided in a workmanlike manner consistent with industry standards. For Professional Services, this warranty will not apply unless you provide written notice of a claim within sixty (60) days from performance of the deficient Professional Services.
9.2 Disclaimer of Warranties. THE WARRANTIES PROVIDED BY DATAPELAGO IN SECTION 9.1 (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING DATAPELAGO, DATAPELAGO SERVICES, AND/OR DELIVERABLES PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITHOUT LIMITING THE FOREGOING, DATAPELAGO SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. DATAPELAGO DOES NOT REPRESENT THAT THE DATAPELAGO SERVICES WILL BE COMPLETELY SECURE OR WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF, OR ACCESS TO, THE DATAPELAGO SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE DATAPELAGO SERVICES WILL BE CORRECTED. DATAPELAGO MAKES NO WARRANTY THAT (I) THE DATAPELAGO SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (II) THAT YOU WILL OBTAIN ANY SPECIFIC RESULTS OR PERFORMANCE. DATAPELAGO IS NOT RESPONSIBLE FOR ANY RESULTS THAT YOU MAY OBTAIN THROUGH THE DATAPELAGO SERVICES OR DELIVERABLES OR FOR ANY CONCLUSIONS DRAWN FROM SUCH USE.
9.3 Warranty Remedy. FOR ANY BREACH OF THE WARRANTIES RELATED TO THE SERVICES OR PROFESSIONAL SERVICES PROVIDED BY DATAPELAGO IN SECTION 9.1 (WARRANTIES), YOUR EXCLUSIVE REMEDY AND DATAPELAGO’ ENTIRE LIABILITY WILL BE: (1) FOR SERVICES, THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, (2) FOR PROFESSIONAL SERVICES, THE RE-PERFORMANCE OF THE DEFICIENT SERVICES, OR, (3) IF DATAPELAGO CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, DATAPELAGO WILL END THE DEFICIENT SERVICES AND REFUND TO YOU THE PORTION OF ANY PREPAID FEES PAID BY YOU TO DATAPELAGO APPLICABLE TO THE PERIOD FOLLOWING (A) THE EFFECTIVE DATE OF TERMINATION (FOR SERVICES) OR (B) THE COMMENCEMENT OF THE DEFICIENCY (FOR PROFESSIONAL SERVICES).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST CONTENT, RELATING TO THE DATAPELAGO SERVICES OR THE PROVISION OR FAILURE TO PROVIDE THE DATAPELAGO SERVICES OR SUPPORT THEREFOR, WHETHER OR NOT DUE TO A PARTY’S NEGLIGENCE.
DATAPELAGO’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING UNDER THESE STANDARD TERMS OR RELATED TO THE DATAPELAGO SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR ACCESS TO THE DATAPELAGO SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD BEFORE THE CLAIM AROSE. THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTHING IN THIS SECTION 10 WILL LIMIT EITHER PARTY’S LIABILITY FOR EXCLUDED CLAIMS. “EXCLUDED CLAIMS” MEANS CLAIMS ARISING FROM (A) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY, ITS EMPLOYEES OR AGENTS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) A PARTY’S PAYMENT OBLIGATIONS UNDER THESE STANDARD TERMS OR ANY ORDER; (D) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11; OR (E) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS.
NOTWITHSTANDING ANYTHING IN THIS SECTION 10 TO THE CONTRARY AND SO FAR AS PERMITTED BY LAW, DATAPELAGO’S LIABILITY RELATING TO FREE SERVICES WILL BE LIMITED TO FIVE THOUSAND US DOLLARS (USD $5,000).
11.1 By DataPelago. DataPelago will indemnify, defend and hold you and your Authorized Users harmless against any losses, damages, expenses or liabilities arising from claims that your use of the DataPelago Services infringes or misappropriates the intellectual property rights of a third party; provided that, DataPelago shall not be required to indemnify you to the extent that the claim was caused by Your Data, your use of the DataPelago Services in violation of these Standard Terms, public open source version of software if the claim of infringement or misappropriation does not allege specifically that the infringement or misappropriation arises from the DataPelago Services (as opposed to the open source software itself), or due to your unauthorized modifications or combinations of the DataPelago Services with and into other technologies or services without DataPelago’s written consent. If DataPelago is obligated to indemnify you under this Section 11 or if it reasonably believes it may have liability under this Section 11, DataPelago may, in addition to its other obligations hereunder: (i) obtain for you the right to continue using the DataPelago Services on a non-infringing basis; or (ii) modify the DataPelago Services so they are no longer infringing but of equivalent or better functionality, performance and interoperability. If neither of the foregoing options are commercially feasible, DataPelago may discontinue the provisioning of the DataPelago Services; provided that, it will issue you a pro rata refund or credit for the unused portion of the DataPelago Services.
