RudderStack Master Services Agreement
The most recent prior version of these Terms of Service is available here.
1. RUDDERSTACK RESPONSIBILITIES
1.1 – Provision of Services
Subject to the terms and set forth in this Master Services Agreement (“Agreement”), RudderStack will provide Customer the Services purchased on the website www.RudderStack.com (“Site”) for the feeslisted here https://www.rudderstack.com/pricing/ (“Fees”) for self-service Customers or detailed in a signed Order Form, if applicable. “Services” means the native customer data platform provided by RudderStack (including any corresponding SDKs, APIs, documentation or software that may be made available by RudderStack in connection with such service (“Software”)), and subsequent enhancements, updates and bug fixes to the foregoing made generally available by RudderStack for no additional Fee (“Updates”), but specifically excludes Third-Party Products. “Third-Party Product” means a non-RudderStack product or application that Customer chooses to integrate with or use in connection with the Services.“Order Form” means a document specifying the Services to be provided hereunder and Fees to be paid by Customer, signed by Customer and RudderStack. Professional services, if any, shall be negotiated via a separate statement of work (“SOW”).
1.2 – Protection of Customer Data
RudderStack will maintain a security program materially in accordance with industry standards that is designed to (a) ensure the security of Customer data uploaded by Customer to the Services, including Customer’s end user data (collectively “Customer Data”); (b) protect against threats or hazards to the security of Customer Data; and (c) prevent unauthorized access to Customer Data.RudderStack’s security safeguards include measures for preventing access, use, modification or disclosure of Customer Data by RudderStack personnel except (i) to provide the Services and prevent or address service or technical problems, (ii) as required by applicable law, or (iii) as Customer expressly permits in writing or under this Agreement.RudderStack will not materially diminish the protections provided in this Section during the term of this Agreement.
1.3 - Data Privacy
With respect to any personal data subject to Data Privacy Laws (as defined in the DPA) that Customer is permitted to transmit in connection with the Services (such as IP addresses or user IDs), the terms of the data processing addendum, ("DPA"), which is attached hereto as Exhibit B, shall apply. If there is a conflict between this Agreement and the DPA, the DPA shall govern.
1.4 – Beta Services
From time to time, Customer may have the option to participate in a program with RudderStack where Customer gets to use Alpha or Beta services, products, features or documentation (collectively, “Beta Services”) offered by RudderStack. These Beta Services may contain bugs, errors, defects or harmful components. RudderStack does not provide any indemnities, service level commitments or warranties, express or implied, including warranties of merchantability, title, non-infringement, and fitness for a particular purpose, in relation thereto, Customer or RudderStack may terminate Customer’s access to Beta Services at any time.
2. PROPRIETARY RIGHTS
2.1 – Access to Services and Software
Subject to the terms of this Agreement, RudderStack hereby grants to Customer, for the term set forth on the applicable Order Form, a non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use the Services (including the Software), for Customer’s internal business purposes only.
2.2 – Reservation of Rights
RudderStack retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the RudderStack Materials, Software, and Services, all improvements, enhancements or modifications thereto, and anything developed and delivered under this Agreement, including all System Data.“System Data” means anonymized and aggregated user and other data and information collected, derived, or otherwise generated by the Services that may be used by RudderStack to create logs, statistics and reports regarding performance, availability, integrity and security of the Services (e.g., aggregate response rate). No rights are granted to Customer hereunder except as expressly set forth in this Agreement.
2.3 –Customer Data License
Customer shall own all right, title and interest in and to the Customer Data, including any data based on or derived from the Customer Data and provided to Customer as part of the Services, but does not include System Data, any dashboards for displaying results, report templates or any other technology or components of the Services created, developed, used or provided by RudderStack.Customer hereby grants RudderStack a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, transfer and process the Customer Data for the sole purpose of RudderStack providing the Services and support to Customer under the terms of the applicable Order Form or SOW and this Agreement.
