- THOUSANDEYES SERVICES
- SaaS Subscription. ThousandEyes offers a suite of services designed to help customers measure and monitor the availability, performance and security of web applications, hosted services and networks. The Service is provided for the Subscription Term.
- Support and Data Protection. Subject to these TOU and during the Subscription Term, ThousandEyes will (i) provide Support Services as described in the Support Services Policy located at:https://www.thousandeyes.com/legal/support and (ii) comply with the data protection and information security terms located at:https://www.thousandeyes.com/legal/data-privacy. These terms may be modified in ThousandEyes's discretion, provided that no update will materially diminish the level of Support Services or data protection and information security measures provided to Customer.
- Pre-release Version of the Service. ThousandEyes may permit Customer to access pre-release features of the Service that are not generally available to ThousandEyes customers (the "Beta Service"). Beta Services are identified as such, and Customer may elect to use or forego the use of Beta Services. Customer understands and agrees that: (i) the Beta Service is a beta test version that may contain bugs, defects and errors; (ii) it may only use the Beta Service in non-production operations and environments; (iii) the Beta Service is not expected to contain the Service of the version of such service that ThousandEyes may make available for commercial distribution (the "Commercial Release"), and (iv) any feedback provided by Customer pertaining to the Beta Service is provided "as is" without any warranty of any kind, and may be used by ThousandEyes for development of, and incorporation into, the Commercial Release and other ThousandEyes products or services, without restriction or further obligation to Customer or any other party. ThousandEyes has no obligation to correct any bugs, defects or errors in the Beta Service or otherwise to support or maintain the Beta Service or offer a Commercial Release. Customer acknowledges that any expenditures made, research or development performed, or business plans made, by Customer regarding or in reliance upon the Beta Service are done entirely at Customer's own risk. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BETA SERVICE AND ALL OTHER MATERIALS PROVIDED UNDER THIS SECTION ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. CUSTOMER BEARS THE ENTIRE RISK AS TO THE USE OR PERFORMANCE OF THE BETA SERVICE
- CUSTOMER RIGHTS AND OBLIGATIONS
- Access and Use. Subject to the terms and conditions in these TOU, any license quantities and additional license terms published by ThousandEyes and incorporated by reference in the Order Form, and payment of applicable fees to ThousandEyes by an Approved Source, ThousandEyes grants to Customer the limited, nonexclusive, nontransferable right to access and use the Service during the Subscription Term solely for its internal business purposes.
- Permitted Users. Customer may permit its Permitted Users to access and use the Service, provided that: (a) Customer remains responsible for compliance with the terms and conditions of these TOU by all Permitted Users and (b) use of the Service by any Permitted User is for the sole benefit of Customer or its Affiliates. Customer will ensure that all Permitted Users keep Security Credentials strictly confidential. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Service under its account, and (b) notify ThousandEyes promptly of any such unauthorized access or use. Customer agrees that: (a) Customer is solely responsible for collecting, inputting and updating all Security Credentials; and (b) ThousandEyes assumes no responsibility for the supervision, management or control of Customer's and Customer Permitted User's Security Credentials. Customer will promptly notify ThousandEyes of any suspected or alleged violation of these TOU and will cooperate with ThousandEyes with respect to investigation by ThousandEyes of any suspected or alleged violation of these TOU. ThousandEyes may suspend or terminate any Permitted User's access to the Service in the event that it reasonably determines that such Permitted User has violated these TOU.
- General Restrictions. Customer will not: (a) sell, resell, rent, or lease the Service, (b) copy, provide access to, sublicense or otherwise make the Service (or any part thereof) accessible to a third party or anyone other the Permitted Users, except as expressly permitted in these TOU; (c) incorporate the Service (or any part thereof) into another product or service or otherwise use the Service to provide any product or service to a third party in any manner; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to ThousandEyes); (e) modify the Service (or any part thereof) or any Documentation, or create any derivative product from any of the foregoing; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports, Performance Metrics, or data printed from the Service); (g) publicly disseminate Performance Metrics or results of benchmark tests run on or by the Service; (h) use the Service in contravention of the applicable Documentation, applicable laws or government regulations; (i) attempt to gain unauthorized access to any systems, networks, or data of ThousandEyes or any third party through use of the Service; (j) interfere with or disrupt the integrity or performance of any ThousandEyes or third party systems, data, or networks through use of the Service; or (k) use the Services in violation of any agreement between Customer and a third party.
