Mattermost Enterprise Edition Subscription Terms
CUSTOMER’S USE OF THE MATTERMOST ENTERPRISE EDITION SOFTWARE PROVIDED BY MATTERMOST, INC. (“Mattermost”) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SOFTWARE IN ANY WAY. THESE TERMS AND THE PRICING ARE CONSIDERED AN OFFER, AND ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS UNLESS AGREED OTHERWISE BY MATTERMOST IN A BINDING WRITTEN AGREEMENT. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
1 LICENSE AND SUPPORT
1.1 Subject to the Customer’s compliance with the terms and conditions of this Agreement, Mattermost hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to
run and use the number of concurrent instances of the Software to manage internal corporate communications and invite external users to communicate via the number of unique users (employees, contractors, and invited third parties) for which Customer has a current subscription to the Mattermost Enterprise Edition; and
(2) use the documentation, training materials or other materials supplied by Mattermost the “Other Mattermost Materials”)
to enable the internal use specified above
1.2 Subject to Customer’s compliance with the terms and conditions of this Agreement, Mattermost will provide reasonable support to Customer for the Software as specified in the Mattermost support terms and conditions for your Mattermost Enterprise Edition license level as described at http://about.mattermost.com/support.
2 RESTRICTIONS AND RESPONSIBILITIES
2.1 Except as expressly authorized in Section 1.1, Customer will not, and will not permit any third party to: reverse engineer (except as expressly required by law) or otherwise derive the source to the Software, use the Software for any purpose other than as specifically authorized in Section 1, or in such a manner that would enable access to the Software by anyone for whom Customer has not purchased a current subscription; use the Software or any other Mattermost software for timesharing or service bureau purposes or for any purpose other than its own internal use (including without limitation, sublicensing, distributing, selling, reselling any of the foregoing); use the Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or use the Software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of Mattermost, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
2.2 The Software is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as (but not limited to) in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Software 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.
2.3 Customer will cooperate with Mattermost in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Mattermost may reasonably request. Customer will cooperate with Mattermost in establishing a password or other procedures for verifying that only designated employees or service providers of Customer have access to any administrative functions of the Software. Customer shall maintain during the term of this Agreement and through the end of the third year after the date on which the final payment is made under this Agreement, books, records, contracts and accounts relating to the payments due Mattermost under this Agreement (collectively, the “Customer Records”). Mattermost may, at its sole expense, upon 30 days’ prior written notice to Customer and during Customer’s normal business hours and subject to industry-standard confidentiality obligations, audit the Customer Records only to verify the amounts payable under this Agreement. If an audit reveals underpayment, then Customer shall promptly pay the deficiency to Mattermost plus late fees pursuant to Section 5.2. Mattermost shall bear the cost of an audit unless the audit reveals underpayment by more than 5%, in which case Customer shall promptly pay Customer for the cost of the audit.
2.4 Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Software and the commercial terms of any executed supplementary agreement to these terms are Mattermost Proprietary Information.
3.2 The Receiving Party agrees:
(i) not to divulge to any third person any such Proprietary Information,
(ii) to give access to such Proprietary Information solely to those employees or contractors with a need to have access thereto for purposes of this Agreement, and
(iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary 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 Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document
(a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or
(b) was in its possession or known by it prior to receipt from the Disclosing Party, or
(c) was rightfully disclosed to it without restriction by a third party, or
(d) was independently developed without use of or access to any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Mattermost may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Software’ performance and Customer’s usage of the Software; provided that Mattermost will not identify Customer as the source of any such data without Customer’s prior written consent.
3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach Sections 1 or 2 of this Agreement and that the non-breaching party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.
3.4 The Software contains features that allow the Software to report information about your activation, configuration, and use of the Software to Mattermost. You agree and understand that if you enable or choose not to disable such features, Mattermost will receive the information collected by such features and use it to verify your licensing, provide technical support, and otherwise improve the Software.
4 INTELLECTUAL PROPERTY RIGHTS
4.1 As between the parties, Mattermost alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Software and any suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Customer or any third party relating to the Software, which are hereby assigned to Mattermost. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software, or any intellectual property rights.
4.2 Customer 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 Software. Additionally, Customer agrees to reproduce and include Mattermost’s (and its licensors’) proprietary and copyright notices on any copies of the Software, or on any portion thereof, including reproduction of the copyright notice.
4.3 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all information, content and data provided by or on behalf of Customer and made available or otherwise distributed through use of the Software (“Content”) and the intellectual property rights with respect to that Content. Customer will indemnify, defend and hold Mattermost harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such claim related to the Content, as incurred. Mattermost may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.
5 PAYMENT OF FEES
5.1 Customer will pay Mattermost the applicable fees as set forth at http://about.mattermost.com/pricing/ or on a mutually executed purchase order or other binding written agreement between the parties (the “Pricing”) for the Software selected and/or used by Customer (the “Fees”) without any right of set-off or deduction. To the extent applicable, Customer will pay Mattermost for additional services, such as integration fees or other consulting fees. Customer agrees to pay a retroactive charge for any unique users added during the past year over and above the licensed total unique users in Customer’s then current paid subscription. The retroactive charge per user in excess of the original license purchase will the initial license purchase cost per user.
5.2 All payments will be made in accordance with the payment schedule and the method of payment set forth in the Pricing. If not otherwise specified, payments will be due within thirty (30) days of invoice (including electronic invoice via website or other electronic communication). Except as described in this Section, all Fees paid and/or due hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.
5.3 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Mattermost’s net income) unless Customer has provided Mattermost with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Mattermost on account thereof.
6.1 This Agreement shall continue until terminated in accordance with this Section 6. for the full term established by Customer’s commitment via the online sign-up process or on a mutually executed purchase order, and will auto-renew for additional terms of equal length to the previous term unless Customer sends a notice of its intention not to renew at least thirty (30) days prior to the end of the then current term.
6.2 Customer may terminate its use of the Mattermost Software at any time for convenience by fully deleting any and all copies of Mattermost Software, provided that in no event shall any termination for convenience modify the subscription commitment made by Customer. Either party may terminate this Agreement immediately upon 15 days’ written notice to the other party in the event of any material breach of this Agreement (including without limitation, any breach of Section 2.2 and/or failure to pay any amounts when due hereunder) by such party where such material breach is not cured during such notice period.
6.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
6.4 Customer’s licenses granted hereunder shall terminate upon any termination of this Agreement. The following Sections will survive any termination of this Agreement: 2 through 6 (except for Section 4.3), and 8 through 11.
7 WARRANTY; CLIENT SOFTWARE SECURITY
Mattermost represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) other than license renewal enforcement tools, it will not knowingly include, in any Mattermost software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Mattermost fails to comply with the warranty in this Section, Customer may promptly notify Mattermost in writing of any such noncompliance. Mattermost will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8 WARRANTY DISCLAIMER
EXCEPT AS EXPLICITLY STATED HEREIN, THE SOFTWARE, SOFTWARE AND MATTERMOST PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. MATTERMOST AND ITS LICENSORS HEREBY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9 LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO MATTERMOST HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10 U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Software or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Software is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Mattermost are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. Any preprinted, additional, or conflicting terms set forth on any purchasing document submitted by Customer or its representatives in connection with this Agreement are void and unenforceable. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Mattermost will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.