Terms and Conditions
optimyze.cloud PreRelease Hosted Service Terms
(last updated August 17, 2021)
optimyze provides an online software-as-a-service that enables its customers to perform analytics on their cloud services’ usage metrics.
PLEASE NOTE THAT THE OPTIMYZE SDK/API, HOSTED SERVICE AND SOFTWARE ARE PRERELEASE TECHNOLOGY. OPTIMYZE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPTIMYZE SDK/API, HOSTED SERVICE, SOFTWARE, AND ANY OTHER OFFERING MADE AVAILABLE UNDER THESE SERVICE TERMS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE OPTIMYZE SDK/API, HOSTED SERVICE, SOFTWARE, AND ANY OTHER OFFERING MADE AVAILABLE UNDER THESE SERVICE TERMS IS ENTIRELY AT YOUR OWN RISK.
The following terms and conditions (the “Service Terms”) are a legal contract between you (or “Customer” as defined below) and optimyze, and governs the use of and access to the Hosted Service by you, your agents and your individual users whether in connection with a paid or free trial subscription to the Hosted Service. By selecting the “agree” or “accept” option or by using optimyze’s Hosted Service that are offered subject to these Service Terms, you are agreeing to be bound by these Service Terms. Please read them carefully before proceeding. If you have any questions please contact us using the contact form at email@example.com or optimyze.cloud Inc, 2815 Elliott Ave Suite 100, Seattle, WA 98121, United States.
In these Service Terms, “optimyze” refers to optimyze.cloud Inc., and “Customer” refers to the subscriber to the optimyze Hosted Service which has agreed to an Order Form or, in the case of an unpaid trial subscription to the Hosted Service, by creating an account to access the Hosted Service. Customer may not use the Hosted Service unless it accepts these Service Terms and has the power and legal right to form a contract with optimyze. Any individual subscribing to or using the Hosted Service in the name of or as part of his or her responsibilities within a company or other organization, or who submits to the Hosted Service data controlled by such company or organization, represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
“Agreement” means these Service Terms and (if applicable) an Order Form agreed by the parties.
“Authorized User” means an individual employee or agent of Customer who has been assigned unique credentials to access and use the Hosted Service, whether or not that individual is accessing or using the Hosted Service at any particular time.
“Customer Data” consists of data Customer makes available for processing by the Hosted Service and the results of the Hosted Service’ analysis of the Customer Data.
“Hosted Service” means the prerelease hosted services for intelligent cloud service usage analysis, to be supplied by optimyze as specified in the Order Form and delivered by optimyze’s cloud platform.
“Local Agent(s)” means the prerelease software, in executable form only, which optimyze makes available for download and installation in Customer-controlled cloud infrastructure instances in order to collect data on the usage of such cloud infrastructure service when applicable for Customer’s use of the Hosted Service, and all updates and revisions of such software.
“Order Form” means optimyze’s online or written order form or account setup form or other written agreement, as submitted by Customer and accepted by optimyze, that specifies the pricing and any commercial terms for the use of the Hosted Service, and that references these Service Terms.
“Software” means the Local Agent(s) and other optimyze proprietary prerelease software and associated documentation, used to provide the Hosted Service.
“optimyze SDK/API” means any software development kit and application programming interfaces provided by optimyze as a mechanism for access to and utilization of the Hosted Service.
2. Hosted Service
Authorization to Use. Subject to Customer’s compliance with the Agreement, optimyze will provide Authorized Users with access to and use of the Hosted Service which Customer has purchased and for which Customer pays, or which optimyze has made available to Customer free of charge, solely for Customer’s internal business purposes and in accordance with optimyze’s relevant end-user documentation. The Hosted Service and optimyze SDK/API may be used only in accordance with the documentation and specifications provided by optimyze. Customer and its Authorized Users will access the optimyze SDK/API and Hosted Service using the login credentials and optimyze SDK/API key(s) assigned by optimyze. optimyze may monitor the use of the Hosted Service to ensure quality, improve optimyze products and services, and verify compliance with the Agreement. The use of the Hosted Service is further subject to any usage limitations indicated in the Order Form or in optimyze’s applicable service description referenced therein or otherwise provided by optimyze.
