TERMS OF SERVICE
Last Updated: May 10, 2017
These terms of service (these “Terms“) form a contract between you and FogLogic Inc., a Delaware corporation (“FogLogic“, “we“, “us“, or “our“) that governs your access and use of (i) the enterprise application management solution provided by FogLogic for cloud-based data collection, management and analysis; (ii) the FogLogic websites or applications; and (iii) any written or electronic use or features guides or other documentation provided or made available by FogLogic (the “User Guides“) (collectively the “Service(s)“).
If you have entered into a separate paid Master SaaS Agreement with us for Services, the terms of that agreement control to the extent that they conflict with these Terms. If you have not entered into a separate paid agreement with us for specific services, then by registering for or using any of the Services you agree to be bound by these Terms.
If you are using the Services on behalf of an organization, you are agreeing to these Terms on your own behalf and on behalf of that organization and promising to FogLogic that you have the authority to bind that organization to these Terms (in which case, “you” and “your” will refer to you individually and that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Service. You may use the Services only in compliance with these Terms and only if you have the power to form a contract with FogLogic and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning these Terms, please contact us at email@example.com.
Please note that FogLogic does not provide warranties for the Services. These Terms also limit our liability to you. See Sections 14 (NO WARRANTY) and 16 (LIMITATION OF LIABILITY) below for details.
- CHANGES TO THESE TERMS
We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the FogLogic website. Any changes will be effective upon posting the revised version of these Terms on www.foglogic.com (the “Site”) (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we may notify you via the Services and/or by email to the email address associated with your account. We encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes and the revised Terms. If you don’t agree to any of the changes, we are not obligated to keep providing the Services, and you must cancel and stop using the Services.
- USE OF THE SERVICE
You may use the Service only in strict compliance with these Terms and all applicable laws.
- LIMITED LICENSE AND RESTRICTIONS
3.1 Limited License. Subject to these Terms, and for the payment of the Fees, we grant you a worldwide, non-transferrable, non-sublicensable and non-exclusive right for the length of your use of the Services to the Software you received or downloaded from us (“Software”). If Software is not distributed to you to obtain access to or use of the Services then no license is granted. We reserve all other rights to the Software that may exist or arise outside of these Terms or a separate license.
3.2 Restrictions on the Limited License. You may not: a) modify, alter, tamper with, repair or otherwise create derivative works of any Software made available for download via the Services; b) reverse engineer, disassemble or decompile the software used to provide or access the Services, including the Software, or attempt to discover or recreate the source code used to provide or access the Services, except and only to the extent applicable law expressly permits doing so; or c) use the Services or knowledge you gain from your use of the Services to develop or distribute any software product, other product or service that competes in the market place with the Software or the Services.
- CUSTOMER ACCOUNTS
To obtain access to certain Services, you may be required to obtain an account with FogLogic (in which case you will become a “Registered User“), by completing a registration form and designating a user ID and password. Until you apply for and are approved for an account your access to the Services will be limited to the areas of the Services, if any, that FogLogic makes available to the general public. Once you become a Registered User, you may invite others to access your account by registering with the Services and entering a designated user ID and password. When registering with FogLogic and accessing the Services, all Registered Users and persons and entities such Registered Users invite to access their accounts must: (a) provide true, accurate, current and complete information about themselves as requested by the Services’ registration form (such information being the “Registration Data“); (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times thereafter, and (c) strictly comply at all times with these Terms. FogLogic may deny approval or withdraw such approval at any time in its sole discretion, with or without cause.
Only persons or entities designated by you may use your FogLogic account. All Registered Users must keep their user IDs and passwords confidential and not authorize any third party to access or use the Services on their or your behalf, unless we provide an approved mechanism for such use. FogLogic will not be liable for any loss or damage arising from any unauthorized use of your account(s).
If a third party such as an employer or customer provided you with access to its account, that party has rights to the account and is authorized to: manage your access, reset your password, or suspend or cancel your access; view your usage and profile data, including how and when the account is used; and read or store Customer Data in the account.
- CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION
- CUSTOMER DATA
Except for material that we license to you, we don’t claim ownership of any data or content that is uploaded, transmitted, stored, or processed in connection with the Services (collectively, “Customer Data”). We also don’t control, verify, or endorse the Customer Data that you and others make available to or on the Services.
If you enable any features that allow you to share the Customer Data with others, anyone you’ve shared Customer Data with may have access to your Customer Data.
You hereby grant FogLogic and its agents the right to transmit, use and disclose your Customer Data solely to the extent necessary to provide the Services, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency.
You represent and warrant that: (a) you have all the rights in the Customer Data necessary for you to use the Services and to grant the rights in this Section; and (b) the collection, storage, use, or transmission of the Customer doesn’t violate any law or these Terms.
You will: (a) be solely responsible for the nature, quality and accuracy of the Customer Data; (b) ensure that the Customer Data complies with these Terms and any and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to the Customer Data, including any notices sent to you by any person claiming that any Customer Data violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Customer Data, which may include, your use of additional encryption technology to protect the Customer Data from unauthorized access. FogLogic will have no liability of any kind as a result of the deletion of, correction to, destruction of, damage to, loss of or failure to store or encrypt any Customer Data.
