1. Service Agreement

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES AND/OR SOFTWARE OFFERED BY TONOMI, INC., A DELAWARE COMPANY (“TONOMI”). BY USING THE SOFTWARE AND/OR SERVICES IN ANY MANNER, YOU (“CUSTOMER”) AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY AND A PARTY TO THE TONOMI SERVICE AGREEMENT (“AGREEMENT”), AND ANY TERMS INCLUDED IN THE ORDER FORM(S) THAT YOU HAVE OR WILL EXECUTE FROM TIME TO TIME WITH TONOMI (EACH, AN “ORDER FORM”), WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1.1. Recitals

Tonomi, Inc., a Delaware company (“Tonomi”) makes available a SaaS solution known as “Tonomi Adaptive PaaS” that enables development and operations teams to automate the process of incremental, continuous software release, including application deployment, configuration management and operation across different infrastructure and platform providers. (“Tonomi Platform”). Tonomi Platform is a combination of Software-as-a-Service (SaaS) and a network of downloadable Fabric Controllers that can integrate with the systems located inside the Customer’s datacenters. Customer desires to have Tonomi provide Customer with the right to access and use the Tonomi Platform, and Tonomi desires to provide Customer with the right to access and use the Tonomi Platform, subject to and in accordance with the terms and conditions of this Agreement.

1.2. Definitions

  • “Authorized User” means any individual who has been authorized in accordance with the terms of this Agreement to access and use the Tonomi Platform. Authorized Users may include, without limitation, Customer employees and independent contractors engaged by Customer.
  • “Infrastructure Service” shall mean the compute capacity, data storage, data transmission, network and related infrastructure services made available by an infrastructure service provider.
  • “Intellectual Property Rights” means patent rights, copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
  • “Order Form” shall mean a written document signed by Customer and Tonomi, or an electronic form submitted by Customer and accepted by Tonomi, that identifies the services that Customer has agreed to obtain from Tonomi, corresponding Terms, Fees for and Service Levels for such services.
  • “Third Party Products” means the Infrastructure Service and any third party software, applications, or data which use or are available through the Tonomi Platform and which require Customer to agree to and comply with a license agreement or terms of service associated with such products or services.

