Mattermost Cloud Subscription License Agreement
Effective as of October 13, 2021
IMPORTANT – READ CAREFULLY. THIS MATTERMOST CLOUD SUBSCRIPTION LICENSE AGREEMENT (“CLOUD AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN THE RELATIONSHIP BETWEEN YOU (“LICENSEE” OR “YOU”) AND MATTERMOST, INC. (“MATTERMOST”) (INDIVIDUALLY REFERRED HEREIN, EACH A “PARTY” AND COLLECTIVELY, AS THE “PARTIES”), AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO THE MATTERMOST PRODUCT MATERIALS HOSTED BY MATTERMOST OR ITS OUTSOURCED PROVIDER. ALL REFERENCES IN THIS CLOUD AGREEMENT TO THE “SALE” OR “PURCHASE” (OR OTHER SIMILAR TERMS) OF ANY SUBSCRIPTION OR PRODUCT MATERIALS SHALL MEAN THE SALE OR PURCHASE OF A LICENSE TO SUCH PRODUCT MATERIALS. TERMS NOT OTHERWISE DEFINED IN THE TEXT OF THIS CLOUD AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN EXHIBIT A OR THE APPLICABLE DOCUMENTATION.
BY ACCESSING THE PRODUCT MATERIALS, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT EFFECTIVE AS OF THE FIRST DATE YOU ACCESS THE PRODUCT MATERIALS (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS THE PRODUCT AND DELETE YOUR ACCOUNT IMMEDIATELY.
- Orders; Subscriptions; Delivery; Support.
1.1 How to Order. During the Term of this Cloud Agreement and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may purchase Product Materials and Support by either (i) enrolling directly on Mattermost’s website, or (ii) the parties agreeing to Orders that reference this Cloud Agreement. The features of, and any additional terms and conditions applicable to, the Licensed Software and Support, are as described in the Exhibits hereto
1.2. Subscriptions. The Product Materials are licensed pursuant to Subscriptions. Subscriptions will be licensed either (i) on a month-to month basis if Licensee enrolls on Mattermost’s website for month-to-month billing, (ii) on an annual or multi-year basis if Licensee and Mattermost separately agree on an Order submitted by Licensee and accepted by Mattermost, or (iii) on such other basis such as a Trial License or a Proof-of-Concept License, as is set forth in the applicable mutually agreed upon Order. Proof-of-Concept Subscriptions may be renewed by Licensee as set forth in the applicable Order; all other Subscriptions will automatically renew unless terminated as set for in Section 10.2. Trial Licenses may not be renewed.
1.3 Electronic Delivery. All Product Materials and Updates licensed by Licensee pursuant to this Cloud Agreement will be Delivered to Licensee by giving Licensee electronic access to such Product Materials and Updates. In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal Term of the applicable Subscription.
1.4 Support. Subject to Licensee’s compliance with the terms and conditions of this Cloud Agreement, Mattermost will provide Support to Licensee for the Licensed Software.
- Control of the Services; Maintenance of the Services; Storage and Backups.
2.1 Control of the Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Mattermost. Mattermost will provide and operate the Services in a professional and commercially reasonable manner in accordance with applicable law. Each Party shall retain sole responsibility for such Party’s information technology infrastructure, including computers, servers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by such Party or through the use of third-party services.
2.2 Maintenance of the Services. Mattermost may schedule maintenance activities from time to time. Regular maintenance activities will be scheduled outside Mattermost’s Normal Business Hours, and customers will be provided notice of such maintenance activities, according to Mattermost’s Service Level Agreement posted on Mattermost’s website. Mattermost will provide advance notice of any other maintenance activities that may interrupt Services, unless it is not reasonably able to do so.
