Last Updated: March 30, 2017
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCEPTING THESE TERMS OF SERVICE, EITHER THROUGH EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE OR CLICKING TO ACCEPT WHERE SUCH OPTION IS PRESENTED TO YOU, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, FULLY UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER ENTITY YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY TO THESE TERMS OF SERVICE.
These Terms of Service (the “Terms of Service”) are between you, or if accepting on behalf of an entity, such entity (“Customer”, “you”, or “your”) and Treasure Data, Inc., having a principal place of business at 2565 Leghorn St., Mountain View, CA 94043 (“Treasure Data”, “we”, or “us”). These Terms of Service and any Order Form that references them shall be collectively referred to as the “Agreement.” The Agreement constitutes a legal agreement that governs your access to and use of our Service.
1.1 Provision of the Service. Treasure Data shall make the Service available to Customer during the Subscription Term solely for Customer’s own internal business purposes as permitted by and subject to this Agreement (including the usage limits stated in the applicable Order Form) and the Documentation. Customer may permit its employees and others (collectively, "Users") to use the Service solely on Customer’s behalf, provided that Customer shall ensure that all such Users comply with the terms of this Agreement. Additionally, Customer will be fully liable for the acts, omissions, or violation of this Agreement by any and all Users. Except for the express licenses granted in this Section 1.1, no other licenses are granted by Treasure Data hereunder, by implication, estoppel or otherwise, and all rights not expressly granted herein are reserved. Customer understands that the Service may change over time as Treasure Data refines and adds more features. Treasure Data reserves the right to update and modify the Service at any time, with or without notice, in its sole discretion.
1.2 Customer’s Account. For each User, Customer must provide Treasure Data with Customer’s and a User’s full legal name, the User’s valid email address, and any other information requested during the account signup process in order to obtain a Treasure Data account ("Login Account") for such User. Customer will ensure that all account information of all Users remains complete and accurate. Accounts registered by "bots" or other automated methods are not permitted. Customer are solely responsible for protecting each Login Account, including a User’s username and password, and Customer will be liable for any unauthorized use thereof.
1.3 Third Party Services or Add-Ons. Treasure Data may make available to Customer certain third party products or services for use in connection with the Service ("Third Party Services"). Customer understands and agrees that Customer’s use of those Third Party Services may be subject to additional terms and conditions and policies that are specific to such Third Party Services, and that Customer shall be bound by such terms and conditions and policies if Customer elects to use such Third Party Services. Treasure Data makes no representations or warranties with respect to any Third Party Services, whether express or implied. Customer is solely responsible for determining the suitability of any Third Party Services that Customer elects to use in connection with the Service. Any and all use of such Third Party Services shall be at Customer’s sole risk.
1.4 Trial Period. From time to time Treasure Data may offer access to the Service (or portions thereof) through a trial period ("Trial Period"), as Treasure Data determine in its sole discretion. This Agreement applies equally to any Trial Period that Customer may be using. Customer understands and acknowledges that the Service provided under any Trial Period may be significantly limited in storage and concurrent processing capacity and as such should not be used in a production or live environment. Any access or use of the Service under a Trial Period shall be at Customer’s sole risk. Treasure Data reserves the right to suspend or terminate the Trial Period at any time and for any reason. Customer agrees to hold Treasure Data harmless from any damages, losses, and liability that may arise from Customer’s use of the Service during such Trial Period.
1.5 Support. Technical support is provided in accordance with Customer’s selected plan level and the terms and conditions set forth in the Treasure Data Support FAQ, available at https://support.treasuredata.com/.