2.4 – Feedback
Customer may from time to time provide RudderStack suggestions or comments for enhancements or improvements, new features or functionality or other feedback(“Feedback”) with respect to the Services.RudderStack will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. RudderStack will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
3. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
3.1 – Credentials
As part of the registration process, Customer will identify an administrative username and password for Customer’s account (the “Account”). Customer may use the administrative username and password to create standard Users (each with a user password) up to the maximum number permitted in the applicable Order Form. RudderStack reserves the right to refuse registration of or cancel passwords it deems inappropriate or not in compliance with RudderStack’s password policy specified on the website at the time of registration of the Account. Customer shall be responsible for the acts or omissions of any person or User who accesses the Services using passwords or access procedures provided to or created by Customer.Customer shall be responsible for all activities that occur under Customer’s Account. Customer must provide true, accurate, current and complete information as requested during the Account creation process, and must also keep that information true, accurate, current and complete. “User” means an individual Customer invites or permits to use the Services, including employees, contractors, agents and consultants of Customer or an approved Affiliate.
3.2 – Customer Restrictions
Customer will not (and will not allow any Third-Party to) directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software or Services (or any documentation or data related to the Services); (b) modify, translate, or create derivative works based on the Software or Services; (c) copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software or Services; (d) use the Services or Software for the benefit of a Third-Party, in violation of any applicable laws or regulations or outside the scope expressly permitted hereunder (including in violation of the usage restrictions set forth in the applicable Order Form); (e) collect, process, store or transmit any Customer Data in violation of any applicable laws or regulations or privacy policies, agreements or other obligations Customer may maintain or enter into with its end users; (f) collect, transmit or provide to the Services hereunder any financial information of any nature, or any medical information of any nature, including bio-metric or genetic data, or any social security numbers, driver’s license numbers, birth dates, passwords, personal bank account numbers, passport, government-issued ID or visa numbers and credit card numbers), or any names or email addresses in combination with any phone numbers or mailing addresses, (other than those of Customer’s Users), or any other sensitive personal data, unless specified on an Order Form; (g) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable; (h) use or access the Services to develop a product or service that is competitive with the Services or engage in competitive analysis or benchmarking; (i) incorporate the Services or Software into a product or service Customer provides to a Third-Party or publicly disseminate information regarding the performance of the Software or Services; or (j) remove any proprietary notices or labels(all of the foregoing, collectively, the “License Restrictions”).
3.3 – Customer Responsibilities
Customer shall be responsible for: (a) its Users’ compliance with this Agreement, Order Forms and SOWs; (b) compliance with any and all applicable Third-Party terms of service, privacy policies and similar documents for platforms, networks and/or websites that Customer runs its applications on; (c) the legality, accuracy and quality of Customer Data, including ensuring that Customer’s use of the Services or Software to collect, process, store and transmit Customer Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its end-users; and (d) use commercially reasonable efforts to prevent the unauthorized access to or use of the Services or Software. In addition, in the event RudderStack is legally or contractually required to change or modify the Software or Services in order to ensure the Software or Services complies with the terms of service or privacy policies of various platforms, networks and/or websites, then Customer shall be responsible for making all necessary changes to Customer’s applications and websites in order to continue using the Services. Customer also maintains all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Customer’s purposes.
3.4 - Third-Party Products
Customer may choose to use or procure Third-Party Products in connection with the Services. Customer’s use of any Third-Party Product is subject to a separate agreement between Customer and the Third-Party provider of the Third-Party Product. If Customer enables or uses Third-Party Products with the Services, RudderStack will allow the Third-Party Product providers to access and use Customer Data as required for the interoperation of the Third-Party Product and the Services. This may include transmitting, transferring, modifying or deleting Customer Data. Any Third-Party Product provider’s use of Customer Data is subject to the applicable agreement between Customer and the Third-Party Product provider. RudderStack cannot guarantee the continued availability of integrations of Third-Party Products with the Services, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Product ceases to make the Third-Party Product available for interoperation with the corresponding Services features in a manner acceptable to RudderStack.
3.5 - Overages
For free accounts created on the Site, RudderStack reserves the right to suspend Services immediately once a specified monthly event limithas been reached. For self-service account created on the Site, RudderStack will make commercially reasonable efforts to alert Customer of any approaching monthly event limits, and shall bump Customer up to the next highest pricing tier automatically when a Customer hits a specified event limit multiple times. If a self-service Customer exceeds a specified monthly event limit three times, RudderStack reserves the right to suspend Services.
