Terms of Service
These Natoma Terms and Conditions (the “Agreement”) governs the purchase of services from Natoma and forms binding contract between you (“Customer” or “you”) and Natoma Labs, Inc. (“Company”, “Natoma” or “we”). By purchasing licensed access to the Natoma platform or other specified services (collectively, the “Services”) via an Order Form, through the website Natoma.id (the “Site”), or executing any order document that references this Agreement, you acknowledge and agree to these Terms and Conditions.
1. SERVICES AND SUPPORT
1.1 Subject to Customer’s compliance with the terms and conditions of this Agreement, Company will provide the Services for a specified period of time (the “Services Term”) under a license.
1.2 In connection with the Services, Company will provide Customer with standard support services during Company’s regular business hours in accordance with Company’s standard practices. Customer support concerns can be communicated via e-mail to support@natomahq.com.
2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer shall not (and shall not permit any third party to) do any of the following: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services or any software, documentation or data related to the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of an unauthorized third party; (v) remove or otherwise alter any proprietary notices or labels from the Services, or any portion thereof; (vi) use the Services to build an application, product or service that is competitive with any Company product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Company may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services).
2.2 Customer is responsible for all of Customer’s activity in connection with the Services, including uploading any data onto the Services (such data shall be referred to as “Customer Content”). Customer shall not upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Services (not limited to Customer Content) that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of the Services; or (iv) impersonates any person or entity, including any employee or representative of Company.
3. CONFIDENTIALITY
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 business (hereinafter referred to as “Proprietary Information” of the Disclosing Party) in connection with the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 As between the parties, Company retains all rights, including all intellectual property rights, relating to the Services, including the Natoma software platform and any related software and documentation, and any suggestions, ideas, enhancement requests, recommendations or other information (collectively, “Feedback”) provided by Customer relating to the Services.
4.2 As between the parties, Customer retains all rights to data uploaded through the Services (“Customer Data”). Customer hereby grants to Natoma a non-exclusive, worldwide, royalty-free and fully paid up license to: (a) access and use Customer Data to provide the Services to Customer during the Services Term; and (b) use aggregated, deidentified and anonymized data derived from Customer Data for its internal business purposes, including to improve the Services, provided that such data does not enable the identification of Customer, any of its end users, or any individual and does not include Customer’s Confidential Information. Natoma shall implement industry-standard technical safeguards designed to prevent such data from being re-identified. Natoma acknowledges and agrees that Customer Data is the Confidential Information of Customer. Customer will not provide, post or transmit any Customer Data that: (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) protected health information or personal information relating to children under 13 years old.
5. PAYMENT OF FEES AND BILLING
5.1 Customer will pay Company the fees described in any applicable Order Form or the Site for the Services in accordance with any relevant payment terms (the “Fees”). If Customer’s use of the Services exceeds the Services capacity set forth or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage, and Customer agrees to pay the additional fees in the manner provided therein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of any Services Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid, undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Fees other than U.S. taxes based on Company’s net income.
6. TERM AND TERMINATION
6.1 Term. The term shall commence on the date the Services is made available for access by Customer and shall continue for the period specified on the Site or any applicable Order Form or the Free Use period set forth above unless earlier suspended or terminated in accordance with this Agreement. Unless otherwise set in an applicable Order Form, this Agreement shall automatically renew at the end of the then Services Term for the same term as provided at time of purchase unless either party notifies the other party (to Natoma, notification may be provided to support@natomahq.com, and to Customer, at the email address associated with purchase) at least thirty (30) days prior to the renewal date of its intention not to renew.
6.2 Termination. Either party may terminate this Agreement if the other party materially breaches the terms set forth herein or in any applicable Order Form and fails to remedy such breach within thirty (30) days after written notice thereof from the non-breaching party. Upon the termination or expiration of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and Customer shall immediately cease use of the Services. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement or any applicable Order Form shall survive, including indemnification, limitation of liability and payment terms.