1.6 Consulting Services. Treasure Data may provide implementation, configuration, training, and other similar services related to the Service (collectively "Consulting Services"). All Consulting Services, including the applicable fees for such services, will be set out in either an Order Form or a statement of work executed by the Parties ("Statement of Work") which will reference and be governed by this Agreement. Any materials produced by or with Treasure Data in the course of providing any support or Consulting Services to Customer (the "Service Materials"), shall remain the exclusive property of Treasure Data. Service Materials include materials created for or in cooperation with Customer, but do not include any Collected Data, Customer’s Confidential Information or the Service. Customer shall reimburse Treasure Data for all reasonable, pre-approved (by Customer in writing) and appropriately documented travel and related expenses incurred by Treasure Data in performing any support or Consulting Services for Customer under this Agreement.
2. Use of the Service
2.1 Restrictions. Customer agrees that Customer will not (and will not permit or encourage any Users or other third party to directly or indirectly):
- use the Service in any manner or for any purpose other than as expressly permitted by this Agreement;
- sell, resell, sublicense, distribute, rent or lease the Service, or include the Service in any service bureau or outsourcing operation;
- except as provided in Section 5.2 with regards to the Tools, misuse, modify, alter, tamper with, repair or otherwise create derivative works of the Service;
- remove, obscure or alter any proprietary right notice on or in connection with the Service;
- use the Service to store or transmit malicious code, files, scripts, agents, or programs, including without limitation viruses, worms, and Trojan Horses;
- use the Service to store or transmit Health Information or PCI Data;
- interfere with or disrupt, compromise, or degrade the integrity or performance of the Service;
- interfere with or materially adversely affect other users' use of the Service or the networks or systems of other parties;
- use the Service to attempt to access, acquire or otherwise obtain data to which Customer is not legally entitled;
- access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas;
- use the Service in violation of applicable laws, rules, or regulations; or
- use the Service to infringe the intellectual property rights, or otherwise violate the rights of others.
Treasure Data has certified compliance with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of European Personal Information transferred to the United States. If Customer stores, transmits, or otherwise processes European Personal Information using the Service, the terms of the Data Processing Addendum at https://www.treasuredata.com/td-downloads/Data_Processing_(TOS)_Addendum.pdf shall apply to such processing. The Data Processing Addendum is incorporated by reference herein as if fully set forth.
2.2 Notification of Unauthorized Use. Customer will immediately notify Treasure Data of any security breaches, incidents, threats, or vulnerabilities involving the Service that come to Customer’s attention, including without limitation any compromise of the username and password associated with a Login Account or unauthorized use of a Customer Login Account or the Service. In the event of any unauthorized use of a Login Account, Customer will take all steps necessary to terminate such unauthorized use. Additionally, Customer will provide Treasure Data with such cooperation and assistance related to investigation and remediation of any such breach, incident, threat, or vulnerability as Treasure Data may reasonably request.
3.1 Use of Collected Data. Customer may use the Tools provided with the Service to generate Reports pertaining to the Collected Data. Customer represents and warrants that
- Customer has the right to provide to Treasure Data the Collected Data and the Personal Information contained therein, upload Collected Data to the Service, and export the data using services and locations designated by Customer;
- Customer’s use, transmission, and export of Collected Data is and will be in compliance with this Agreement, and all applicable laws, regulations, and ordinances, including relevant data privacy laws; and
- Customer has provided all necessary notices and obtained all necessary consents related to the collection and use of such Collected Data in the manner described in this Agreement.
Treasure Data reserves the right to review and/or remove any Customer Data if Treasure Data suspect that it is in violation of this Agreement and/or applicable laws. Treasure Data will only access and use the Collected Data to the extent it is necessary to provide the Service to Customer. Notwithstanding the foregoing, Treasure Data may use the Collected Data for the purpose of supporting, generally maintaining, and improving the Service as well as for developing and distributing general benchmarks or statistics pertaining to the Service, provided the Collected Data is used in the aggregate and is in anonymized form.