2.3 Storage and Backups. Licensee agrees not to exceed the allotment of data storage space paid for by Licensee, and Licensee further acknowledges that exceeding such allotment could cause Service disruption. Mattermost regularly backs up the database used in conjunction with the Services, but is under no obligation to do so. Data restoration from backups may be offered at Mattermost’s then-current published rates per incident. If Mattermost backs up data, Mattermost will make a commercially reasonable effort to assist in restoring lost data; however, Mattermost does not guarantee that every backup will complete without error, that it will be able to restore any specific data, or that it will retain any backup for longer than seven days. Despite any of the foregoing or any other provision of this Cloud Agreement, Licensee understands and agrees that Mattermost is unable to recover, and shall have no liability for, data that was deleted due to Licensee-specified data retention policies set within the System Console of the Licensed Software.
- Ownership of Intellectual Property; License Grant; Restrictions.
3.1 Ownership. The Product Materials contain proprietary and confidential information of Mattermost and its licensors. Except to the extent licenses are expressly granted hereunder, each Party and each Party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets in and to that Party’s respective products and services. Mattermost retains all right, title and interest in and to any work product created by Mattermost in the course of providing Product Materials, Service or Support under this Cloud Agreement, and to all suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Licensee or any third party relating to the Licensed Software, which are hereby assigned to Mattermost. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Mattermost’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, or publication by Licensee of any such parts of the website, Product Materials or the Services, except as expressly authorized by this Cloud Agreement, is prohibited.
3.2 License Grants.
a. License Grant to Licensed Software Not Under a Public Software License. Subject to and in consideration of Licensee’s compliance with the terms and conditions of this Cloud Agreement, Mattermost hereby grants to the Licensee, solely during the applicable Subscription Term, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Cloud Agreement) and non-sublicensable license to access and Use the Licensed Software via the Internet address provided to Licensee by Mattermost, and Use the Documentation, training materials or other materials supplied by Mattermost to enable such Use.
b. License Grant to Licensed Software Under a Public Software License. Any software code contained in the Licensed Software which is licensed under a Public Software License will be licensed to Licensee under the terms and conditions of the third-party license applicable to such software code, including license terms or conditions included in source code headers, “license” or “copying” file, or the like that may be associated with the software code. In each such case, Licensee’s licensed rights to such software code are determined by the applicable Public Software License, not this Cloud Agreement. Mattermost does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws). To the extent the terms of the licenses applicable to third-party open-source Components require Mattermost to make an offer to provide source code or related information in connection with the open-source Components, such offer is hereby made. Any request for source code or related information should be directed only to: [email protected].
3.3 License Restrictions: General. Licensee (and its Registered Authorized Users) shall not remove, alter or obscure any of Mattermost’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Mattermost’s (or its licensors’) ownership or contribution from the Product Materials. Additionally, Licensee agrees to reproduce and include Mattermost’s (and its licensors’) proprietary and copyright notices on any copies of the Product Materials, or on any portion thereof, including reproduction of the copyright notice. Licensee further agrees that it (and its Registered Authorized Users) will not without express written permission of Mattermost: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Product Materials; (b) make the Product Materials or Services available to, or Use the Product Materials or Services for the benefit of, anyone other than Licensee or Licensee’s customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Product Materials or Services, or include any Product Materials or Services in a service bureau or outsourcing offering; (d) permit direct or indirect access to or Use of the Product Materials or Services in a way that circumvents a contractual usage limit; (e) copy the Product Materials or Services or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Cloud Agreement; (f) frame or mirror any part of the Services, other than framing on Licensee’s own intranets or otherwise for its own internal business purpose; or (g) access or Use any Product Materials or Services in order to build a competitive product or service.
3.4 License Restrictions: Cloud Infrastructure. In addition to the other restrictions provided for in this Cloud Agreement, Licensee agrees that it (and its Registered Authorized Users) will not (a) access the Services for or upload to the Cloud Infrastructure anything unlawful, misleading, malicious or discriminatory; (b) work around any technical limitations in the Cloud Infrastructure, Use any tool to enable features or functionality that are otherwise disabled in the Cloud Infrastructure; (c) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Infrastructure, prevent access to or Use of the Cloud Infrastructure by Mattermost’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests); (d) upload or transmit to the Cloud Infrastructure any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure; or (e) access or attempt to access any accounts or data on the Cloud Infrastructure, other than those explicitly belonging to Licensee or provided by Mattermost for Licensee’s Use.