4. CONFIDENTIALITY
4.1 – Definition of Confidential Information
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
4.2 – Protection of Confidential Information
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any Third-Party without the other party’s prior written consent, except as otherwise permitted hereunder.However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof (to the extent legally permitted), will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.Neither party will disclose the terms of this Agreement to any Third-Party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5. PAYMENT OF FEES
5.1 - Fees
Customer will pay RudderStack the fees for the Services as listed on the applicable Order Form and/or SOW (“Fees”). Fees will typically be calculated based on either Monthly Event Volume or Monthly Tracked Users as specified in an applicable Order Form, with overage premiums established for monthly usage above purchased limits. The Fees for each renewal term shall be the then-current Fees for the Services in effect at the time of the renewal unless otherwise set forth in an Order Form or SOW.Customer agrees to pay all Fees in the United States dollars. All payment obligations are non-cancelable and, unless otherwise provided in the Agreement, all Fees paid under this Agreement are non-refundable.
5.2 – Invoicing and Payment
Unless otherwise set forth in the applicable Order Form, payment for all invoices is due within thirty (30) days of receipt of the invoice, or the Services may be suspended or terminated. Unpaid invoices are subject to a finance charge of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collectionIn addition, If Customer fails to remit payment by the due date set forth in the applicable Order Form, all outstanding Fees due under such Order Form will become due and payable immediately without further action or notice.
5.3 – Payment Disputes
If Customer believes that RudderStack has billed Customer incorrectly, Customer must contact RudderStack no later than fifteen (15) days after receipt of invoice in order to receive an adjustment or credit.Inquiries should be directed to RudderStack’s accounting department, billing@RudderStack.com. RudderStack shall respond to Customer within three (3) business days after receiving such inquiries.
5.4 – Taxes
Customer shall be responsible for all taxes, duties and other governmental charges associated with the Software or Services other than U.S. taxes based on RudderStack’s net income.If Customer is required by law to withhold any taxes, Customer must provide RudderStack with an official tax receipt or other appropriate documentation, and all fees are payable hereunder without any deduction for such withheld taxes or otherwise. If RudderStack has the legal obligation to pay or collect taxes for which Customer is responsible under the terms of the Order Form and this Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides RudderStack with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5 – Purchase Order
If the Customer requires the use of a purchase order, the Customer is responsible for providing the applicable purchase order at the time of purchase. The Customer acknowledges and agrees to the extent of any inconsistency between this Agreement and any terms and conditions attached to the Customer’s purchase order, the terms of this Agreement will prevail. The parties acknowledge and agree that any pre-printed standard terms and conditions attached to or on the back of any purchase order will not apply to this Agreement.
5.6 – Suspension of Services
If any Fees owing by Customer under this Agreement or any Order Form or SOW is thirty (30) days or more overdue, RudderStack may, without limiting its other rights and remedies, accelerate Customer’s unpaid Fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
6. TERMINATION
6.1 - Term
The term of this Agreement will commence on the effective date of the initial Order Form and continue until terminated as set forth below.Subject to earlier termination as provided below, the initial subscription term of the applicable Order Form is as specified in such Order Form, and shall be automatically renewed for successive terms of twelve (12) months, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
6.2 - Termination
Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms and SOWs then in effect.In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if (a) the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within thirty (30) calendar days of notice, or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all of its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. If this Agreement is terminated as a result of a material breach by Customer, then Customer shall pay in full all remaining Fees payable through the remainder of each outstanding Order Form or if Customer has prepaid any Fees, then those Fees are nonrefundable. If this Agreement is terminated by Customer due to a material breach by RudderStack, then RudderStack shall refund Customer on a pro-rata basis any prepaid Fees covering the remainder of each outstanding Order Form after the effective date of termination.