3.3 Security. Treasure Data currently uses Amazon Web Services (AWS) as its storage provider. AWS infrastructure is housed in Amazon-controlled data centers. AWS has been accredited under ISO 27001, as well as SOC 1/SSAE 16/ISAE 3402 (Previously SAS 70 Type II). For more information on the security provided by Amazon Web Services, please see the Amazon Web Services Security Center page (http://aws.amazon.com/security/). Treasure Data shall endeavor to implement reasonable security measures in connection with the Service; however, Customer acknowledges, that no data transmission over the Internet or data storage system can be guaranteed to be 100% secure and Treasure Data cannot guarantee the security of data transmitted to it or that it stores. Customer acknowledges that if it wishes to protect its transmission of Collected Data, it is Customer’s responsibility to use a secure encrypted connection to communicate with the Service. At Customer’s option, Customer may use Transport Layer Security (TLS)/Secure Socket Layer (SSL) encryption through the Treasure Agent where Collected Data is collected to help protect its transmission using the Internet. Treasure Data shall not be liable to Customer for any liabilities arising from the operation of the Service over the Internet or other networks outside of its control.
3.4 Data Backups and Retention. Customer understands and agrees that Customer is solely responsible for maintaining appropriate backups and archives of Customer’s Collected Data. Treasure Data will have no responsibility (or related liability) for backing up any Collected Data or other information that Customer provides to Treasure Data. Customer acknowledges that Treasure Data’s obligation to retain Collected Data terminates under Section 10.4 after expiration or termination of this Agreement.
4. Payment Terms
4.1 Fees.Customer will pay Treasure Data the fees for the Service (“Service Fees”) in accordance with the Order Form as shown on Treasure Data’s monthly invoice to Customer based on Customer’s usage of the Service. Customer’s Plan Tier will be based on whichever aspect of usage shown on the columns in the Order Form Table is in the highest Plan Tier. For example, if Customer’s usage corresponds to one Plan Tier in all respects, except Customer’s Collection Rate corresponds to the next higher Plan Tier, Customer shall pay Service Fees based on the next higher Plan Tier.
At the beginning of each month of the Subscription Term, Treasure Data will invoice Customer for the Monthly Fee corresponding to Customer’s then-current Plan Tier, and Customer shall pay such Monthly Fee.
If, however, during a given month, any of the limits corresponding to Customer's current Plan Tier are exceeded, Treasure Data will invoice Customer for the difference between Customer’s Current Plan Tier and the Monthly Fee for the Plan Tier corresponding to Customer’s actual usage of the Service that month (the “True Up Amount”), and Customer shall pay such True Up Amount. Each later invoice will reflect, and Customer shall pay, any True Up Amount for the previous month and the Monthly Fee for the current month. After exceeding the then-current Plan Tier for two months (whether or not consecutive), Customer’s Plan Tier will be upgraded to the Plan Tier corresponding to Customer’s current usage for the remainder of the Subscription Term.
4.2 Payment Terms. Treasure Data will make certain payment methods available to Customer, at its sole discretion. All amounts are payable in U.S. dollars and will be due within thirty (30) days of the billing date on the invoice. Except as expressly provided herein, all payment obligations are non-cancelable and all Service Fees and other amounts paid are non-refundable. Treasure Data may assess a late charge if Customer does not pay the Service Fees on time. The late charge will be the lesser of one and a half (1.5%) percent of the unpaid amount assessed each month or the maximum rate permitted by law. Customer will reimburse Treasure Data for all costs Treasure Data incurs in connection with its effort to collect any past due amounts, including attorneys' fees and other related expenses. Treasure Data may suspend the Service or terminate this Agreement if Customer fails to pay the Service Fees in full and on time.
4.3 Taxes and Interconnection Expenses. Customer will be responsible for all taxes related to the Service Fees or Customer’s use of the Service, excluding taxes based on Treasure Data's net income, unless Customer provides Treasure Data a valid tax exemption certificate or other evidence satisfactory to Treasure Data of Customer’s tax exemption. Customer will also be responsible for procuring and maintaining all hardware, software and telecommunications services needed to connect Customer’s network to the Service and for paying all third-party access charges (e.g., Internet service provider fees).
