Beta Service Terms of Service and License Agreement

BY CLICKING THE CONFIRM BUTTON OR BY USING OR ACCESSING CHAOS SUMO’S SERVICES (THE “SERVICE”) OR SOFTWARE (THE “SOFTWARE”), YOU AGREE TO BE BOUND BY THE TERMS OF THIS CHAOS SUMO TERMS OF SERVICE AND LICENSE AGREEMENT (THIS “AGREEMENT”).  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS CHAOS SUMO SERVICE OR SOFTWARE.  “YOU” AND “YOUR” AS USED IN THIS AGREEMENT MEANS THE NATURAL PERSON USING THE SERVICE OR THE SOFTWARE AND, IF APPLICABLE, THE ENTITY YOU REPRESENT THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT, YOUR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICE TO YOU.  YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

  1. Grant and Use Rights

Chaos Sumo hereby grants you a limited non-exclusive, non-transferable license, without rights to sublicense, to use the Chaos Sumo Service and Software for your internal operations only for a period of 30 days or such longer period as may be agreed by Chaos Sumo, not to exceed 75 days (the” Subscription Term”).  This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service or the Software, or any intellectual property rights.  The Service and the Software is intended for your use only, and provided to you “as is”, and are subject to modification from time to time and at Chaos Sumo’s sole discretion.  Chaos Sumo alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service or the Software, which You hereby assign to Chaos Sumo.

  1. Restrictions

Access to the Services may require You to install certain software applications.  You will not, and will not permit any third party to: reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such statute), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, the Software, or any documentation or data related thereto; modify, translate, or create derivative works based on the Services or the Software; use the Services or the Software for timesharing or service bureau purposes or for any purpose other than Your own internal business purposes; or use the Services or the Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws) and intellectual property.

There are no limits on the amount of data You can discover in Your S3 buckets.  There are some limits to the amount of data You can model and query.  You can model up to 1GB per object group, are limited to 10MB per query via the UI, and are limited to 100MB per query via Chaos Sumo’s API.  Chaos Sumo may adjust resource limitations at its discretion.

  1. Support Service

Support for the Service shall be provided to you in accordance with the terms specified on a support portal found within the Software. (“Support”).  In connection with the continued development of its beta products, Chaos Sumo expects that You will provide reasonable feedback to Chaos Sumo through such support portal.

  1.  Passwords; Primary Contact

You are responsible for establishing a username and password (or any other means required by Chaos Sumo) for verifying that only You and Your appropriate designated employees have access to any administrative functions of the Services and the Software.  You will be responsible for maintaining the security of Your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your account with or without Your knowledge or consent.

You will designate an individual who will be responsible for all matters relating to this Agreement (“Primary Contact”).  You may change the individual designated as Primary Contact at any time by providing written notice to Chaos Sumo.  

  1. 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 technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees 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 any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the 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. For the avoidance of doubt, Chaos Sumo may collect data with respect to and report on aggregate measures of the Services’ performance and other measures to enhance the performance of the Services.

Chaos Sumo agrees that all information and data generated, processed, or stored on the Service (as intended usage of the Service), including Customer’s log and machine-generated data produced by applications and systems are Customer’s Proprietary Information.  Except for such Proprietary Information, Customer acknowledges that Chaos Sumo does not wish to receive any Proprietary Information from Customer and that is not necessary for Chaos Sumo to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Chaos Sumo may reasonably presume that any other information received from Customer is not confidential or Proprietary Information.

Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure of the terms and conditions of this Agreement is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

  1. Payment

The beta service will be free to use for all customers during the beta period but will be subject to some restrictions as outlined in Section 2 above (Restrictions).

  1. Data Collection

You acknowledge and agree that Chaos Sumo may collect certain Proprietary Information as a result of your access or use of the Service and the Software.  All such Proprietary Information will be deleted immediately upon termination of the Subscription Term.

  1. Cancellation or Termination of Service

Chaos Sumo may, without prior notice, immediately terminate, limit Your access to or suspend Your account and use of the Service, and Chaos Sumo expressly reserves the right to suspend Your account and use of the Service at any time during the Subscription Term.

  1. Limitation of Liability and Indemnity

IN NO EVENT SHALL CHAOS SUMO OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION AND DATA), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF CHAOS SUMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

THE TOTAL LIABILITY OF CHAOS SUMO, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, ONE HUNDRED AND FIFTY U.S. DOLLARS ($150).

You agree to indemnify and hold Chaos Sumo and its affiliates and suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Service or the Software or breach of this Agreement (collectively referred to as “Claims”).  Chaos Sumo reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims.  You agree to reasonably cooperate as requested by Chaos Sumo in the defense of any Claims.

  1. Warranty

Chaos Sumo will undertake commercially reasonable efforts to make the Services available and provide Support in accordance with the levels set forth hereunder.  Chaos Sumo does not warrant that the Service shall be uninterrupted and error free.

THE SERVICE, THE SOFTWARE, ANY DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  CHAOS SUMO AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER CHAOS SUMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Other Provisions

(a)  Governing Law.  This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the Commonwealth of Massachusetts without reference to conflict of laws principles.

(b)  Assignment.  You shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of Chaos Sumo.  Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(c)  Export Controls. You acknowledge that Chaos Sumo’s website, the Service, and the Software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government.  Diversion contrary to U.S. law is prohibited.  Without limiting the foregoing, You agree that (1) You are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) You are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) You will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law.

(e)  Modification.  This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected.  Chaos Sumo reserves the right to modify the terms of this Agreement at any time without prior notice.  The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other breach of any term hereof.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.