License to Local Agent(s). Subject to the terms and conditions of this Agreement, optimyze grants Customer a limited, non-exclusive, non-transferable license to reproduce, install in servers or cloud infrastructure instances owned or controlled by Customer, and use the Local Agent(s) only for Customer’s internal use in connection with its ordinary business operations using the Hosted Service.
No Maintenance or Support. optimyze may provide maintenance or support for the optimyze SDK/API, Hosted Service and Software in its sole discretion. Customer expressly agrees that the Hosted Service and Software may contain errors, and that optimyze has no obligation to correct any such errors.
Restrictions. Customer may not: (a) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Hosted Service, Software or any other associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) provide any third parties with direct access to the optimyze SDK/API, Hosted Service or Software; (c) provide any third parties with access to any of the Hosted Service or Software, or use any of the Hosted Service for time sharing or similar purposes for the benefit of any third party, including without limitation by selling, renting, licensing or otherwise disclosing any elements of the Hosted Service; (d) remove any copyright or proprietary notices contained in the Hosted Service; (e) breach, disable or tamper with, or develop, use or attempt any workaround for, any security measure or monitoring system provided or used by optimyze in connection with the Hosted Service or optimyze SDK/API; (f) access the Hosted Service via any automated system, web crawler or non-human user other than access through and as implemented in the optimyze SDK/API; (g) introduce into the Hosted Service any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (h) access or use (or permit a third party to access or use) the Hosted Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Hosted Service or for any other benchmarking or competitive purposes; or (i) interfere or attempt to interfere in any manner with the proper workings of the optimyze SDK/API or Hosted Service, or engage in any activities that adversely affect the functionality or performance of the optimyze SDK/API or Hosted Service. All rights in the Hosted Service and Software not expressly granted herein are reserved.
Third Party Integrations. optimyze may offer Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties ("Third Party Integration Providers"). Such functionality may be subject to the payment of additional fees if not part of optimyze’s standard offering. Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers and complying with the terms of such contractual relationship. optimyze shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by optimyze’s integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers. If Customer has activated the Salesforce Third Party Integration, the Supplemental Salesforce Integration Terms apply.
Availability. The optimyze SDK/API, Hosted Service, and Software are intended for evaluation purposes and not for production use. optimyze may discontinue or change the optimyze SDK/API, Hosted Service, and Software at any time in optimyze’s sole discretion and may never make them available for production use. If optimyze does make the optimyze SDK/API, Hosted Service, and Software available for production use, continued use will be subject to purchasing a license to do so, and agreement to new terms and conditions governing such use.
3. Customer Obligations
Responsibilities in Using Hosted Service. Customer is responsible for: (a) maintaining the confidentiality of any user IDs, passwords and other credentials associated with its Hosted Service account, (b) all activities that occur with respect to Customer’s account, (v) Customer’s use of the Hosted Service and compliance with the Agreement, and (d) the Customer Materials, and any other information Customer provides to optimyze through any mechanism. Customer is and shall remain liable for all actions and omissions of its Authorized Users hereunder or under any applicable separate agreement.
Compliance. Customer shall use the Hosted Service exclusively for proper and legal purposes. In connection with its use of the Hosted Service and all instructions to optimyze concerning the processing of data using Hosted Service, Customer will comply with all applicable laws, regulations, the rights of others, and all policies of and Customer agreements with the owner or operator of any platform with which Customer integrates (or requests that optimyze integrate) the Hosted Service.
Use Obligations. Customer shall not directly or indirectly, in connection with the use of the Hosted Service: (a) facilitate or promote illegal activity, or distribute illegal content; (b) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (c) communicate with or collect information from children under the age of 16 years.
