Engine Yard, Inc.

Engine Yard Cloud Terms of Service

These Engine Yard Cloud terms of service ("Terms of Service") govern the provision by Engine Yard, Inc. ("Engine Yard") to you (if you are accepting these Terms of Service in your individual capacity) or the company of which you are a duly authorized employee or agent ("Customer") of Engine Yard's Engine Yard Cloud platform and application hosting services for such platform (such platform and services, collectively, the "Services") made available on its website located at http://www.engineyard.com/ (or any successor URL controlled by Engine Yard) ("the Website"), and Customer's usage of the same. By using the Services, Customer agrees to be bound by these Terms of Service.

1. Services. Engine Yard shall use commercially reasonable efforts to provide the Services. Support services are defined in the Engine Yard Support Policies section of the Website at http://www.engineyard.com/products/support-policies, as updated from time to time based on Engine Yard's then-current business practices, and are available for purchase at various tiers separately from the Services in accordance with Engine Yard's then-current pricing for such support services.
2. Payments.
   • (a) Fees. Customer agrees to pay Engine Yard's then-current pricing for the Services. Such fees shall accrue based on Customer's usage of the Services. Engine Yard shall automatically bill Customer's credit card based on Customer's usage of the Services during each month, and Engine Yard shall send a sales receipt to Customer for the same via email. Unless otherwise set forth in a Service Order Form, all payments from Customer to Engine Yard in connection with this Agreement must be made in United States dollars.
   • (b) Collections. Engine Yard may suspend any or all Services, or immediately terminate this Agreement, if payment for any Service is rejected or declined or becomes the subject of a credit card chargeback. Customer agrees to pay Engine Yard's then-current reinstatement fee following a suspension of Services resulting from any such event. Engine Yard may charge interest on amounts that are overdue as a result of any such event at the lesser of 1.5% per month or the maximum rate permitted by law, plus all reasonable expenses and costs of collection (including collection agency fees, attorney fees and court costs).
   • (c) Termination. Without limiting any other remedy available to Engine Yard, if this Agreement expires or terminates for any reason, Customer shall pay all unpaid fees for Services related to periods up to and including the date of expiration or termination, and Engine Yard may automatically bill Customer's credit card for such amounts.
   • (d) Taxes. Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on any of the Services under this Agreement ("Taxes"). Customer shall be liable for and shall pay any and all such Taxes and related charges, however designated, imposed on the provision of the Services (excluding taxes based solely on Engine Yard's net income) regardless of whether Engine Yard fails to collect the tax at the time the related Services are provided. When Engine Yard has the legal obligation to pay or collect such Taxes, the appropriate amount shall be paid by Customer and Engine Yard may automatically bill Customer's credit card for such amount, unless Customer provides Engine Yard with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Engine Yard original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.
3. Acceptable Use.
   • (a) Prohibited Behavior. Customer shall not, and shall not permit any of Customer's users of Customer's applications hosted by Engine Yard as part of the Services (such applications, "Customer Applications", and such users, "Users") or any other third party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Engine Yard to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Engine Yard or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Customer Application or Services; (ii) interference with others' usage of the Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software unless (1) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (2) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft's "add/remove" tool); (vi) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right; (vii) collection, storage, publication, transmission, viewing or other use of any content that is (1) legally obscene, (2) constitutes or promotes child pornography, (3) is in Engine Yard's opinion excessively violent, incites violence, threatens violence or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person's privacy, or (6) creates a safety or health risk to an individual or the public; (viii) any other activity that places Engine Yard in the position of fostering, or having liability for, illegal activity in any jurisdiction; or (ix) any activity that violates the acceptable use policy or similar set of terms of any provider of any third party service that is a component of the Services (such services, "Third Party Services", and such providers, "Third Party Service Providers") that has been made available to Customer; or (x) attempting to probe, scan, penetrate or test the vulnerability of an Engine Yard system or network or to breach Engine Yard's security or authentication measures, whether by passive or intrusive techniques. If any IP address corresponding to any Customer Application becomes listed on Spamhaus, Spews, NJABL or any other reputable abuse database, Customer will be deemed to be in breach of this Section 3(a), regardless of whether or not the IP numbers were listed as a result of Customer's actions. Further, if any Third Party Service Provider's acceptable use policy or similar set of terms changes, Customer shall be bound by such revised policies or terms upon notice thereof. Engine Yard may suspend the provision of Services to Customer if Customer or a User engages in any of the foregoing activities.