- Customer's Right to Use Performance Metrics. Subject to the terms and conditions of these TOU, any license quantities and additional license terms published by ThousandEyes and incorporated by reference in the Order Form, and payment of applicable fees to ThousandEyes by an Approved Source, ThousandEyes grants to Customer a limited, perpetual, royalty-free, irrevocable license to download, copy, store, make derivative works of and use Performance Metrics provided to Customer as part of the Service for any internal business purpose permitted under these TOU. For the avoidance of doubt, the aforementioned license does not pertain to Performance Metrics generated by any party other than Customer, whether aggregated or otherwise. ThousandEyes uses commercially reasonable efforts to store Performance Metrics for up to ninety (90) days.
- Non-ThousandEyes Providers. ThousandEyes or third parties may make available third-party products or services, including, for example, Non- ThousandEyes Applications and consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-ThousandEyes provider, product or service is solely between Customer and the applicable Non-ThousandEyes provider. ThousandEyes does not warrant or support such applications, products or services, whether or not designated by ThousandEyes as "Powered by ThousandEyes" or otherwise.
- Non-ThousandEyes Applications. If Customer chooses to use a Non- ThousandEyes Application with the Services, Customer grants ThousandEyes permission to allow the Non-ThousandEyes Application and its provider to access Customer Confidential Information solely to the extent required for the interoperation of that Non-ThousandEyes Application with the Services. ThousandEyes is not responsible for any disclosure, modification or deletion of Customer Confidential Information resulting from access by the provider of such Non-ThousandEyes Application or its provider. The Services may contain features designed to interoperate with such Non-ThousandEyes Applications. To use such features, Customer may be required to obtain access to such Non-ThousandEyes Applications from their providers and may be required to grant ThousandEyes access to Customer's account(s) on such Non- ThousandEyes Applications. ThousandEyes cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-ThousandEyes Application ceases to make the Non-ThousandEyes Application available for interoperation with the corresponding Service features in a manner acceptable to ThousandEyes.
All right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the ThousandEyes Technology is the exclusive property of ThousandEyes and its suppliers, and all rights not expressly granted to Customer in this Agreement are expressly reserved.
- Termination. Customer's use of the Services may be immediately terminated and/or suspended, at ThousandEyes's option, upon notice due to: (a) a breach of the terms of these TOU by Customer or any Permitted User; or (b) a breach by an Approved Source of its payment obligations to ThousandEyes with respect to the subscriptions it is reselling to Customer in connection with these TOU.
- Termination of an Approved Source's Agreement with ThousandEyes. Following any termination or expiration of an Approved Source's agreement with ThousandEyes authorizing an Approved Source to resell the Services, each Customer subscription to the Services outstanding at the time of such termination or expiration ("Legacy Order") shall remain in effect until the end of its subscription term, and shall continue to be governed by these TOU, provided that Customer is not in breach of these TOU and ThousandEyes has received all payments due in connection with such Legacy Orders. Except as provided herein, following a termination or expiration of an Approved Source's agreement with ThousandEyes, ThousandEyes is under no obligation to assume a direct contractual relationship with Customer.
- No Refunds upon Termination. In no case will ThousandEyes's termination or suspension of the Services in accordance with these TOU, or termination of an Approved Source's agreement with ThousandEyes give rise to any liability of ThousandEyes to Customer for refunds.
- Survival. Sections 2.4 (Customer's Right to Use Performance Metrics), 3 (Ownership), 4 (Term and Termination), 5.2 (Warranty Disclaimer), 6 (Limitation of Liability), 7 (Confidential Information), and 8 (General Terms) will survive any expiration or termination of these TOU.
- LIMITED WARRANTY AND DISCLAIMER
- Warranty. As between ThousandEyes and Customer, ThousandEyes warrants that (a) it will will use commercially reasonable efforts to deliver to Customer the Service free of any virus, trap door, worm or any other disabling device and (b) during the applicable Subscription Term the Service will operate in substantial conformity with the Documentation. ThousandEyes does not warrant that Customer's use of the Service will be uninterrupted or error-free, that ThousandEyes will review the Performance Metrics for accuracy or that it will preserve or maintain the Performance Metrics or other data without loss. ThousandEyes's sole liability and Customer's entire remedy for any breach of warranty will be for ThousandEyes to use commercially reasonable efforts to provide a workaround for the reported non-conformity or, if ThousandEyes cannot do so, then ThousandEyes will terminate the Subscription Term and cause the refund of any prepaid unearned fees to the Approved Source. This limited warranty and remedies do not apply if: (i) the error was caused by modifications to the Service or ThousandEyes Technology other than by ThousandEyes or its agents, or combination, operation or use of the Service with Customer's applications, software, hardware, services or systems, or (ii) use by Customer of the Services outside the scope of the license in Section 2 (Customer Rights and Obligations) or otherwise in violation of these TOU.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 5.1, THOUSANDEYES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THOUSANDEYES WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR CAUSED BY SYSTEMS OR OTHER FACTORS OUTSIDE THOUSANDEYES'S REASONABLE CONTROL.