5. Proprietary Rights
5.1 Ownership. Treasure Data and its suppliers retain all right, title and interest, in and to the Service (including all of its software and technology components), the structure and format of any Reports, its trademarks, its Confidential Information, and the Feedback (as defined below), including all intellectual property rights therein. In no event will Customer contest or dispute Treasure Data’s exclusive ownership rights in the foregoing. Other trademarks, service marks, and trade names that may be used on or in connection with the Service are the property of their respective owners. Customer will retain all right, title and interest, in and to the Collected Data, the Reports related to such Collected Data, Customer’s trademarks, and Customer’s Confidential Information, including all intellectual property rights therein, subject to Treasure Data’s rights in Section 3.1.
5.2 Use of Software Tools. Certain Tools that are furnished to Customer in connection with the Service are provided by Treasure Data under the terms and conditions of the Apache License, Version 2.0. Such terms and conditions for the use of the Tools are incorporated by reference herein. Customer may obtain a copy of the Apache License at http://www.apache.org/licenses/LICENSE-2.0. Except as expressly provided herein, the Tools are distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. See the Apache License for the specific language governing permissions and limitations under the Apache License. Notwithstanding the foregoing, Customer understands that the Service is intended for use with the Tools as provided to Customer by Treasure Data. To the extent Customer modifies the Tools, Customer does so at its own risk, and Customer agrees to hold Treasure Data harmless from any damages, losses, and liability that may arise from Customer’s modification of the Tools.
5.3 Feedback. Treasure Data welcomes Customer’s suggestions or feedback on how to improve the Service or the Tools. If Customer provides any ideas, suggestions or recommendations to Treasure Data regarding the Service or Tools ("Feedback"), Treasure Data shall have a perpetual worldwide license to copy, retain, use and incorporate such Feedback in its products and/or services, without payment of royalties or other consideration to Customer.
6.1 Confidential Information. "Confidential Information" means any and all confidential or proprietary non-public information and data of one party (the "Disclosing Party") disclosed to the other (the "Receiving Party") in connection with this Agreement, which is identified or should be reasonably understood to be confidential. Customer’s Confidential Information includes the Collected Data and the resulting Reports. Treasure Data's Confidential Information includes the Service, Documentation, and all other applications, tools, and technical information made available to Customer in connection with the Service. Confidential Information of each Party includes this Agreement, as well as any Order Forms and Statements of Work and all business and marketing plans, technology and technical information, product plans and designs, roadmaps, specifications, and other similar information disclosed by a Party. Confidential Information does not include any information which:
- is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party in breach of this Agreement;
- was within the Receiving Party's possession prior to its disclosure to it by or on behalf of the Disclosing Party;
- becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party not under obligation to keep such information confidential; or
- is developed independently by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
6.2 Protection of Confidential Information. The Receiving Party agrees to
- protect the Confidential Information using the same degree of care that it uses to protect its own Confidential Information of like kind, but in no event less than reasonable care;
- not to use the Confidential Information for any purpose outside of this Agreement; and
- not to disclose the Confidential Information to any third party other than its contractors and agents who have a need to know and are bound by confidentiality obligations no less restrictive than this Agreement.
In the event that a Receiving Party becomes legally obligated by applicable law, administrative or judicial process, or other legal process to disclose any Confidential Information provided pursuant to this Agreement, such Receiving Party shall provide the Disclosing Party with prompt written notice (to the extent it is legally permitted) so that such Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement. Provided such notice is given, no disclosure in response to such obligation or process shall constitute a breach of this Agreement.
7.1 Mutual Warranties. Each party represents and warrants to the other party that:
- it has all authority to enter into this Agreement; and
- its acceptance of this Agreement, and the performance by such party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such party is a party or by which it is otherwise bound.