   • (b) Security. Customer shall take reasonable security precautions in connection with its use of the Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Services and shall change its passwords periodically. If the Customer Application is hacked or otherwise accessed by a third party without authorization, Engine Yard may take the Customer Application offline until the intrusion is resolved.
   • (c) Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Customer Application and Services, including the CAN-SPAM Act of 2003 and all other laws and regulations applicable to bulk or commercial email. Engine Yard may monitor Customer's compliance and may block the transmission of email or other content that in Engine Yard's opinion violates any such law or regulation or otherwise impose any liability on Engine Yard.
   • (d) Cooperation with Investigations and Legal Proceedings. Engine Yard may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or Users that Engine Yard believes violates applicable criminal law, and (ii) provide any information it has about Customer or its Users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
   • (e) Other. For Customer Applications, Customer must have valid and current information on file with its domain name registrar and may only use IP addresses assigned to it by Engine Yard.
4. Customer Application; Customer Account. Customer is solely responsible for its Customer Application, including for (i) controlling the access to, and use and security of, the Customer Application and the data residing in or processed via the Customer Application, (ii) maintaining the security of the passwords and other measures used to protect access to Customer's Engine Yard account and (iii) all instructions provided to Engine Yard through Customer's account, whether or not authorized by Customer.
5. Suspension of Services. Engine Yard may suspend the provision of Services to Customer or remove any data or content transmitted via the Services without liability (i) if Engine Yard reasonably believes that any Service is being used in violation of this Agreement or applicable law, (ii) if requested by a law enforcement or government agency or otherwise in order to comply with applicable law, provided that Engine Yard shall use commercially reasonable efforts to notify Customer prior to suspending Services as permitted under this Agreement, or (iii) as otherwise specified in this Agreement. Information on Engine Yard's servers may be unavailable to Customer during a suspension of Services.
6. Warranties. Customer represents and warrants to Engine Yard that (i) the information Customer has provided for the purpose of establishing an account with Engine Yard is complete and accurate, and (ii) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information during the term of this Agreement
7. Indemnification. Customer shall defend, indemnify and hold harmless Engine Yard from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys' fees) brought or claimed by a third party arising out of or related to any of the following: (i) actual or alleged use of the Services (including the Customer Application) in violation of this Agreement or applicable law by Customer or any Users (including any actual or alleged infringement or misappropriation of third party intellectual property rights by the Customer Application or arising from data or other content posted or stored on the Services or the Customer Application by Customer or its Users); (ii) any dispute between Customer and its customers, contractors or Users; or (iii) the operation or use of any Customer Application or any data or content contained therein or transmitted thereby (including any breach of any terms of use or service, or license or other agreements, of any Third Party Service Provider by Customer or that is caused by Customer). Engine Yard shall notify Customer of any indemnified claim under this Section 7 and provide Customer at Customer's expense with information and cooperation as necessary for Customer to defend Engine Yard from such claim. Customer shall not settle any indemnified claim under this Section 7 without the prior consent of Engine Yard, which shall not be unreasonably withheld.
8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED "AS IS" AND ENGINE YARD DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. ENGINE YARD DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER'S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability. IN NO EVENT SHALL ENGINE YARD OR ANY OF ITS AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS OR SUPPLIERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES ENGINE YARD AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ENGINE YARD OR ANY OF ITS AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS OR SUPPLIERS, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), SHALL NOT EXCEED THE FEES RECEIVED BY ENGINE YARD IN THE THREE (3) MONTHS PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND ABSENT SUCH LIMITATIONS ENGINE YARD WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT.