- Licensee Responsibilities; Grant by Licensee.
4.1 Licensee shall provide accurate, current and complete information required to enable its Registered Authorized Users on the Cloud Infrastructure, and to maintain the accuracy of such information during the Use of the Services. Licensee shall require Registered Authorized Users to maintain proper password security, and for maintaining the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Cloud Agreement, Licensee is responsible for the actions of it Registered Authorized Users, of anybody accessing the Cloud Infrastructure using the credentials of any Registered Authorized User, and of any other individuals to Licensee has given access to the Services.
4.2 Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Licensee Data.
4.3 Licensee grants to Mattermost a non-exclusive, worldwide, royalty-free license to store, record, transmit, maintain, use, copy, perform and display the Licensee Data to the extent reasonably necessary to carry out its obligations under this Cloud Agreement.
- Fees; Payments.
5.1 Accrual of Payment Rights. Mattermost’s right to payment for Product Materials licensed by Licensee shall accrue on the date the Licensed Software is Delivered to Licensee. All payments accrued or made under this Cloud Agreement are non-cancelable and nonrefundable.
5.2 Invoicing and Payment. If you license a paid month-to-month Subscription, you must submit your credit card and you agree to an initial and recurring subscription fee (which in the case of an initially free Subscription will begin to be charged for all Registered Authorized Users f. Mattermost will automatically charge Licensee (i) for month-to-month Subscriptions, monthly in arrears based on Licensee’s actual Use of the Services during the preceding month and (ii) for annual or multi-year subscriptions at the start of each annual term. Proof-of-Concept Subscriptions may be billed by credit card or invoiced by Mattermost, as agreed between Mattermost and the Licensee. For all annual (or multi-year) Subscriptions, unless otherwise agreed between Mattermost and Licensee, payment of the License Fee is due within thirty days of Licensee’s receipt of an undisputed invoice. For any Subscription being charged to a credit card, Licensee accepts responsibility for all recurring charges until Licensee or Mattermost cancels the applicable Subscription. By subscribing for any paid Subscription and providing Mattermost with credit card information, Licensee authorizes Mattermost to charge such credit card for all applicable Products and Services.
5.3 Costs of Collection. Mattermost shall be entitled to reimbursement for any reasonable costs associated with the collection of any past-due balance. Late payments will incur fees in the lessor of 1.5% late fee/month or the maximum rate allowed by local law
5.4 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Cloud Agreement. Any taxes related to the Product Materials, Support, or training purchased or licensed pursuant to this Cloud Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Mattermost based on Mattermost’s income.
- No Warranty; Disclaimer.
6.1 THE PRODUCT MATERIALS, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND MATTERMOST HEREBY DISCLAIMS ALL EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MATTERMOST DOES NOT WARRANT THAT THE PRODUCT MATERIALS PROVIDED UNDER THIS CLOUD AGREEMENT WILL OPERATE WITHOUT INTERRUPTION, BE ERROR FREE OR THAT SUCH PRODUCT MATERIALS WILL SUCCEED IN RESOLVING ANY PROBLEM. LICENSEE ACKNOWLEDGES THAT THE NATURE OF INTERNET-BASED SERVICE DELIVERY IS SUCH THAT CONFIDENTIALITY AND PERFORMANCE CANNOT BE COMPLETELY ASSURED. MATTERMOST SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY UNAUTHORIZED ACCESS, USE, CORRUPTION OR LOSS OF ANY OF LICENSEE DATA, EXCEPT TO THE EXTENT THAT SUCH UNAUTHORIZED ACCESS, USE, CORRUPTION, OR LOSS IS DUE SOLELY TO MATTERMOST’S GROSS NEGLECT OR MISCONDUCT.