11.2 By You. You will indemnify, defend and hold DataPelago harmless against any losses, damages, expenses or liabilities arising from your or your Authorized User’s use of the DataPelago Services, including without limitation the violation of these Standard Terms, any misappropriation or infringement of intellectual property rights or other claims arising from Your Data or Support Data, or arising from any instructions provided by you to DataPelago in the creation by DataPelago of any deliverable(s) provided in connection with Professional Services.
11.3 Process. A party seeking indemnity (an indemnified party) must give the indemnifying party prompt written notice of any claim for indemnification under this Section 11; provided that, the failure or delay in doing so will not excuse an indemnifying party of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. An indemnified party shall thereafter have the sole right to control the investigation, defense, and settlement of the claim at its sole cost and expense, provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party. An indemnified party may retain counsel to represent it on a non-controlling basis at its own cost and expense. An indemnified party shall reasonably cooperate with the indemnifying party in the investigation, trial and defense of such claim and any appeal arising therefrom at the indemnifying party’s expense.
11.4 Sole Remedy. SUBJECT TO SECTION 11.3, SECTION 11.1 (INDEMNIFICATION BY DATAPELAGO) STATES THE ENTIRE OBLIGATION OF DATAPELAGO AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE DATAPELAGO SERVICES.
DataPelago may from time to time make Third-Party Products available to you. For purposes of these Standard Terms, such Third-Party Products are subject to their own terms and conditions and flow through provisions, as applicable. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products. Third Party Products are not DataPelago Services and, as between the parties, DataPelago has no liability with respect to your procurement or use of Third-Party Products.
You agree to abide by and to conform to any and all export regulations in force during these Standard Terms that are applicable to you or the Services provided, including but not limited to any export rules and regulations of the United States of America. You understand that these regulations may prohibit the export or re-export of Documentation, and any information or technical data related to the Services. The Services and the underlying information and technology may not be accessed, downloaded, or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
DataPelago reserves the right to change or modify the terms of these Standard Terms upon written notice to you. All such changes shall be effective immediately; provided, however, for existing customers, such modified Standard Terms, unless otherwise stated in an Order, shall be effective upon the later of (i) upon the renewal of the subscription term for any subscription-based Services or (ii) thirty (30) days after posting with respect to all other Services. If any changes to these Standard Terms are unacceptable to you, you may terminate the Services upon renewal by providing at least thirty (30) days’ written notice of termination to DataPelago. Continued use of the Services following the effective date of any changes constitutes your acceptance of the changes but does not affect the foregoing right of termination. For purpose of this Section 14, the posting of an updated copy of these Standard Terms to the Services shall constitute written notice of the change(s) to these Standard Terms.
15.1 Notice. Except as otherwise provided herein, notices under these Standard Terms by you to DataPelago will be deemed to be sufficiently given, effective on the date received, when delivered personally or by overnight express, or nationally recognized courier services, or three (3) business days after mailing when sent by certified or registered mail, postage prepaid. You consent to receive from DataPelago all communications including notices, agreements, legally required disclosures or other information in connection with the Services electronically. DataPelago may provide such notices by posting them on the Services or at the email address you provided to DataPelago.
15.2 Entire Agreement. The Order together with these Standard Terms and any other terms and conditions incorporated into these Standard Terms by reference (if any) constitutes the complete agreement between DataPelago and you regarding the DataPelago Services and supersedes all previous communications between the parties relating to the subject matter herein.
15.3 Assignment. You may not assign these Standard Terms or the rights granted hereunder without DataPelago’s prior written consent, and any such assignment without consent is void.
15.4 Governing Law; Jurisdiction. These Standard Terms shall be governed by the laws of the State of California without reference to its conflicts of law principles or your state or country of residence. Each party hereby consents to the exclusive personal jurisdiction and venue of the federal and state courts located in Santa Clara County, State of California, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You agree that any claim arising out of or related to these Standard Terms must be brought within one (1) year after the date it first accrued. If any action, suit, or legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Standard Terms, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
15.5 Equitable Relief. Each party acknowledges that a breach by a party of Section 7 (Confidentiality) or Section 8 (Intellectual Property Rights), may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Standard Terms to the contrary.