6.3 Suspension. Notwithstanding anything provided herein, Company may suspend Customer’s access to, or use of, the Services if Company believes that (a) there is a significant threat to the functionality, security, integrity or availability of the Services or any content or data in the Services; or (b) Customer is using the Services to commit an illegal act or in violation of this Agreement. In the event Company suspends Customer access to the Services, Company will undertake commercially reasonable efforts to provide Customer with advance notice of such suspension, except in the event of an emergency (to be determined at reasonably discretion of Company) or if Company is prevented from providing advance notice by law or other legal process, and will not suspend Services for any longer than necessary to ensure integrity of the Services. Any suspension under this Section 6.3 shall not excuse Customer from an obligation to make payments under as provided in this Agreement or any applicable Order Form.
7. LIMITED WARRANTY AND DISCLAIMER
7.1 During the Services Term, Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.2. Company represents and warrants that it will not knowingly include, in any Company 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 intentionally 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 Company fails to comply with the warranty in this Section, Customer may promptly notify Company in writing of any such noncompliance and Company 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’s sole and exclusive remedy for such noncompliance is termination of this Agreement.
7.3 Company represents and warrants to Customer that the Software and Services do not infringe or misappropriate any U.S. patents, copyrights, trade secrets or any other proprietary right of any third party.
7.4 EXCEPT FOR ANY WARRANTIES EXPLICITLY GRANTED IN THIS SECTION 7, NATOMA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE AND SERVICES INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NATOMA DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. NATOMA PROVIDES THE SOFTWARE AND SERVICES “AS IS” AND ON AN “AS AVAILABLE” BASIS.
8. INDEMNIFICATION
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any US patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of Section 2.
9. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NATOMA BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NATOMA ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO NATOMA IN THE TWELVE (12) MONTH PERIOD PRECEDING A CLAIM.
10. PUBLICITY
Company may publicly disclose its business relationship with Customer. Company may use Customer’s logo on Company’s website, mention Customer in all forms of press and media, describe the kinds of projects done for Customer and kinds of problems Company has assisted with, and mention Customer and use information in any form including sales presentations, pitches, and videos.
At Company's reasonable request, Customer agrees to provide Company with marketing assistance, including but not limited to participating in marketing case studies, videos, blogs, social media postings, and testimonials. Company reserves the right to communicate with you via email or telephone for marketing, informational, and promotional purposes.
11. MISCELLANEOUS
The parties acknowledge 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 by both parties, except as otherwise provided herein. 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. Obligations related to this Agreement are not assignable, transferable or sublicensable by either party except with the other’s prior written consent; provided, however, that a party may assign this Agreement without such consent to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such party’s voting securities or assets. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company 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; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notice to Company may be provided to legal@natomahq.com. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.
Exhibit A
General Services Level Support Terms to Natoma Agreement
Up-Time. The Services will, subject to the exceptions listed below, be available 99% of the time during any full calendar month (“Scheduled Availability”). The Scheduled Availability of the Services for a given month will be calculated as follows (rounded to the nearest one tenth of one percent): Availability % = 100% x (Total Minutes in the Month – Total Minutes Unavailable in the Month)/Total Minutes in the Month. Scheduled Availability Time does not include: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Services issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Natoma (such as internet outages or outages with respect to Customer’s network or internet access). Natoma shall use reasonable efforts to provide advance notice by email of any scheduled service disruption.
Services Credit. Customer's sole and exclusive remedy in connection with any unexcused downtime shall be that for each period of downtime lasting longer than one hour, Natoma will credit Customer 5% of Services fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer notifies Natoma that downtime is taking place and continues until the availability of the Services is restored. To receive downtime credit, Customer must notify Natoma in writing within 24 hours from the end of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Services Fees in any one (1) calendar month. Natoma will only apply a credit to the month in which the incident occurred. Natoma’s blocking of data communications or other Services in accordance with its policies shall not be deemed to be a failure of Natoma to provide adequate service levels under this Agreement.
Maintenance. Natoma will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
Support. Natoma is available to receive product support inquiries via email or the Natoma website 24 hours per day. Natoma Standard Support Hours are 08:00 to 18:00 Eastern Standard Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
Customer Support List. Customer shall provide Natoma, and keep current, a list of designated contacts and contact information (the “Support List”) for Natoma to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the people in successively more responsible or qualified positions to provide the answer or assistance desired.
Classification of Problems. Natoma shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.