6.2 The Product Materials and Services are not designed or intended for use or resale in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Product Materials or Services could lead directly to death, personal injury, or severe physical or environmental damage (“High-Risk Activities”). Accordingly, Mattermost specifically disclaims any express or implied warranty of fitness for High-Risk Activities.
- Limitation of Liability.
7.1 NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 IN NO EVENT WILL MATTERMOST BE LIABLE FOR ANY LOSS OF PROFITS OR LOST REVENUE, OR FOR ANY PUNITIVE OR SPECIAL DAMAGES, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER, AND WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 Maximum Liability. TO THE FULLEST EXTENT ALLOWABLE BY LAW, MATTERMOST’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES UNDER THIS CLOUD AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO MATTERMOST UNDER THIS CLOUD AGREEMENT.
7.4 Without limiting any of the foregoing or any other provision of this Agreement, and to the fullest extent allowable by applicable law, Mattermost shall have no liability to Licensee for any unauthorized access to, or use, corruption or loss of, any personal health information (“PHI”) or personally identifiable information (“PII”) which may be contained in the Licensee Data, except to the extent that such unauthorized access, use, corruption, or loss is judicially determined to be due to Mattermost’s neglect or misconduct or breach of the terms of this Agreement. Despite any other provision of the Agreement, in the case of loss or PHI or PII due to actions or inactions of Mattermost, Licensee’s sole remedy shall be for Mattermost to restore such PHI and /or PII from the latest available backup.
- Intellectual Property Rights Indemnity.
8.1 Indemnification. Subject to each of the other provisions hereof, Mattermost (at its expense) shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that the Mattermost Proprietary Software infringes as of the date of Delivery the copyright, trademark, or US or EU patent of said third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.
8.2 Exceptions. Mattermost shall have no liability to Licensee under this Section:
(a) to the extent any Claim is based on or arises from any Product Materials, or any portion or component thereof, that is: (i) not provided directly to Licensee by Mattermost; (ii) modified by a party other than Mattermost and not at Mattermost’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (iii) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;
(b) to the extent Licensee continues allegedly infringing activity after: (i) being notified thereof; and (ii) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or
(c) from any breach of the Licensee’s obligations under this Cloud Agreement.
8.3 Despite any of the foregoing, Mattermost’s obligations under Section 8.1 shall be valid only if Licensee:
(a) gives notice to Mattermost of any Claim promptly upon becoming aware of the same;
(b) gives Mattermost the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of Mattermost; and
(c) acts in accordance with the reasonable instructions of Mattermost and gives to Mattermost such assistance as it shall reasonably require in respect of the conduct of the said defense.
8.4. In the event of any alleged Intellectual Property infringement, Mattermost shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Product Materials; (b) make such alterations, modifications, or adjustments to the Product Materials so that they become non-infringing without incurring a material diminution in performance or function; or (c) replace the Product Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
9.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential and not disclose to any third party all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Cloud Agreement. At a minimum, the Receiving Party agrees to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the Party takes with its own proprietary information, but in no event will a Party apply less than reasonable precautions to protect such Confidential Information. Confidential Information shall mean any information which, by its nature or circumstances of disclosure, would reasonably be presumed to be confidential. Despite the foregoing, the Product Materials, and each Party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such Party’s Confidential Information. Further, despite any other provision to the contrary, neither Party may disclose the specific terms of this Cloud Agreement, except as required by law.