7.2 Treasure Data Warranties. Treasure Data warrants that
- during the Subscription Term, the Service will be performed materially in accordance with the applicable Documentation, under normal use and circumstances;
- the Service consists entirely of software and Documentation fully owned and/or licensed by Treasure Data; and
- Treasure Data will use commercially reasonable efforts to ensure the Service and any components thereof as delivered to Customer, do not contain authorization codes (except authentication functionality), computer viruses, spyware, time bombs, worms, or other contaminants intended to modify, monitor, damage, or disable Customer’s Collected Data or any other party’s systems or data. Customer must timely and properly report any issues with the Service to Treasure Data so that Treasure Data may have the opportunity to research and resolve such issues. For any breach of an above warranty, Customer’s sole and exclusive remedies are those set forth in Section 10.3 (Termination for Cause) and Section 10.5 (Effect of Termination).
7.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 7.2 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TREASURE DATA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE, TOOLS, DOCUMENTATION, REPORTS, AND ANY OTHER SOFTWARE OR MATERIALS THAT TREASURE DATA MAY MAKE AVAILABLE DURING THE SUBSCRIPTION TERM. TREASURE DATA DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT TREASURE DATA IS PROVIDING A SERVICE THAT IS INTENDED ONLY TO ASSIST CUSTOMER IN OPERATING CUSTOMER’S OWN BUSINESS AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR (AND TREASURE DATA ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS MADE BASED ON CUSTOMER’S USE OF THE SERVICE, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.”
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) IN NO EVENT WILL EITHER PARTY, AND ITS OFFICERS, EMPLOYEES, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY OR ITS OFFICERS, EMPLOYEES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY, AND ITS OFFICERS, EMPLOYEES, AND SUPPLIERS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR OWING BY CUSTOMER TO TREASURE DATA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS OR CUSTOMER’S BREACH OF SECTION 2.1 (RESTRICTIONS).
Subject to this Agreement, Treasure Data will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the unmodified Tools and Reports (as made available by Treasure Data and used in accordance with this Agreement) infringe such third party’s copyright or misappropriate such third party’s trade secrets, and Treasure Data will indemnify Customer from any damages, reasonable attorneys’ fees and costs finally awarded against Customer or amounts paid by Customer in any final settlement entered into by Treasure Data. Customer agrees to defend Treasure Data against any claim, demand, suit, or proceeding made or brought against Treasure Data by a third party alleging that the Collected Data or Customer’s use of the Service infringes the rights of, or has caused harm to, such third party or violates any law and Customer will indemnify Treasure Data from any damages, reasonable attorneys’ fees and costs finally awarded against Treasure Data or amounts paid by Treasure Data in any final settlement entered into by Customer. The party entitled to be indemnified under this Section 9 (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party") of any claims. The Indemnifying Party reserve the right to assume exclusive defense and control of any matter which is subject to indemnification under this Section 9, in which case the Indemnified Party agrees to cooperate with any reasonable requests to assist in the defense of such matter. The Indemnified Party may participate in the defense at its own cost and through its own counsel. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any claim in any manner that would adversely affect the rights or interests of the other party without the prior written consent of the other party, which will not be unreasonably withheld or delayed.
10. Terms and Termination
10.1 Term. Unless earlier terminated in accordance with this Agreement, this Agreement shall continue until all subscriptions hereunder have expired or have been terminated (“Term”). The Subscription Term for a given subscription shall be as set forth in the applicable Order Form. Except with respect to a Trial Period and as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the Subscription Term.
10.2 Termination for Convenience. Either party will have the right to terminate an Order Form for convenience upon thirty (30) days’ written notice subject to the plan level terms set forth on the Order Form, and provided that any termination for convenience by Customer shall not relieve Customer of Customer’s obligations to pay all Service Fees through the end of the Subscription Term of the outstanding Order Form(s).