You must immediately notify FogLogic in writing of any unauthorized use of: (a) any Customer Data, (b) any account, or (c) the Services that comes to your attention. In the event of any such unauthorized use by any third party that obtained unauthorized access through you, you will take all steps necessary to terminate such unauthorized use. You will provide FogLogic with such cooperation and assistance related to any such unauthorized use as FogLogic may reasonably request.
- CUSTOMER DATA STORED IN THE UNITED STATES; DURATION OF STORAGE
7.1 Data Stores in the US. The Services are provided from the United States. By using and accessing the Services, you understand and consent to the storage and processing of the Customer Data and any other personal information in the United States. In the case of users located outside the United States, FogLogic reserves the right to store and process Customer Data, including without limitation personal information, outside of the United States. FogLogic complies with the requirements of the EU-US Privacy Shield Framework and the Swiss-US Privacy Shield Framework. Any questions on storage or processing of the Customer Data should be sent to firstname.lastname@example.org.
7.2 Limited Duration of Data Storage. We will retain or store all Customer Data for a period of three (3) months from the day the data is received (“Data Retention Period”). If you would like for us to store or retain the Customer Data for a greater period of time than the Retention Period, you must enter into a separate written agreement with us. After the Data Retention Period, we will destroy or delete all Customer Data.
- SUSPENSION AND TERMINATION OF USE OF THE SERVICES
We reserve the right to temporarily suspend or terminate your access to the Services at any time in our sole discretion, with or without cause, with or without notice, and without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Services for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause FogLogic to incur legal liability or disrupt others’ use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code transmitted by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage or processing capacity or bandwidth; or (f) unplanned technical problems and outages. If, in FogLogic’s determination, the suspension might be indefinite and/or FogLogic has elected to terminate your access to the Service, FogLogic will use commercially reasonable efforts to notify you through the Service and/or by email to the email address associated with your account. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to the Customer Data that is stored within the Services.
Upon termination by FogLogic for reasons other than cause, you may request access to your Customer Data, which we will make available for an additional fee. You must make such request with five (5) days following termination. Otherwise, any Customer Data you have stored in the Services will not be retrievable, and we will have no obligation to maintain any Customer Data you have stored in the Services.
In addition to other termination provisions, if your account is not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (a) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User; or (b) you do not engage in any activity in your account for any period of one hundred and twenty (120) consecutive days. In the event of such termination, any Customer Data you may have stored will be lost.
- ACCEPTABLE USE
You may only use the Services if you do so in compliance with our standard policies and procedures; if you do not, we reserve the right to terminate your use of the Services at any time in our sole discretion. You must not use the Services to harm others or the Services. For example, you must not use the Services to harm, threaten, or harass another person, organization, or FogLogic and/or to build a similar service, application or website. You must not: damage, disable, overburden, or impair the Services (or any network connected to the Services); resell or redistribute the Services or any part of them; use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out such activities; or use any automated process or service (such as a bot, a spider, or periodic caching of information stored by FogLogic) to access or use the Services. In addition, you promise that you will not and will not encourage or assist any third party to:
- sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
- remove, obscure or alter any proprietary rights notices pertaining to the Services;
- access or use the Services in a way intended to improperly avoid: i) incurring fees or ii) exceeding usage limits or quotas;
- use the Services in any situation in which the failure of the Services could lead to death, personal injury, or physical property or environmental damage;
- use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate Customer Data, such as Customer Data: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit any Customer Data that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
- interfere with or disrupt servers or networks used by FogLogic to provide the Services or used by other users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any Software or the Services;
- access or attempt to access FogLogic’s other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
- cause, in FogLogic’s sole discretion, inordinate burden on the Services or FogLogic’s system resources or capacity; or
- share passwords or other access information or devices or otherwise authorize any third party to access or use the Software or the Services.
We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right to determine whether and what action to take in response to each such instance, and any action or inaction in a particular instance will not dictate or limit our response to a future instance. We will not assume or have any liability for any action or inaction with respect to any Customer Data.
- UPDATES TO THE SERVICES
FogLogic reserves the right to make necessary unscheduled deployments of changes, updates or enhancements to the Services at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
- EXPORT CONTROLS
The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Services without U.S. government permission to anyone on any U.S. government exclusion lists. You represent and warrant that you are not on any such lists or under the control of or an agent for anyone on any such lists.
- THIRD PARTY SERVICES AND CUSTOMER DATA
All transactions using FogLogic’s Services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content or services, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Similarly, some features and functionalities of the Services may be provided by third parties, and the use of such features and functionalities may require you to provide your Customer Data to such third parties. We may also provide information regarding third parties (including third party websites) and some third party content to you as part of the Services. We are not, however, responsible for anything on a third party site or any third party content you may gain access to when using the Services, and you irrevocably waive any claim against us with respect to such sites and third party content. FogLogic shall have no liability, obligation or responsibility for any correspondence, purchase or promotion between you and any third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third party. Should you incur any potential or actual liability resulting from your use of any third party services (which are not required to use the Services), or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third party services, we will not be responsible unless the problem was the direct result of our negligence or the breach of any agreement between us and you.