9.2 Exceptions. Required Disclosures. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the Receiving Party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the Receiving Party with the Disclosing Party’s approval; or (e) is independently developed by the receiving party without any use of Confidential Information of the Disclosing Party. In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
9.3 Collection of Certain Data; Anonymized Use for Analytics. Mattermost may collect data with respect to the aggregate response rate and other aggregate measures of the Licensed Software’s performance, as well as information about Licensee’s activation, configuration, and use of the Licensed Software. Mattermost may use the information collected by such features to verify Licensee’s licensing, provide Support Services, and (solely in an anonymized form) to otherwise improve the Licensed Software and Services.
9.4 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the Disclosing Party’s remedies at law for a breach by the Receiving Party of its obligations hereunder may be inadequate and that the Disclosing Party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).
9.5 Return of Information. Upon expiration or termination of this Cloud Agreement for any reason, the Receiving Party will destroy (or at the request of the Disclosing Party, return) all copies of all Confidential Information of the Disclosing Party in its possession or under its control. Despite the foregoing, the Receiving Party (a) shall not be required to return or destroy copies of the Disclosing Party’s Confidential Information from its disaster recovery and/or business continuity databases, where doing so would be commercially impracticable, and (b) may retain a single archive copy of the Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided that in either case the Receiving Party maintains the Confidential Information in compliance with the terms of this Cloud Agreement until destroyed, which shall occur as soon as reasonably practicable.
- Term and Termination.
10.1 This Cloud Agreement shall continue until terminated in accordance with the provisions of this Section 10.
10.2 This Cloud Agreement, and any license granted thereby, may be terminated:
(a) immediately by either Party if the other Party commits any material breach of any term of this Cloud Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within fifteen (15) days of a written request to remedy the same;
(b) immediately by either Party if: (i) all or a substantial portion of the assets of the other Party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; or (ii) a proceeding is commenced by or against the other Party for relief under bankruptcy or similar laws and such proceeding is not dismissed within one hundred twenty (120) days;
(c) immediately by Mattermost upon its reasonable determination that Licensee’s Use of the Product Materials or Services poses a threat to the secure or reliable provision of Services to other customers, or to the Cloud Infrastructure, or to the data contained therein, or that Licensee’s Use of the Product Materials or Services violates any applicable law or regulation; or
(d) by either Party for convenience upon giving the other Party written notice at least thirty days prior to the requested termination date of the applicable subscription.
10.3 In addition, (i) Licensee may terminate month-to-month Subscriptions by providing written notice of non-renewal to Mattermost at least thirty days prior to the requested termination date of the applicable subscription, and (ii) Licensee may terminate annual or multi-year Subscriptions by providing written notice of non-renewal to Mattermost at least thirty days prior to the end of any then-current term.
10.4 Any termination of this Cloud Agreement pursuant to this Paragraph shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
10.5 Upon termination, upon Licensee’s request, and provided that Licensee has met all of its financial and other obligations under this Cloud Agreement, Mattermost will furnish Licensee with an electronic copy of the Licensee Data, in a form to be determined by Mattermost. Mattermost shall be under no obligation to retain any Licensee Data for more than sixty days following termination of this Cloud Agreement.
10.6 Those provisions, which by their nature survive termination, shall continue after termination or expiration of this Cloud Agreement. Those provisions include, but are not necessarily limited to: Sections 2, 3, 5-7, 9, 10, and 14, and all associated definitions and all accrued rights to payment.
10.7. Termination is not an exclusive remedy for breach of this Cloud Agreement by either Party. All other remedies will be available to the non-breaching Party whether or not the non-breaching Party terminates this Cloud Agreement for breach by the other Party.
- Import and Export Regulations. The Licensed Software and all Updates are subject to U.S. export controls, specifically the Export Administration Regulations. Both Parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Licensed Software or any Update to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations).
- Privacy and Security.
12.1 No Personal Data. Licensee shall not transfer or otherwise make available to Mattermost any personal data or personally identifiable information (as such terms are defined in the GDPR or any other Applicable Privacy Laws) unless Licensee has obtained a valid consent from the relevant data subject in accordance with the terms of the GDPR or any other Applicable Privacy Laws permitting such transfer and the use by Mattermost (being based in the United States) and its subcontractors of such personal data or personally identifiable information as required for the performance of this Cloud Agreement (including Section 9.3 above). In case of breach of this obligation by Licensee, the provisions of Section 8.1 above shall apply.