10.3 Termination for Cause. Either party may terminate an Order Form and/or this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days from the date of written notice of breach by the non-breaching party. Notwithstanding the foregoing, non-payment of any Service Fees or other fees due to Treasure Data will be considered a material breach for which there will be no opportunity to cure. If Customer materially breaches this Agreement, Treasure Data may, without limitation of its other rights and remedies, suspend the Service and/or withhold further performance of its obligations under this Agreement. In addition, Treasure Data may suspend the Service and/or terminate any and all Order Forms and this Agreement in event of any breach or threatened breach by Customer or Customer’s Users of the restrictions set forth in Section 2.1.
10.4 Export and Destruction of Collected Data. Customer shall have the ability to export or retrieve the Collected Data from the Service at any time during the Term and within thirty (30) days after the effective date of expiration or termination of the Agreement. Following such period, Treasure Data will have no obligation to maintain or provide Collected Data and shall thereafter, unless legally prohibited, automatically delete all Collected Data in its systems or otherwise in its possession or under its control. Customer acknowledges that following such period and deletion of Collected Data, the Collected Data will be unrecoverable.
10.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason, all licenses and other rights granted to Customer hereunder will immediately terminate and Customer will cease all use of the Service. Upon termination of an Order Form and/or this Agreement by Customer pursuant to Section 10.3, Treasure Data will refund the unused portion of any pre-paid Service Fees. Upon termination of an Order Form and/or this Agreement by Treasure Data pursuant to Section 10.3, Customer will pay any unpaid Service fees for the remainder of the Subscription Term of each terminated Order Form. Sections 2.1 (Restrictions), 3.1 (Use of Collected Data), 3.4 (Data Backups and Retention), 4 (Payment Terms), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), 10 (Term and Termination), 12 (Governing Law), 13 (General), 14 (Changes to the Terms of Service), and 15 (Definitions) will survive the termination or expiration of this Agreement.
10.6 Suspension. Without limiting Treasure Data’s rights or remedies hereunder, Treasure Data shall be entitled to suspend Customer’s use of the Service if Treasure Data determines, in its sole judgment, that Customer is using the Service in a manner that breaches Section 2.1 for so long as Treasure Data believes is necessary to mitigate the risk of harm to the Service or other parties. Treasure Data will use commercially reasonable efforts to notify Customer in advance of such suspension, but will provide notice promptly after of any suspension. Suspension of use of the Service shall not release Customer from its obligations under this Agreement, provided, however, that Customer shall receive credit for the full suspension period if, after a reasonable investigation, Treasure Data determines that Customer did not, in fact, breach Section 2.1.
11. Copyright Complaints
Treasure Data respects the intellectual property rights of others and will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to Treasure Data. Pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA”), 17 U.S.C. 512(c)(2), our designated agent for notice of alleged copyright infringement in connection with the Service is:
Treasure Data, Inc.
Attn: Chief Executive Officer
2565 Leghorn Street
Mountain View, CA 94043
Treasure Data will respond appropriately to DMCA takedown notifications, which Customer acknowledges may result in the removal of certain Collected Data from Customer’s account. To file a counter notification with Treasure Data to restore any removed content, the requirements specified 17 U.S.C. 512(g)(3) must be fulfilled. The text of this statute can be found at the U.S. Copyright Office web site.
12. Governing Law; Venue
This Agreement is to be construed in accordance with and governed by the laws of the State of California without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply, and is hereby expressly excluded. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in the federal and/or state courts, as applicable, in Santa Clara County, California. The parties consent to the jurisdiction of such courts and waive any defenses based on improper venue or lack of personal jurisdiction in any suit, action, or proceeding filed in such courts.