- LIMITATION OF LIABILITY
- Consequential Damages. EXCEPT FOR VIOLATION OF SECTION 2.3 (GENERAL RESTRICTIONS) OR OTHER MISAPPROPRIATION OF THOUSANDEYES'S INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS AND THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Limitation of Liability. EXCEPT FOR BREACHES OF SECTION 2 (CUSTOMERS RIGHTS AND OBLIGATIONS) OR SECTION 8 (CONFIDENTIAL INFORMATION), AND EXCEPT FOR DAMAGES ARISING OUT OF A PARTY'S WILLFUL MISCONDUCT, EACH PARTY'S ENTIRE AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO AN APPROVED SOURCE FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMIT OF LIABILITY IS CUMULATIVE AND NOT PER-INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
- CONFIDENTIAL INFORMATION
All code, inventions, know-how, pricing, business, technical and financial information or other non-public information one party ("Recipient") obtains from the other party ("Discloser") constitute Discloser's confidential information ("Confidential Information"); provided that these TOU is considered each party's Confidential Information. Except as expressly authorized herein, Recipient will hold in confidence and not intentionally or knowingly either use or disclose any Confidential Information to any third party except for its employees and contractors who have a need to know such information in connection with their performance or receipt of the Services, and who are under confidentiality obligations consistent with the terms of these TOU. Recipient's nondisclosure obligation will not apply to information which: (a) regards the public internet or which is otherwise available to the public; (b) was rightfully in its possession or known to it without an obligation of confidentiality prior to receipt of the Confidential Information; (c) is or has become public knowledge through no fault of Recipient; (d) is rightfully obtained by Recipient from a third party without breach of this section; or (e) is independently developed by Recipient without use of or reference to Confidential Information. Recipient may disclose Discloser's Confidential Information if required pursuant to an applicable regulation, law or court order, but only to the minimum extent required to comply therewith, and provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and cooperates reasonably with Discloser at Discloser's expense regarding any protective actions Discloser wishes to undertake. The Recipient shall, upon written request, either: (i) return to the Discloser in a secure manner, all Confidential Information (or such portion requested), including any copies, duplicates, summaries, abstracts or other representations of any such Confidential Information, in whatever form, then in its possession or control; or (ii) permanently delete such Confidential Information from its computer and storage systems and media, and destroy any and all tangible copies thereof. Upon request by the Discloser, the Recipient shall deliver to the Discloser written certification of its compliance with this provision. Customer has the sole responsibility for maintaining copies of its information and reports generated through the use of the Service.
- GENERAL TERMS
- Assignment. These TOU will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign these TOU without the other party's prior written consent; however, either party may, upon notice, but without obtaining consent, assign these TOU in connection with a merger, acquisition, business combination, change in control or transfer of all or substantially all of such party's assets or voting securities. In addition, ThousandEyes may assign this Agreement to Cisco Systems, Inc. or any affiliate of Cisco Systems, Inc. without Customer's consent. Any attempted assignment in violation of this section will be null and void.
- Severability. If any provision hereof is found by a court of competent jurisdiction to be unenforceable, it will be enforced to the maximum extent permissible under the circumstances so as to effect the parties' intent, and the remaining provisions of these TOU will remain in full force and effect.
- Export. ThousandEyes's Technology are subject to U.S. and local export control and sanctions laws. Customer acknowledges and agrees to the applicability of and Customer's compliance with those laws, and Customer will not receive, use, transfer, export or re-export any ThousandEyes Technology in a way that would cause ThousandEyes to violate those laws. Customer also agrees to obtain any required licenses or authorizations.
- Governing Law; Jurisdiction and Venue. These TOU are governed under California law without regard to conflicts of laws provisions, and without regard to the United Nations Convention on the International Sale of Goods or UCITA. The jurisdiction and venue for actions arising under these TOU will be the state and federal courts for San Francisco, California; both parties submit to the personal jurisdiction of such courts.