Correction; Suspension. If Customer’s use of the optimyze SDK/API or Hosted Service is deemed by optimyze, in its sole discretion, to not meet the letter or spirit of the standards set forth in the Agreement, optimyze may request that Customer make changes to bring its practices into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to optimyze at law or in equity, optimyze is authorized to suspend Customer’s access to the Hosted Service, without liability to Customer. Customer agrees and acknowledges that optimyze shall have the right to monitor Customer’s use of the optimyze SDK/API and Hosted Service from time to time. optimyze reserves the right to immediately suspend, in whole or in part, Customer’s access to the Hosted Service and optimyze’s provision of the Hosted Service in order to prevent imminent harm to optimyze or a third party.
4. Data, Customer Licenses and Ownership
Customer Data. Customer hereby grants to optimyze a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use both (a) internal Hosted Service analytic and log data regarding the processing of Customer Data and use of the Hosted Service, and (b) Customer Data solely in a de-identified, aggregated form, to improve the Hosted Service, including in connection with the improvement of user interface and experience, and the creation and development of analytical and statistical analysis tools related to collected data.
Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data. optimyze will retain Customer Data subject to any time or storage limitations set forth in the relevant Order Form for the Hosted Service, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation.
Ownership; Feedback. optimyze agrees that as between optimyze and Customer, Customer will own the Customer Materials. As between optimyze and Customer, the Hosted Service and all software, data and technologies embodied in or used to provide the Hosted Service, including data and information that is not Customer Data, and all intellectual property rights in or relating to any of the foregoing, is owned by optimyze. Customer and / or authorized Users may choose to submit comments, suggestions, enhancement requests, or recommendations (collectively, “Feedback") about the Hosted Service or other optimyze offerings. optimyze shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any Feedback into the Hosted Service or other optimyze offerings.
5. Term and Termination
Termination. Your right to use the Hosted Service under this Agreement shall continue until terminated. Either party may terminate these this Agreement for any reason or no reason upon written notice. Optimyze may terminate this Agreement by discontinuing the availability of the Hosted Service on a pre-release basis. Customer’s right to use the Hosted Service will automatically terminate upon any termination of the Agreement.
Survival. The following provisions will survive expiration or termination of the Agreement: Sections 1, 2, 3.4, 5, 6.2, 7, and 8 through 11.
Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the parties’ respective use and provision of the Hosted Service that should be reasonably understood to be confidential. The Hosted Service and Software are optimyze Confidential Information. The Customer Data are Customer Confidential Information. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (c) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
ANY USE OF THE OPTIMYZE SDK/API, HOSTED SERVICE, SOFTWARE, AND ANY OTHER OFFERING MADE AVAILABLE UNDER THIS AGREEMENT IS AT CUSTOMER’S OWN RISK. THE OPTIMYZE SDK/API, HOSTED SERVICE, SOFTWARE, AND ANY OTHER OFFERING MADE AVAILABLE UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. OPTIMYZE EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE LAB SERVICESFOREGOING, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE HOSTED SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS, AND WILL HAVE NO LIABILITY FOR ANY CLAIM, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE OPTIMYZE SDK/API, HOSTED SERVICE, SOFTWARE, AND ANY OTHER OFFERING MADE AVAILABLE UNDER THIS AGREEMENTTHE LAB SERVICES, OR THE HOSTED SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY OPTIMYZE SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY OF THE OFFERINGS TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR FOR ANY AMOUNT IN EXCESS OF FIVE HUNDRED DOLLARS ($500).
Assignment. Neither party may assign the Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (a) to any entity controlling, controlled by, or under common control with, the transferring party, where “control” means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (b) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Any attempt to assign the Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party’s successors and permitted assigns.
Government End Users. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Hosted Service, nor any direct product thereof, are: (a) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (b) used for any purposes prohibited by the such export laws and regulations.
Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
Governing Law. The Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
Revisions to Service Terms. optimyze may change these Service Terms and its policies from time to time. We may inform Customer of any such changes by posting the revised version(s) to our website at the same URL as the original version(s), and providing notice by email or through the Hosted Service. If Customer doe not agree with the change, its sole and exclusive remedy is to cease the use of the Hosted Service or other offering made available under the Agreement and terminate the Agreement. Continued use of the Hosted Service after we provide notice of such a change shall constitute acceptance of the changed Agreement.
Entire Agreement; Priority. These Service Terms together with the Order Forms and any documents expressly referenced herein constitute the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.