- FOGLOGIC PROPRIETARY RIGHTS; CONFIDENTIALITY
13.1 Proprietary Rights
As between FogLogic and you, FogLogic or its licensors own and reserve all right, title and interest in and to the Services and all hardware, software (including the Software) and other items used to provide the Services, other than the rights explicitly granted to you to use the Services in accordance with these Terms. No title to or ownership of any proprietary rights related to the Services is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by FogLogic. In the event that you provide comments, suggestions and recommendations to FogLogic with respect to the Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Services) (collectively, “Feedback“), You hereby grant to FogLogic a world-wide, royalty free, irrevocable, perpetual license to use any Feedback in connection with the Services.
You acknowledge that you may obtain proprietary information of FogLogic (“Proprietary Information”). Such Proprietary Information shall belong solely to FogLogic and includes, but is not limited to, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information:
You shall not use (except as expressly authorized by these Terms) or disclose FogLogic’s Proprietary Information without our prior written consent unless such Proprietary Information becomes part of the public domain without breach of these Terms.
You agree to take all reasonable measures to maintain the Proprietary Information in confidence.
If you are an organization, you will disclose the Proprietary Information only to those of your employees and consultants as are necessary for the use expressly and unambiguously authorized hereunder, and only if such employees and consultants are bound by confidentiality obligations no less restrictive than those herein. You shall not, without our prior written consent, disclose or otherwise make available any of the Proprietary Information or copies thereof to any third party.
We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Services as part of our efforts to protect the Services, protect our customers, or stop you from breaching these Terms.
- NO WARRANTY
We will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, WE do not warrant that the Services will be uninterrupted or error free; nor do WE make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
To the extent permitted by applicable law, you will defend FogLogic against any cost, loss, damage, or other liability arising from any third party demand or claim that any Customer Data provided by you or your use of the Service in breach of these Terms: (a) infringes a patent, trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of FogLogic’s actions); or (b) violates applicable law or these Terms. FogLogic will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND TO THE FULLEST EXTENT OF THE LAW, EXCEPT FOR BODILY INJURY OF A PERSON, WE AND OUR SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO US FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES
The laws of the State of California govern the interpretation of these Terms and apply to claims for breach of these Terms, without reference to or application of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Santa Clara County, California for all disputes arising out of or relating to these Terms. FogLogic may assign this contract to another entity at any time with or without notice to you.
We may send you, in electronic form, information about the Services, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Services or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Services.
- FEES & PAYMENTS
The applicable fees for the Services (“Fees“) are available in FogLogic’s then-current price list. The price stated for the Services excludes all taxes and charges, unless stated otherwise. You are responsible for any taxes and for all other charges incidental to using the Services (for example, data charges and currency exchange settlements). You will pay the Fees in the currency FogLogic quoted for your account. FogLogic reserves the right to change the quoted currency at any time.
We’ll notify you in advance, either through the Services or to the email address you have most recently provided to us, if we change the price of the Services. If there is a specific length and price for your Service offer already in effect, that price will remain in force for that time. After the offer period ends, your use of the Service will be charged at the then-current price. If your Service is on a period basis (for example, monthly) with no specific length, we will notify you of any price change at least thirty (30) days in advance. If you don’t agree to these changes, you must cancel and stop using the Services prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, your access to the Services will be terminated at the end of your current Service period or payment period. If you fail to cancel in accordance with these Terms, we will automatically renew the Service at the then-current price and for the same subscription period and will charge you commencing on the first day of the renewal of the subscription period.
You must be authorized to use the payment method (such as credit card, ACH, wire transfer or any other available payment method – collectively, “Payment Method”) that you enter when you create a billing account. You authorize us to charge you for the Services using your Payment Method and for any paid feature of the Services that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. We may automatically renew your Service and charge you for any renewal term. All paid accounts are due the date the invoice is posted on your account. Except as specifically set forth in this Section, all Services, including account renewals, are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable.
You must keep all information in your billing account current. You may change your Payment Method at any time. If you tell us to stop using your Payment Method and we no longer receive payment from you for any paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Services if you fail to timely pay in full.
If you are currently on a free trial, you may cancel or downgrade your account, free of charge, at any time until your paid subscription commences.
The last day of the free trial signifies the due date of the first payment. If payment is not received by FogLogic on the due date, we may elect to disable your account until we have processed all outstanding payments, during which time your Customer Data will not be available. You retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information.
Unless we notify you otherwise, if you are participating in any free trial, you must cancel the Services by the end of the trial period to avoid incurring charges. If you do not cancel your Services and we have notified you that the Services will convert to a paid subscription at the end of the trial period, you authorize us to charge you for the Services and no credits or refunds will be available.
21.1. Severability; Entire Agreement
These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Services. It supersedes any prior contract or oral or written statements regarding your use of the Services.
21.2. Assignment and transfer
We may assign, transfer, or otherwise dispose of our rights and obligations under these Terms, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Services.
21.3. Independent Contractors; No third-party beneficiaries
FogLogic and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
You must bring any claim related to these Terms or the Services within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn’t filed in time, the claim is permanently barred.
The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.