CUSTOMER'S PRIMARY PLACE OF BUSINESS GOVERNING LAW JURISDICTION AND VENUE United States, Latin America or the Caribbean State of California, United States of America Superior Court of California, County of Santa Clara and Federal Courts of the Northern District of California Canada Province of Ontario, Canada Courts of the Province of Ontario Europe (excluding Italy), Middle East, Africa, Asia (excluding Japan and China), Oceania (excluding Australia) Laws of England English Courts Japan Laws of Japan Tokyo District Court of Japan Australia Laws of the State of New South Wales, Australia State and Federal Courts of New South Wales Italy Laws of Italy Court of Milan China Laws of the People's Republic of China Hong Kong International Arbitration Center All other countries or territories State of California, United States of America Superior Court of California, County of Santa Clara and Federal Courts of the Northern District of California
- Notice. Any notices hereunder will be in writing and sent to the other party at such address as may be provided by such party in writing (including via email) and will be deemed received by the addressee: (a) if delivered in person, immediately upon receipt; (b) if sent by overnight courier service or email, the first business day following dispatch, or (c) if sent by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is mailed. All notices to ThousandEyes must be sent to its CFO's and Head of Legal's attention.
- Amendments; Waivers. Except as otherwise set forth herein, no supplement, modification, or amendment of these TOU will be binding, unless executed in writing by each party.
- Entire Agreement. These TOU, together with the Support Services Policy and data protection and information security terms referenced in Section 1.2 are the complete and exclusive statement of the parties' understanding; they supersede all previous or contemporaneous agreements and communications relating to the subject hereof.
- Force Majeure. Neither party will be liable for any failure to perform hereunder due to causes beyond its reasonable control.
- Independent Contractors. The parties hereto are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
- Publicity. Unless Customer sends ThousandEyes a written request to email@example.com, ThousandEyes may identify Customer as a ThousandEyes customer in marketing materials, provided such identification does not indicate endorsement.
- Further Contact. ThousandEyes may contact Customer regarding new ThousandEyes service features and offerings.
- Order of Precedence. With respect to the subject matter discussed herein, in the event of any conflict or inconsistency between these TOU and any other terms or conditions in Customer's agreement or Order Form with an Approved Source, these TOU shall prevail.
- Federal Government End Use Provisions. ThousandEyes provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these TOU. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227- 7015 (Technical Data â Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with ThousandEyes to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement.
"Affiliate(s)" mean a company that controls, owns, or is under common control of either ThousandEyes or Customer.
"Approved Source" means the ThousandEyes authorized reseller, distributor or service provider that has contracted directly with Customer for the sale of a subscription to Services.
"Customer" means the entity that has contracted with an Approved Source to purchase subscriptions to use the Services, subject to the conditions of these TOU. Where an Approved Source is using the Services for its own internal use, the Approved Source shall be considered to be the Customer.
"Documentation" means the specifications, user manuals and training materials that ThousandEyes makes generally available to all its customers relating to the use and operation of the Service.
"Non-ThousandEyes Applications" means a Web-based, offline or other software application functionality that is provided by an Approved Source, Customer, or a third party and interoperates with the Service, including, for example, an application that is developed by or for an Approved Source or Customer.
"Order Form" means the ordering document specifying the Services to be provided under the Agreement between Customer and an Approved Source (which incorporates these TOU by reference), including any additional product specific terms for the Services as required by ThousandEyes.
"Permitted User(s)" means individuals whom Customer has granted authorization to use the Service on behalf of Customer subject to the terms and conditions of these TOU.
"Performance Metrics" means general measurements and test results obtained through use of the Service.
"Purchased Unit(s)" means the quantity of the Service as specified in the ordering document submitted to ThousandEyes by an Approved Source in connection with Customer's purchase of the Services.
"Security Credentials" means any and all information provided by Customer or any Customer Permitted User to establish secure transmissions for use of the Service, including but not limited to personal information, information used to identify account names or account numbers, routing information, usernames, passwords, access codes and prompts.
"Service" means the ThousandEyes services that are ordered by Customer under an Order Form and made available by ThousandEyes for Customer's use in connection with the service, including any associated components described in the Documentation. "Services" exclude Non-ThousandEyes Applications.
"Subscription Term" means the time period for which Customer has purchased access to the Service, as specified in the Order Form.
"ThousandEyes Technology" means the Service, Performance Metrics, Documentation, any deliverables or other materials created in the course of delivering the Service, Support Services or Professional Services, any and all related and underlying technology and documentation, and any derivative works or modifications of the foregoing.