1.3. Services

  1. Scope. Subject to Customer’s compliance with the terms and conditions of this Agreement, Tonomi will provide Customer with access to the Tonomi Platform, documentation and support systems, as more specifically defined in Order Forms. In the event of conflict between this Agreement and any Order Form, the terms and conditions of this Agreement shall prevail.
  2. Authorized Usage. Customer may access and use the Tonomi Platform solely for its internal business purposes and solely by the number of Authorized Users in accordance with the Order Form, provided that if no number of Authorized Users is stated in the Order Form then the fees will be based on then-current restrictions published by Tonomi. Customer will not permit access to or use of the Tonomi Platform by anyone other than Authorized Users.
  3. Restrictions. Customer will not: (i) sell, resell, rent or lease the Tonomi Platform; (ii) reverse engineer the Tonomi Platform; (iii) attempt to modify the Tonomi Platform; or (iv) use the Tonomi Platform to store any data or information that is unlawful. Customer may not access or use (or permit a third party to access or use) the Tonomi Platform for purposes of monitoring the availability, performance or functionality of the Tonomi Platform or for any other benchmarking or competitive purposes. Customer will not interfere with or disrupt the Tonomi Platform or attempt to gain access to any related systems or networks to which access is restricted.
  4. Infrastructure Services. Customer is responsible for selecting one or more Infrastructure Services. Customer’s use of a Infrastructure Service is subject to the third party provider’s fees and terms and conditions. Customer agrees to pay any applicable fees for the Infrastructure Services and comply with the then-current terms and conditions related to the Infrastructure Service. Customer’s breach of the terms and conditions regarding the Infrastructure Service will be considered a breach of this Agreement.
  5. Third Party Products. Customer’s use of Third Party Products is subject to the additional terms and conditions of the third party providing such Third Party Products and may be subject to additional Fees. Customer agrees to comply with all such terms and pay any applicable Fees associated with Third Party Products.
  6. No Responsibility. THE INFRASTRUCTURE SERVICES AND THIRD PARTY PRODUCTS ARE NOT TONOMI PRODUCTS AND ARE NOT PART OF THE Tonomi Platform. TONOMI IS NOT RESPONSIBLE FOR THE INFRASTRUCTURE SERVICE OR THIRD PARTY PRODUCTS, OR FOR ANY ACTS OR OMISSIONS OF THE THIRD-PARTY PROVIDER OF THE INFRASTRUCTURE SERVICE OR THIRD PARTY PRODUCTS. CUSTOMER ACKNOWLEDGES THAT THE PROVIDER OF THE INFRASTRUCTURE SERVICE MAY IMPLEMENT PROCEDURES THAT WOULD MAKE IT DIFFICULT OR IMPOSSIBLE TO ACCESS CUSTOMER’s DATA OR THE RESOURCES MADE AVAILABLE VIA THE INFRASTRUCTURE SERVICE IN CERTAIN CIRCUMSTANCES (E.G., IN THE CASE OF A VIRUS, DENIAL-OF-SERVICE, OR SIMILAR ATTACK; TRANSMISSION OR STORAGE OF INFRINGING OR ILLEGAL CONTENT; USE FOR BULK EMAIL; USE THAT COULD OR DOES HARM THE THIRD PARTY’S NETWORKS OR SERVERS OR COMPROMISE SECURITY).
  7. Tonomi Fabric Controller. “Tonomi Fabric Controller” means certain proprietary Tonomi software, that is necessary for, and supports, the operation of the Tonomi Platform. Customer acknowledges that, in order to access and use the Tonomi Platform hereunder, it may be required to download and install the Tonomi Fabric Controller. Customer further acknowledges that, in order to download and install the Tonomi Fabric Controller, it will be required to accept and agree to be bound by the terms of Tonomi’s then-current End User Software License Agreement (the “Tonomi EULA”), distributed with the Fabric Controller. Nothing in this Agreement grants to Customer rights of any kind in, to or with respect to the Tonomi Fabric Controller.

1.4. Customer Obligations

  1. Cooperation and Assistance. Customer will at all times provide Tonomi with good faith cooperation and assistance and make available such information, facilities, equipment and personnel as may be reasonably required by Tonomi in order to provide Customer with the Tonomi Platform.
  2. Security. Customer will keep confidential and not disclose to any third parties, and will ensure that all Authorized Users keep confidential and do not disclose to any third parties, any user IDs, account numbers, passwords or other similar information for the Tonomi Platform.
  3. Enforcement. Customer will ensure that Authorized Users comply with the terms and conditions of this Agreement. Customer will promptly notify Tonomi of any suspected or alleged breach of this Agreement and will cooperate with Tonomi with respect to: (i) any investigation by Tonomi of any suspected or alleged violation of this Agreement or the Tonomi EULA; and (ii) any action by Tonomi to enforce the terms and conditions of this Agreement or the Tonomi EULA. Tonomi may suspend or terminate any Authorized User’s access to the Tonomi Platform upon notice to Customer in the event that Tonomi reasonably determines that such Authorized User has breached this Agreement or the Tonomi EULA.
  4. Access Keys. Customer may elect to provide Tonomi access to keys, credentials, or passwords (“Keys”) to access Customer’s applications and/or technology infrastructure. By providing Tonomi any such Keys, Customer authorizes Tonomi to use those Keys and to access Customer applications and infrastructure for the purpose of providing services under this Agreement.

1.5. Fees

  1. Fees. In consideration for Tonomi providing the Tonomi Platform, Customer will pay Tonomi the fees as set forth in Order Form, provided that if no fees are stated in the Order Form then the fees will be based on then-current pricing plans published by Tonomi.
  2. Payment Terms. Unless Customer prepays for the Tonomi Platform as specified in the Order Form, Tonomi will invoice Customer monthly for the Fees due and payable for that month. Customer will pay each such invoice within thirty (30) days following the date thereof.
  3. Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes and duties assessed in connection with this Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Tonomi’ net income.
  4. Interest. All amounts not paid when due under this Agreement will accrue interest daily (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full.

