DataKitchen DataOps Observability end-user license agreement 

DATAOPS OBSERVABILITY TERMS OF SERVICE

PLEASE CAREFULLY READ THESE TERMS OF SERVICE (“AGREEMENT”) BEFORE ACCESSING, DOWNLOADING OR USING THE DATAOPS OBSERVABILITY SERVICE (THE “SERVICE”) AND ANY RELATED USER DOCUMENTATION (“DOCUMENTATION”) FROM THE WEBSITE OF DATAKITCHEN, INC., A DELAWARE CORPORATION WITH A BUSINESS ADDRESS AT  ONE BROADWAY, 14TH FLOOR, CAMBRIDGE, MA 02142, USA (“DATAKITCHEN”).

BY CLICKING ON THE “ACCEPT” BUTTON, AND/OR PURCHASING, ACCESSING, DOWNLOADING OR USING THE SERVICE, YOU ARE STATING THAT YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND/OR DO NOT ACCESS, DOWNLOAD OR USE THE SERVICE AND DOCUMENTATION.  

IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS AGREEMENT.

ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS, DOWNLOADING AND USE OF THE SERVICE AND DOCUMENTATION. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, YOU MUST NOT USE OR ACCESS THE SERVICE AND DOCUMENTATION.

IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN, YOU AND DATAKITCHEN HEREBY AGREE AS FOLLOWS:

1. 1. LICENSE, FEES AND SUPPORT. Subject to the terms, conditions and restrictions set forth in this Agreement, and any additional terms set forth in the applicable DataKitchen order form or landing page (“Order Form”), DataKitchen grants to you, and you accept, a non-exclusive, non-transferable, right and license, to access and use, solely for your use, (i) the Service as further specified on the Order Form and (ii) the Documentation, for the subscription term specified on the Order Form. You may use the Service only after you pay the subscription fees set forth in the Order Form, unless DataKitchen has agreed to provide you with a free trial license of the Service. In the absence of different payment terms contained in the Order Form, all fees are due and payable in advance. Further, you are responsible for any taxes that are applicable to the fees paid by you for the use of the Service.  If you fail to pay fees when due, you will be responsible for payment of interest in the amount of 1% per month, or the maximum interest allowed by applicable law, on such amount, and you will be responsible for all of DataKitchen’s costs of collection.  In addition, DataKitchen may immediately suspend or terminate your use of the Service in the event you fail to pay fees owed.  DataKitchen will provide reasonable support to you for the Service during the subscription term in accordance with the DataKitchen support policy applicable to the Service. 
   2. TERM AND TERMINATION.  The subscription term for the Service is specified on the Order Form, which will automatically renew for 30 day periods unless either party provides the other party with written notice of termination of the subscription for any reason at any time.  Your events and other data may be deleted within 30 days when the subscription is terminated.
   3. RESTRICTIONS; PROPRIETARY RIGHTS; FEEDBACK. You will not at any time: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service or disclose any of the foregoing; (ii) encumber, transfer, manufacture, distribute, sell, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use (except as expressly provided herein) the Service or Documentation; (iii) copy, modify, adapt, translate, incorporate into or with other products or services, or create a derivative work of any part of the Service or Documentation; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Service. You shall use the Service for your own purposes and shall not allow third parties to use the Service. The Service is the proprietary and confidential intellectual property of DataKitchen that contains trade secrets and is protected by copyright law. Subject to any license granted hereunder, DataKitchen retains sole and exclusive ownership of all right, title, and interest in and to the Service and any and all enhancements, modifications, corrections and derivative works that are made to the Service, all of which will be considered part of the Service for the purposes of this Agreement and will be owned by DataKitchen. You agree to comply with all applicable laws in your use of the Service and shall not use the Service for any illegal, criminal or fraudulent purposes. You may, in your sole discretion, provide DataKitchen with suggestions, enhancement requests, recommendations, or other feedback related to the Service and Documentation provided hereunder (“Feedback”). You hereby assign to DataKitchen all right, title, and interest in and to any Feedback, including all intellectual property rights therein or relating thereto.
   4. CONFIDENTIALITY. Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Breach of this Section may cause irreparable harm and damage. Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party. Confidential Information shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information.
   5. YOUR DATA AND PRIVACY.  The Service will collect, correlate and report on events that are part of complex data pipelines that produce analytic products like reports and dashboards (“Events”).  Events, including data tests and other details on the health of the pipelines, indicate the health of your system and identity potential problems that may affect your analytic products.  The more Events captured, the more complete the protection for the pipeline.  DataKitchen is committed to having technical, administrative, and system safeguards in place to secure any information regarding Events and data that you provide to us under this Agreement and pursuant to Your use of the Service (collectively “Your Data”).  As a result, DataKitchen has implemented industry standard procedures, practices and infrastructure to protect Your Data. DataKitchen maintains the confidentiality of Your Data and will not disclose it to third parties unless required by applicable law.  DataKitchen uses Your Data to enable your use of the Service and to improve the Service. You agree that DataKitchen may access, use and analyze summary statistics of your usage of the Service and to access to Your Data for performance, support, debugging, and diagnostic purposes.  Further, you give DataKitchen staff permission to contact you and communicate with DataKitchen in regards to Your Data and the Service.  You also give DataKitchen permission to add you to DataKitchen’s community slack channel, which you are free to leave at any time.  DataKitchen handles and protects all Customer Data, including personally identifiable information, in compliance with all applicable data protection laws and in accordance with the additional terms contained in the DataKitchen Privacy Policy located at https://datakitchen.com/privacypolicy, which is an integral part of this Agreement.  If you have any questions regarding the handling and protection of Customer Data or the DataKitchen Privacy Policy, please contact us at privacy@datakitchen.io.
   6. STORAGE AND APPROVAL. The service is free for 90 days and we require no credit card upfront.  After 90 days, the service will be $49 per month.  The Service grants you 1,500 events (API calls) per month.  Your events are stored by DataKitchen for 30 days.  If you exceed the 376 events in a week or 1,500 events in a month, DataKitchen may not retain your Events for the full 30 days.  Signing up for the Service and accepting this agreement does not guarantee you access to the Service since access is subject to DataKitchen approval and resource availability.
   7. WARRANTY DISCLAIMER. DATAKITCHEN DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND, INCLUDING ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE SERVICE WILL BE SECURE OR SUITABLE FOR YOUR INTENDED USE.  THE SERVICE IS PROVIDED “AS-IS” AND “AS-AVAILABLE”.  DATAKITCHEN MAKES NO AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICE, DOCUMENTATION, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
   8. LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF DATAKITCHEN TO YOU FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO DATAKITCHEN UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL DATAKITCHEN OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF DATAKITCHEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT.
   9. GENERAL.
      1. Entire Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If this Agreement conflicts with any of the terms or conditions of any Order Form, then this Agreement shall take precedence. Any purchase orders or other documents issued by you shall be deemed to be for your convenience only and, notwithstanding acceptance of such orders by DataKitchen, shall in no way change, override, or supplement this Agreement.
      2. Waiver. Any waiver or modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.
      3. Independent Contractor. The relationship between DataKitchen and you is that of independent contractors.  At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venture, employer or employee of the other party.
      4. Notices. All notices or other communications required to be given to DataKitchen shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to DataKitchen at the address first set forth above, or by email at legal@datakitchen.io, Attn: Legal Counsel. You agree that notices from DataKitchen to you may be sent to your email address specified on the Order Form. Notices shall be effective upon their receipt by the party to whom they are addressed.
      5. Assignment. You may not assign or transfer this Agreement or your subscription without DataKitchen’s prior written consent.
      6. Compliance with Laws. You will be responsible for compliance with all legal requirements related to you performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection, privacy and disclosure of data and information.  You will not provide access to the Service to any individual, entity, group or country in violation of U.S. export laws and regulations.
      7. Force Majeure. DataKitchen will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”). DataKitchen will give you prompt notice of the Force Majeure Event. The time for performance by DataKitchen will be extended for a period equal to the duration of the Force Majeure Event.
      8. Governing Law and Disputes. This Agreement and any dispute arising hereunder shall be governed by and interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law principles, and shall be subject to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts, and each party consents to the exclusive personal jurisdiction and venue of such courts.
      9. Survival. Sections 3 through 8 of this Agreement shall survive any termination of this Agreement.