Treasure Data may identify Customer as a customer of Treasure Data, including but not limited to using Customer’s company name and logo in its customer list, website, blog, social media pages, or any other marketing or promotional materials of any kind. If requested by Treasure Data, subject to each party’s prior review and approval as to content, Customer agrees to issue a joint press release with Treasure Data within three (3) months of our request. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by this Agreement and, in the case of Customer’s assignment, all past Service Fees are paid in full. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise between the parties, and the parties will at all times be and remain independent contractors. Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, tsunami, storm, earthquake, acts of God, hostilities, terrorism, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control. If any of the provisions of this Agreement are determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provisions will be deemed to be severed and struck from this Agreement, while the remaining provision(s) of the Terms continue in full force and effect and are enforced to the extent possible, consistent with the stated intention of the parties. 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. This Agreement (including all Order Forms and Statements of Work executed by both parties) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof. Except as expressly provided in this Agreement, no amendment, or modification of this Agreement will be effective unless in writing and signed by a duly authorized signatory of each party. While the parties may communicate by any means in the performance of this Agreement, any notice of termination or other legal notice to a party shall be in writing and sent to the address of such party above (or any successor address designated by a notice hereunder) by nationally-known courier service that confirms delivery in writing. Such notices will be deemed to be given upon receipt. The words “include” and “including” mean “including, but not limited to.” This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon and all of which together shall constitute one and the same instrument. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be handwritten signatures.
14. Changes to The Terms of Service
14.1 Change Procedures. Treasure Data is permitted to modify these Terms of Service from time to time by posting a revised version on the Treasure Data website or by otherwise notifying you in accordance with Section 13. Changes are effective upon posting or on the date stated in the notice. Your continued use of the Service after the effective date of any changes to the Terms of Service constitutes your agreement to be bound by the changes to the Terms of Service. It is your responsibility to check the Treasure Data website regularly for modifications to these Terms of Service.
14.2 Material Changes. means any change to the Terms of Service that would materially reduce Customer’s rights or benefits, or materially increase Customer’s obligations or liability under the Terms of Service. Notwithstanding Section 14.1, any changes to the Terms of Service that include a Material Change will only be effective after thirty (30) days following posting on the Treasure Data web site or receipt of the notice of the change (the “Notice Period”). Customer shall have the right to opt out of any Material Change by sending notice of its objection to legal@TreasureData.com within the Notice Period, in which case the Material Change shall not apply to Customer for the duration of the Term. However, if Customer sends Treasure Data such an objection notice, Treasure Data shall have the right to terminate the Agreement by giving Customer at least thirty (30) days’ written notice of termination.
“Collected Data” means electronic data and information submitted by Customer to the Service via the Tools.
“Documentation” means the online documentation that Treasure Data provides with the Service, as may be updated from time to time.
“European Personal Information” means Personal Information about a citizen of either a member state of the European Economic Area or of Switzerland.
“Health Information” has the meaning ascribed to it under the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. § 1320(4), and regulations promulgated under HIPAA.
“PCI Data” means the following information relating to payment cards, which are defined in the Payment Card Industry (PCI) Data Security Standard:
- Primary Account Numbers (PAN), cardholder names, expiration dates, or service codes; or
- Full track data (magnetic-stripe data or equivalent on a chip), CAV2/CVC2/CVV2/CID, or PINs/PIN blocks.
“Personal Information” means:
- Any information maintained about an identified or identifiable living natural person, including without limitation (1) any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, driver’s license, date and place of birth, mother’s maiden name, or biometric records; and (2) any other information that is linked or linkable to an individual, including without limitation medical, educational, financial, and employment information;
- Any information relating to an identified or identifiable living natural person; or
- Any information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy laws or data security laws.
“Reports” means all data metrics, results of queries run on td-command, visualizations of Collected Data, and other reports produced by the Service relating to Collected Data.
“Service” means the Treasure Data cloud-based managed service for data collection, storage, and analytics ordered by Customer under a Free Trial or Order Form and made available by Treasure Data, including the Tools, and any associated offline components, as described in the Documentation, but excluding the Third Party Services.
“Subscription Term” means the term stated on the applicable Order Form.
“Tools” means the Treasure Agent, td-command, and/or other similar Treasure Data tools and utilities (excluding Third Party Services) that Treasure Data may make available to Customer for use in connection with the Service during the Subscription Term.
“Treasure Agent”means software that runs as a background process on a device that collects logs from various data sources and uploads them to the Service.