1.6. Ownership

  1. Reservation of Rights. Customer acknowledges that, subject to the limited rights expressly granted hereunder, Tonomi exclusively own all rights, title and interests in and to the Tonomi Platform, including all and all Intellectual Property Rights therein.
  2. Feedback. Tonomi shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and Customer’s Authorized Users relating to the Tonomi Platform. Notwithstanding anything to the contrary in this Agreement, Tonomi also shall be free to use for any purpose the Residuals resulting from access to or work with the Confidential Information of Customer, including but not limited to use of “residuals” in development, manufacture, marketing and maintenance of Tonomi’s own products and services, provided that this use right does not and shall not represent a license to any valid patent, trade secret, or copyright of Customer. The term “residuals” means Confidential Information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how, or techniques contained therein.

1.7. Confidentiality

  1. Definition. “Confidential Information” means: (i) information that is disclosed in written form and that is clearly labeled as proprietary, confidential or with words of similar meaning; (ii) information that is disclosed orally or visually and that is identified as proprietary or confidential at the time of its disclosure and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (iii) any information that due to its nature or the circumstances of disclosure would reasonably be deemed confidential. The terms and conditions of this Agreement will be deemed the Confidential Information of both parties.
  2. Use and Nondisclosure. During the term of this Agreement and for a period of three (3) years thereafter, each party will not use the other party’s Confidential Information for any purpose other than for the performance and enforcement of this Agreement and will not disclose the other party’s Confidential Information to any party other than to those of its employees and contractors who need to know such Confidential Information for a party’s performance and enforcement of this Agreement; provided that each such employee and contractor is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Each party will use the same efforts to protect the confidentiality of the other party’s Confidential Information that it ordinarily uses to protect the confidentiality of its own confidential information of like importance, but in no event less than reasonable efforts.
  3. Exclusions. The obligations and restrictions in Section 1.7.2 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party prior to the disclosure of such information from the disclosing party; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
  4. Permitted Disclosure. The foregoing provision of this Section 1.7 will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future provider’s of venture capital and/or potential private investors in or acquirers of such party.

1.8. Warranty and Support

  1. Limited Warranty. Tonomi warrants to Customer that the Tonomi Platform will provide the functionality specified in Tonomi’s then-current technical documentation for the Tonomi Platform, which documentation, is available at http://docs.tonomi.com. In the event that the Tonomi Platform fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy and Tonomi’s sole and exclusive liability for any breach of such warranty, Tonomi will modify the Tonomi Platform to correct the non-conformity.
  2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 1.8.1, TONOMI DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT AND THE Tonomi Platform, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TONOMI DISCLAIMS ANY WARRANTY THAT THE Tonomi Platform WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
  3. Support. Tonomi will provide Customer and Authorized Users with support for the Tonomi Platform in accordance with the terms set forth in Order Form.

1.9. Indemnification

  1. Indemnification by Customer. Customer will defend Tonomi against any action or suit brought against Tonomi by a third party in connection with Customer’s use of the Tonomi Platform (other than a claim for which Tonomi is responsible under Section 1.8.1), and will indemnify and hold Tonomi harmless for any costs and expenses incurred by Tonomi and any damages awarded in final judgment or paid in settlement by Tonomi with respect to any such claim; provided that Tonomi: (i) promptly gives Customer written notice of the claim; (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases Tonomi from all liability); and (iii) provides Customer with all information and assistance that is reasonably necessary for the defense and settlement of the claim, at Customer’s expense. Tonomi reserves the right to retain counsel, at Tonomi’s sole expense, to participate in the defense of any such claim.

1.10. Limitation of Liability

  1. Exclusion of Damages. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 1.8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY IINCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
  2. Total Liability. IN NO EVENT WILL TONOMI’S TOTAL LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE Tonomi Platform WILL EXCEED TOTAL FEES PAID BY THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO ANY LIABILITY.
  3. Acknowledgement. The parties acknowledge that the limitations and exclusions contained in this Section 1.10 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement and the payments made hereunder. Accordingly, the parties agree that such limitations and exclusions will survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.