12.2 Security Standards. Each Party agrees to abide by (i) all applicable local, state, national, and international laws and regulations in connection with providing and using the Services, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the Service and all Applicable Privacy Laws.
- Force Majeure. Neither Party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, requirements or regulations of any civil or military authority.
14.1 Waiver. The waiver by either Party of a breach or default of any of the provisions of this Cloud Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
14.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by electronic mail sent by documented overnight delivery service to the Party to whom the notice is directed, at its address indicated on the Order or as follows for Mattermost: (or such other address as to which the other Party has been notified):
530 Lytton Avenue, Second Floor
Palo Alto, CA 94301 USA
14.3. Invalidity and Severability. If any provision of this Cloud Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Cloud Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
14.4 Successors. This Cloud Agreement shall be binding upon and inure for the benefit of the successors in title of the Parties hereto.
14.5 Assignment and Sublicensing. Licensee shall not assign, transfer or sublicense this Cloud Agreement or any of its rights or obligations hereunder without the prior written consent of Mattermost. Despite the foregoing, either may assign this Cloud Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning Party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise; provided that Licensee may not assign, transfer or sublicense this Cloud Agreement or any of its rights or obligations hereunder to any competitor of Mattermost as determined in Mattermost’s reasonable discretion. In addition, Mattermost may assign its right to payment hereunder or grant a security interest in this Cloud Agreement or such payment right to any third party.
14.6 Headings. Headings to paragraphs or sections in this Cloud Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Cloud Agreement.
14.7 Governing Law. This Cloud Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for any dispute, claim or controversy arising out of or relating to this Cloud Agreement shall be in the State and Federal courts located in San Francisco County, California.
14.8 Third Party Rights. This Cloud Agreement does not, and is not intended to, confer any benefit on, nor create any right exercisable or enforceable by, any third party.
14.9 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Cloud Agreement, the prevailing Party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing Party may be entitled.
14.10 Independent Contractors. The Parties agree that each is an independent contractor and neither Party has the right or authority to assume or create any obligation or responsibility on behalf of the other Party.
14.11 Amendments. This Cloud Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each Party.
14.12 U.S. Government Rights. Mattermost does not develop any technical data or computer software pursuant to this Cloud Agreement. In addition, the Licensed Software and Services are commercial products that were developed at private expense by Mattermost. The Licensed Software and Documentation are “commercial items” as that term is defined at FAR 2.101. If Licensee or a Registered Authorized User is a U.S. Federal Government (Government) Executive Agency (as defined in FAR 2.101), Mattermost provides the Licensed Software and Documentation, including any related software, technology, and/or technical data, in accordance with this Section. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Cloud Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Cloud Agreement. In addition, except under any GSA schedule contract, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Cloud Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Mattermost to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Cloud Agreement.
14.13 Publicity. Licensee grants to Mattermost the right to use Licensee’s company name and logo as a reference for marketing or promotional purposes on Mattermost’s website and in other public or private communications with Mattermost’s existing or potential customers, subject to Licensee’s standard trademark usage guidelines as provided to Mattermost from time-to-time. Mattermost does not want to list licensees who do not want to be listed, so Licensee may send Mattermost an email to [email protected] stating that Licensee does not wish to be used as a reference, allowing Licensee to opt out of this provision, unless Licensee has otherwise expressly agreed to these or other similar rights in a signed Order or other writing as consideration under the Agreement.
THIS CLOUD AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF PURCHASE ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO LICENSEE PURCHASE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS CLOUD AGREEMENT.