15.6 Promotional Activities. If you are signing on behalf of an entity, you agree that DataPelago may use your name and logo to identify you as a customer of DataPelago on our website, and as a part of a general list of our customers for use in our corporate, promotional, and marketing materials. You agree that we may issue a press release identifying you as a customer and describe the nature of the services to be provided. The content of any press release using your name will be subject to your prior approval, which will not be unreasonably withheld. DataPelago’s use of your name and logo does not create any ownership right therein and all rights not granted to DataPelago are reserved by you.
15.7 General Terms. Except for payment obligations, neither party shall be held responsible for any delay or failure in its performance to the extent that such delay or failure is caused by causes beyond its reasonable control. If any part of these Standard Terms is found unenforceable by a court of competent jurisdiction, such provision(s) will be ineffective to the extent of the court’s ruling and the remainder of these Standard Terms will remain in full force and effect. DataPelago’s failure to enforce any rights hereunder, irrespective of the length of time for which such failure continues, shall not constitute a waiver of those or any other rights. The waiver by a party of any breach of any provision of these Standard Terms will not operate or be construed as a waiver of any subsequent breach. The parties' relationship is that of independent contractors. Neither party is an agent for the other, nor does either party have the right to bind the other to any agreement with a third party. The captions used in these Standard Terms are for convenience only and are not binding.
Terms not otherwise defined herein shall have the following meanings:
“Authorized Recipients” means a party’s and its affiliates’ officers, employees, agents and consultants who need access to the Confidential Information for the purpose set forth in these Standard Terms and who are bound by confidentiality obligations at least as stringent as those set forth herein.
“Authorized Users” means individuals authorized by you to use the Services solely on your behalf, which may include, employees, and contractors but no other third parties without DataPelago’s prior written consent.
“Confidential Information” means any proprietary information, software, personal information, data or know-how of the Discloser that is disclosed under these Standard Terms which is marked as confidential, or which a reasonable person would understand to be confidential based on the context of the disclosure or the nature of the information. For clarity, the Services and Documentation are DataPelago’s Confidential Information. Confidential Information does not include information which the Recipient may demonstrate through written evidence: (i) was already known to the Recipient prior to the time that it was disclosed by the Discloser; (ii) is or has entered the public domain through no breach of these Standard Terms by Recipient; (iii) has rightfully been received by Recipient from a third party without any breach of these Standard Terms; (iv) was approved for release by the written consent of the Discloser; (v) was independently developed by the Recipient without use of the Discloser’s Confidential Information; or (vi) was required to be disclosed pursuant to the order of a court or governmental agency of competent jurisdiction provided that the Discloser has, if permitted by law, been given reasonable notice of the order and the opportunity to contest the disclosure and any such disclosure is limited strictly to the Confidential Information which is the subject of such order.
“DataPelago Services” means the Services, Support Services, and the Professional Services provided by DataPelago.
“Documentation” means user manuals, online help files, technical manuals, and other materials published by DataPelago which describe the Services and its uses, features, specifications, technical requirements, and/or the Support Services.
“Order” means the ordering document pursuant to which you subscribe to or purchase the DataPelago Services. The Order will include a description of the specific services purchased, the associated cost, quantity, metering or consumption terms, and other similar terms.
“Professional Services” means implementation, configuration, integration, training, advisory, engineering, and other professional services related to the Services that are specified in an Order or statement of work.
“Sensitive Data” means protected health information as defined under the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented from time to time, personal data of EU or Swiss data subjects governed by GDPR, other similar international laws, Social Security numbers; national, state, or local identification number(s); and driver’s license number(s), or any cardholder data as defined under PCI-DSS.
“Services” means the cloud-based DataPelago software platform provided to you pursuant to an Order and these Standard Terms, which provides data analytics solutions.
“Support Data” means any data, content, or other information transmitted by your Authorized Users to DataPelago in order to provide Support Services.
“Support Services” means diagnostic, troubleshooting, remediation, and other support services related to the Services provided to you pursuant to an Order.
“Term” means the period of authorized access and use of Services as set forth in an Order.
“Third-Party Products” means any products provided by third parties, such as open-source software or other software, that may be used with or incorporated into the DataPelago Services.
“Usage Data” means data and information related to your use of the DataPelago Services that is used by DataPelago for metering, billing and consumption, and to compile statistical and performance information related to the provision and operation of the DataPelago Services, and to ensure compliance with these Standard Terms and the applicable Order.
“Your Data” means the data, information, or other content contained in your Cluster.