6.3 - Survival
Upon expiration or termination of this Agreement, all rights and obligations will immediately terminate except that any accrued payment obligations and other terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to confidentiality, disclaimers, indemnification, limitations of liability and termination and the miscellaneous provisions below.Notwithstanding that RudderStack does not store data routinely as a function of providing the Services, RudderStack shall make available to Customer any Customer Data in its possession thirty (30) days after the expiration or termination, after which RudderStack shall have no further obligation to Customer with respect to Customer Data and may, in its sole discretion, permanently delete Customer Data.
7. MUTUAL INDEMNIFICATION
7.1 – Indemnification by RudderStack
RudderStack will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a Third-Party alleging that the use of the Services as permitted hereunder infringes any United States patent, trademark or copyright and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by RudderStack) in connection with any such Claim. The foregoing obligations do not apply with respect to the Services or portions or components thereof (a) not supplied by RudderStack, (b) made in whole or in part in accordance with Customer specifications, or (c) combined with other products, processes or materials of Customer’s business where the alleged infringement would not have occurred without such combination (collectively, the “Excluded Claims”).If the use of the Services by Customer has become, or in RudderStack’s opinion is likely to become, the subject of any claim of infringement, RudderStack may at its option and expense (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement or the applicable Order Form and refund Customer on a pro-rata basis any prepaid Fees covering the remainder of the term of the applicable Order Form(s) after the effective date of termination. This Section states RudderStack’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a Third-Party.
7.2 – Indemnification by Customer
Customer will defend RudderStack against any Claim made or brought against RudderStack by a Third-Party arising out of the Excluded Claims or any breach of the License Restrictions, and Customer will indemnify RudderStack for any damages finally awarded against RudderStack (or any settlement approved by Customer) in connection with any such Claim.
- 7.3 – Indemnification Procedure
Each party's indemnification obligations are conditioned upon the indemnified party: (a) promptly notifying the indemnifying party of any Claim in writing; and (b) cooperating with the indemnifying party in the defense of any Claim.The indemnified party shall have the right to participate in the defense of any Claim with counsel selected by it subject to the indemnifying party's right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the indemnified party. Notwithstanding any other provision of this Agreement, the indemnifying party shall not enter into settlement of any Claim without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
8. WARRANTY AND DISCLAIMER
8.1 – Mutual Representations
Each party represents to the other that: (a) it is duly organized and a validly existing entity, in good standing under the laws of the jurisdiction in which it was formed, and that it has the right and capacity to enter into this Agreement; (b) it has full power and authority to grant the rights granted by it under this Agreement and that there are no outstanding obligations or agreements that conflict with this Agreement; and (c) this Agreement, when signed by its duly authorized representative, constitutes a valid and legally binding obligation on that party that is enforceable in accordance with the terms of this Agreement.
8.2 – RudderStack Warranties
RudderStack warrants that: (a) it will use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses or similar harmful materials into the Services (but RudderStack is not responsible for harmful materials submitted by Customer or Customer’s Users); and (b) the Services will perform materially in accordance with the applicable documentation (collectively, “Performance Warranty”). In the event of a breach of the Performance Warranty, RudderStack will use commercially reasonable efforts to correct any non-conformity. In the event RudderStack determines corrections to be impracticable, RudderStack or Customer may terminate the applicable Order Form and this Agreement. In the event the applicable Order Form and this Agreement are terminated as provided herein, RudderStack will refund to Customer any pre-paid Fees for use of the Services for the termination portion of the applicable Term. The Performance Warranty will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer noticed the non-conformity, (ii) if the non-conformity is caused by misuse, unauthorized modifications or Third-Party Products, or other third-party products, services, software or equipment, or (iii) Beta Services. RudderStack’s sole liability and Customer’s sole exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 8.2.
8.3 - Disclaimers
RUDDERSTACK DOES NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES WILL BE 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 SERVICE OR ANY PROFESSIONAL SERVICES.THE SERVICE AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND RUDDERSTACK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND ACCURACY.RUDDERSTACK DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE OR ANY PROFESSIONAL SERVICES. RUDDERSTACK DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE OR ANY PROFESSIONAL SERVICES IS ACCURATE OR COMPLETE OR WILL ALWAYS BE AVAILABLE.