“Applicable Privacy Laws” means, in relation to any personal information that is processed in the provision of the Services, the applicable legislation on the protection of identifiable individuals, including where applicable the California Consumer Privacy Act, the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4), the Health Information Portability and Accountability Act of 1996 and the rules promulgated thereunder (“HIPAA”), and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”) and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statues, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities.
“Cloud Infrastructure” means the Licensed Software, and the computing, storage, networking, and other hardware and software infrastructure used in providing the Services and the Product.
“Delivery” or “Delivered” means the availability of the Product Materials by Mattermost to the Licensee via electronic means, without regard to when Licensee actually accesses or Uses such Product Materials.
“Documentation” means the instruction manuals, user guides, training materials or other materials and information made available to Licensee from time to time by Mattermost, in either printed or electronic form.
“Licensed Software” means the software licensed by Licensee pursuant to this Cloud Agreement.
“Licensee Data” means all information, content and data provided by or on behalf of Licensee and made available or otherwise distributed through Use of the Licensed Software and Services and stored by Licensee or at Licensee’s direction on the Cloud Infrastructure.
“Normal Business Hours” means 9AM to 5PM, Pacific Time, Monday through Friday, excluding Mattermost holidays.
“Order” means any document agreed to between the parties which sets forth the Product Materials licensed by the Licensee and any relevant pricing and applicable additional restrictions (if any), including (i) any Mattermost quote which the parties agree to make a part of this Cloud Agreement, (ii) any Licensee purchase order accepted by Mattermost, and (iii) any invoice issued by Mattermost and accepted by Licensee. An Order may be amended only by a writing signed by authorized representatives of both parties. Multiple Orders may be entered and agreed to under this Cloud Agreement.
“Product Materials” means the Licensed Software and the Documentation.
“Proof-of-Concept License” means a limited term license issued to Licensee for longer than 30 days, but not longer than 90 days, for the sole purpose of Licensee to trial the Product Materials in order to determine whether to purchase a Subscription. The term of the Proof-of-Concept License (the “Proof-of-Concept Period”) will be set forth in the applicable Order. Any extensions of a Proof-of-Concept License must be mutually agreed upon, in writing, by the parties.
“Public Software License” means any license that provides for free software, open-source software, or similar licensing model, including but not limited to the GNU Lesser/Library GPL (LGPL), the MIT license, the Apache license, the BSD License and other similar licenses. A list of components licensed under Public Software licenses and included in the Licensed Software can be viewed at https://about.mattermost.com/components/.
“Registered Authorized User” means any employee, agent, supplier or contractor of Licensee who is authorized to access and Use the Product Materials or Services via the Internet address provided to Licensee by Mattermost and exercise the rights licensed by Licensee under this Agreement. Each Registered Authorized User must use a unique identity to access and Use the Licensed Software unless otherwise licensed.
“Services” means Licensed Software and related services accessed by Registered Authorized Users, in a manner consistent with Mattermost’s published Documentation and this Agreement.
“Subscription” means licenses to the Product Materials, Updates and Support. A Subscription includes access to currently supported versions of the Licensed Software for the Subscription Term.
“Support” shall mean those terms set forth at https://about.mattermost.com/support.
“System Console” is the administrative section of the Licensed Software in which Licensee’s system administrator can manage the system settings.
“Term” means the length of time these General Terms and Conditions shall govern over all Orders made by Licensee. The Term shall commence as of the Effective Date as defined above.
“Trial License” means a limited term license issued to Licensee for no more than 30 days, for the sole purpose of Licensee to trial the Product Materials in order to determine whether to purchase a Subscription. The term of the Trial License (the “Trial Period”) will be set forth in the applicable Order. Trial Licenses may not be renewed at the expiration of the Trial Period.
“Update” means such enhancements, modifications, or additions to the Licensed Software as may be made available from time to time by Mattermost to Licensee.
“Use” shall mean the legal use by Licensee of the Product Materials and/or Services in accordance with the terms and condition of this Cloud Agreement to manage internal corporate communications.