10. Termination.
    • (a) Customer. Customer may terminate this Agreement upon written notice to Engine Yard and shall pay all amounts due for Services through the effective date of termination in accordance with Section 2(c).
    • Engine Yard. Engine Yard may terminate this Agreement without liability as follows: (i) in accordance with Section 2(b); (ii) upon notice if Customer materially violates any other provision of this Agreement and fails to cure the violation within 30 days of a written notice from Engine Yard; (iii) upon 1 Business Day notice if Customer uses the Services in violation of a material term of this Agreement more than once (after having received notice from Engine Yard regarding the initial violation); or (iv) upon 5 Business Days notice if Engine Yard is threatened with a legal claim for intellectual property infringement related to the provision of a Service and is unable through commercially reasonable efforts to obtain a license or modify such Service in a way that avoids an ongoing risk of liability. A "Business Day" shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
11. Use of Data; EU Data Subjects; Security.
    • (a) Customer Data. Engine Yard may use, process, transfer and disclose information or data of Customer and its Users that is stored in a Customer Application or otherwise as part of the Services (collectively, "Customer Data") only to the extent necessary to provide the Services; provided that Engine Yard may also disclose Customer Data (i) to Engine Yard's subcontractors in connection with the provision of Services (provided such subcontractors are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include Direct Customer Information (as defined below).
    • (b) Direct Customer Information. Engine Yard's use and disclosure of Customer contact, payment, financial and similar information collected by Engine Yard directly from Customer ("Direct Customer Information") is governed by Engine Yard's Privacy Policy located at http://www.engineyard.com/legal/privacy. In addition, Engine Yard may transfer Customer Data and Direct Customer Information to a third party in connection with a merger or sale of Engine Yard's business or assets, in which case the resulting transferee will be permitted to obtain and use such information subject to the terms of this Agreement and Engine Yard's Privacy Policy.
    • (c) EU Data Subjects. If Engine Yard receives any Customer Data regarding individuals resident in the European Union ("EU Data Subjects") from Customer or its Users in connection with the Services, including any such Customer Data that may be collected by or stored in the Customer Application or otherwise hosted on servers owned or controlled by Engine Yard, Customer agrees: (i) that Customer is the data controller with respect to such Customer Data; and (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such Customer Data, including obtaining all necessary consents from relevant EU Data Subjects and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights under the EU Data Protection Directive. Engine Yard will act as the data processor of such Customer Data and in that capacity will assist Customer in enabling it to comply with the EU Data Protection Directive as set forth in Engine Yard's EU Safe Harbor Privacy Policy located at http://www.engineyard.com/legal/eusafeharborprivacypolicy.
    • (d) Data Security. Engine Yard will use commercially reasonable efforts to prevent the unauthorized access, use or disclosure of Customer Data and Direct Customer Information located on Engine Yard servers, including the implementation of industry-standard measures designed to maintain the security of such data. Customer acknowledges, however, that Engine Yard cannot guarantee the security of such data given the nature of the Internet.
12. Third Party Services and Separate Products.
    • (a) Third Party Terms; Disclaimer. Certain components of the Services are comprised of Third Party Services, and Engine Yard may perform its obligations hereunder through third party providers of such Third Party Services, which may include Amazon.com, Inc. or one of its affiliates ("Amazon"). In addition, Engine Yard may from time to time make available to Customer certain third party software, services, or other products that are not included as part of the Services ("Separate Products") and/or may provide support to Customer in relation to those Separate Products. For all Third Party Services and Separate Products, Customer shall agree to terms of use or service, or license or other agreements, applicable thereto (e.g., the Amazon Web Services Customer Agreement located at http://aws.amazon.com/agreement/ , including its associated privacy notice (the "AWS Agreement")), including any modifications thereto mandated by the applicable provider. Customer shall be responsible for strict compliance with, and any liability arising from any violation of, any such terms of use or service, or license or other agreements. Please note in particular the section of the AWS Agreement titled "Downtime and Service Suspensions; Security." NOTWITHSTANDING ANYTHING TO THE CONTRARY, ENGINE YARD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THIRD PARTY SERVICES OR SEPARATE PRODUCTS OR RELATED SUPPORT SERVICES AND, AS BETWEEN CUSTOMER AND ENGINE YARD, SUCH THIRD PARTY SERVICES AND SEPARATE PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, ENGINE YARD SHALL HAVE NO LIABILITY FOR LOSS, DESTRUCTION, ALTERATION OR UNAUTHORIZED ACCESS TO DATA OR OTHER CONTENT STORED OR TRANSMITTED USING THIRD PARTY SERVICES OR SEPARATE PRODUCTS.