1.11. Term and termination

  1. Term. Subject to earlier termination as provided below, the initial term for each Subscription Account shall be set forth in the Order Form, provided that if no initial term is stated in the Order Form then the initial term shall be one (1) calendar month. Following completion of the initial term, this Agreement shall automatically renew for an additional one-month periods (each, a “Renewal Term” and collectively with the initial term, the “Term”), unless either party has terminated this Agreement by giving written notice of termination to the other party at least thirty (30) days prior to the end of the then-current Term. Upon termination of this Agreement by Customer or Tonomi, Tonomi may retain any payments made to Tonomi and all unpaid fees, including fees for the remainder of the then-current Term, will become immediately due and payable.
  2. Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party.
  3. Effect of Termination. Upon any expiration or termination of this Agreement: (i) Customer’s and its Authorized Users’ right to access and use the Tonomi Platform will immediately terminate and Customer and its Authorized Users will immediately cease all use of the Tonomi Platform; and (ii) each party will return and make no further use of any Confidential Information of the other party.
  4. Termination in the Event of Default. Tonomi may suspend Customer’s rights to use Tonomi Platform (in whole or in part), and/or terminate this Agreement fifteen (15) days following Tonomi’s provision of notice to Customer if Customer is in default of any payment obligation with respect to any of the services or if any payment mechanism Customer has provided to Tonomi is invalid or charges are refused for such payment mechanism, and Customer fails to cure such payment obligation default or correct such payment mechanism problem within such 15-day period. For the avoidance of doubt, Customer’s payment obligations under this Agreement shall not be suspended or terminated if Tonomi suspends or terminates this Agreement pursuant to Section 1.11.2.
  5. Termination by Necessity. Tonomi may suspend or terminate Customer’s access to Tonomi Platform upon written notice in order to: (a) prevent damage to or degradation of, Tonomi Platform; (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (c) otherwise protect Tonomi from potential legal liability. If suspended, Tonomi will promptly restore use of Tonomi Platform to Customer as soon as the event giving rise to the suspension has been resolved to Tonomi’s satisfaction.
  6. Loss of Access. Upon termination of the Agreement for any reason, Customer will have no further right to access and use Tonomi Platform. IN NO EVENT WILL TONOMI HAVE ANY LIABILITY TO CUSTOMER OR ITS CUSTOMERS RELATED TO CUSTOMER’S LOSS OF ACCESS TO INFRASTRUCTURE SERVICES, INCLUDING ANY CUSTOMER DATA THEREIN, FOLLOWING SUSPENSION OF SERVICES OR TERMINATION OF THIS AGREEMENT.
  7. Survival. The rights and obligations of the parties under Sections 1.3.6, 1.5, 1.6, 1.9, 1.11.3, 1.11.6 and 1.12 will survive any expiration or termination of this Agreement.

1.12. General

  1. Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be void. “Change of Control” means, with respect to a party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
  2. Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions.
  3. Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
  4. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
  5. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing. Such notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by fax or (v) by e-mail and such notices shall be addressed as specified on then-current Order Form. Notices so given shall be effective upon (i) receipt by the party to which notice is given, or (ii) on the fifth day following mailing, whichever occurs first. Provided that if no address is stated in the Order Form then the notices made by Tonomi will be provided to Customer via the email address provided to Tonomi in Customer’s registration for the Tonomi Platform or in any updated email address Customer provides to Tonomi in accordance with standard account information update procedures Tonomi may provide from time to time. It is Customer’s responsibility to keep the email address current and Customer will be deemed to have received any email sent to any such email address, upon Tonomi sending of the email, whether or not Customer actually receives the email.
  6. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
  7. Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
  8. Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will promptly notify the other party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
  9. Entire Agreement. This Agreement together with the exhibits and Order Forms hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
  10. Non-Exclusive Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
  11. Construction of Agreement. The parties acknowledge and agree that each has been represented by legal counsel of its choice throughout the negotiation and drafting of this Agreement, that each has participated in the drafting thereof, and that this Agreement will not be construed in favor of or against either party solely on the basis of a party’s drafting or participation in the drafting of any portion of this Agreement.
  12. Changes to Agreement. Tonomi may add or modify the terms of this Agreement by providing notice to Customer. Such modifications will deemed to be effective at the beginning of the next Renewal Term.