IN ADDITION, CUSTOMER ACKNOWLEDGES THAT RUDDERSTACK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. RUDDERSTACK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. RUDDERSTACK IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTYPRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
9. LIMITATION OF LIABILITY
9.1 - Limitation of Liability
9.1.1 - Consequential Damages Waiver
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS,COSTS OF DELAY, REPUTATIONAL HARM, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES),REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE.
9.1.2 - Damages Cap
EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO RUDDERSTACK FOR THE APPLICABLE SERVICE, OR THE APPLICABLE PROFESSIONAL SERVICES IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. THE ABOVE LIMITS OF LIABILITY ARE EXCLUSIVE AS TO ALL REMEDIES AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS OF LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY INSTANCE OR SERIES OF INSTANCES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, A PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
9.2 - Survival
The parties agree that the limitations and exclusions set out in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. The terms in this Section 9 are a fundamental basis of the bargain and reasonable, having regard to all the relevant circumstances and the levels of risk associated with each party’s obligations under this Agreement.
10. GENERAL PROVISIONS
10.1 – Entire Agreement; Waiver; Conflicts
Both parties agree that the Order Forms, SOWs and this Agreement, including all exhibits, are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement (including, with respect to the subject matter hereof, any non-disclosure or confidentiality agreement previously entered into between the parties and any online terms of service or click-through agreements within the Services), and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. If there is a conflict between this Agreement and any Order Form or SOW, then the Order Form or SOW shall govern.
10.2 - Severability
In the event that any part or provision of this Agreement is declared fully or partially invalid, unlawful or unenforceable by a court of competent jurisdiction, the remainder of the part or provision and the Agreement will remain in full force and effect, if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable.
10.3 - Assignment
Neither party may assign an Order Form, SOW, or this Agreement without the other party’s prior written consent, exceptthat a party may assign all Order Forms, SOWs and this Agreement upon written notice without such consent to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of Customer’s voting securities or assets.Non-permitted assignments are void.This Agreement is binding upon, and inures to the benefit of, the parties and their respective successors and assigns.
10.4 - Independent Contractors
No agency, partnership, joint venture, or employment is created as a result of the Agreement and each party does not have any authority of any kind to bind or attempt to bind the other party in any respect whatsoever.
10.5 - Notices
All notices under the 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. Notices to Customer must be sent to the email or other address as set forth in Customer’s Account information.Notices to RudderStack must be sent to the following address: RudderStack, Inc., 631 Howard Street, Floor 5, San Francisco, CA 94105, Attn: Legal or legal@RudderStack.com.
10.6 - Governing Law and Venue
This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.7 - Export Restrictions
Customer must not access or use the Services in violation of any U.S. export embargo, prohibition or restriction.In addition, Customer must comply with all applicable laws and regulations governing the export, re-export and transfer of the Services and Customer is responsible for obtaining any required export or import authorizations.
10.8 - Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
10.9 – Exclusion of United Nations Convention on Contracts
The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to any Order Form, SOW and this Agreement.
10.10 - U.S. Foreign Corrupt Practices Act and U.K. Bribery Act
RudderStack and Customer each represent and warrant to the other: (a) that it is aware of all anti-corruption legislation that applies to this Agreement and in particular the US Foreign Corrupt Practices Act 1977 and the U.K. Bribery Act 2010; (b) it has implemented rules and procedures that enable it to comply with this legislation and adapt to any future amendments thereto; (c) it has implemented appropriate rules, systems, procedures and controls for preventing the commission of corrupt acts, either by itself or its staff, and for ensuring that any evidence or suspicion of the commission of a corrupt act will be thoroughly investigated, and unless prohibited by confidentiality or applicable law, reported to the other party; (d) its records relating to its business, including accounting documents, are maintained and kept to ensure their accuracy and integrity; and (e) it has not made, offered, received, or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement (reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction).
10.11 - Counterparts; Facsimile and Electronic Signatures
This Agreement and any Order Form or SOW may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. This Agreement and any Order Form or SOW may be validly executed and delivered by facsimile or other electronic transmission (including e-mail), and a signature by facsimile, portable document format (.pdf) or other electronic transmission shall be as effective and binding as an original signature.