    • (b) Third Party Services Changes. Engine Yard may suspend or terminate a Third Party Service upon written notice to Customer if the Third Party Service is suspended or ceases to be provided for any reason (whether generally or through Engine Yard), and Engine Yard may modify the pricing charged to Customer or features available with respect to such Third Party Service if the Third Party Service Provider modifies the pricing or features of such Third Party Service. Engine Yard shall use reasonable efforts to provide Customer a reasonable notice period with respect to any such suspension, termination or price or feature modification, which period Customer acknowledges may be determined in part by the amount of notice the Third Party Service Provider provides to Engine Yard of such events.
13. Notices. All notices to Engine Yard under this Agreement (including notices required to be in writing) may be sent to Engine Yard via e-mail through Customer's Engine Yard online support account. Notices to Customer under this Agreement shall be given via email to the individual designated as Customer's "Customer Contact" when signing up for the Services online through the Website, or as specified in Section 14(d), or by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
14. Miscellaneous.
    • (a) Non-Solicitation. Customer agrees that it shall not solicit any employee of Engine Yard with whom it has had direct contact in connection with this Agreement for employment during the term of this Agreement and for 12 months thereafter. Notwithstanding the foregoing, Customer shall not be precluded from (i) hiring an employee of Engine Yard who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If Customer violates this provision, in addition to any other right Engine Yard may have at law or in equity, Customer shall make a one-time payment to Engine Yard in the amount of 30% of the employee's base salary for one year.
    • (b) Ownership; Licenses. As between the parties, Engine Yard owns and shall retain all rights in the Services (including all related infrastructure), Engine Yard's trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights. Customer grants Engine Yard (and its subcontractors) a non-exclusive license to use, reproduce, modify, publicly perform, publicly display and distribute any data or content Customer provides to Engine Yard in connection with the provision and operation of the Services during the term of this Agreement, and thereafter for so long as Engine Yard elects, in its sole discretion and without obligation, to retain such data or content. Notwithstanding the foregoing, Customer acknowledges and agrees that Engine Yard may, in its sole discretion and without obligation, delete all such data or content in Engine Yard's possession or control immediately upon, or at any time after, termination of this Agreement.
    • (c) Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE OR FEDERAL COURTS IN SAN FRANCISCO COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. The parties ALSO waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Notwithstanding the foregoing, either party may bring an action in any jurisdiction to enforce its intellectual property rights, its rights in confidential information or payment obligations.
    • (d) Modifications. Engine Yard may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting such changes on the Website, or other reasonable means. Customer's continued use of the Services after Engine Yard's provision of a notice of an updated version of the Terms of Service shall constitute Customer's consent to such updated Terms of Service. Engine Yard may make modifications to any of the Services in its discretion, provided that such modifications do not materially adversely affect the features or functionality of the Services.
    • (e) Non-Waiver. A party's failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of this Agreement. A party's waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
    • (f) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words "include" and "including," and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation." All references in this Agreement to "Sections" refer to sections herein.
    • (g) Survival. Sections 2, 7, 8, 9, 10, 12, 13, and 14 will survive any expiration or termination of this Agreement.
    • (h) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party's control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
    • (i) No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
    • (j) Severability. In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.
    • (k) Marketing. Customer grants Engine Yard the right to use Customer's name, mark and logo on Engine Yard's website and in Engine Yard's promotional materials solely to identify Customer as a customer of Engine Yard.
    • (l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Engine Yard may provide the Services to any person, including a competitor of Customer.
    • (m) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Engine Yard may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.
    • (n) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.