Engine Yard Terms of Service

These terms of service (“Terms of Service”) govern the provision by Engine Yard, Inc. (“Engine Yard”) to you ("Customer") of infrastructure, application hosting, support, customization, and other professional technical services (the "Services"), and Customer’s usage of the same, in connection with the Service Order Form(s) (as defined below) entered into by Engine Yard and Customer. By submitting a Service Order Form Customer agrees to be bound by these Terms of Service.

1. Services

Engine Yard shall use commercially reasonable efforts to provide the Services ordered by Customer pursuant to Service Order Forms. A “Service Order Form” is any service order form submitted by Customer and accepted by Engine Yard through the service order form process designated on its website located at https://www.engineyard.com/ (or any successor URL controlled by Engine Yard) ("Website") or any written service order form executed by Customer and Engine Yard, in each case to order Services. These Terms of Service are incorporated by reference into each Service Order Form, and together the Service Order Form(s) and these Terms of Service constitute this “Agreement.” In the event of any conflict between these Terms of Service and a Service Order Form, the Service Order Form shall govern to the extent of such conflict.

2. Payments

(a) Fees. Customer agrees to pay the fees stated in the Service Order Form. Engine Yard’s first invoice shall include a pro-rated portion of the monthly recurring fees for the period beginning on the date Engine Yard sends an e-mail to Customer that provides access codes and passwords for use in connection with the Services (“Commencement Date”) and ending on the last day of that calendar month, and may also include set up fees or fees for other Services. Engine Yard may require payment in full by Customer of the first invoice before beginning provision of the Services. Thereafter, unless otherwise specified on a Service Order Form, monthly recurring fees shall be invoiced in advance on or around the first day of each calendar month. Fees for hosting Services that are subject to metered pricing may have different payment terms, which terms shall be specified on the applicable Service Order Form or on the portion of the Website that sets forth pricing terms for such Services. All invoices for Services are due upon Customer’s receipt of the applicable invoice; provided that if a Service Order Form specifies that Customer shall pay by credit card, Engine Yard shall automatically bill Customer’s credit card in advance for each month’s Services and send a sales receipt to Customer for the same via e-mail. Unless otherwise set forth in a Service Order Form, all payments from Customer to Engine Yard in connection with this Agreement must be made in United States dollars. (b) Collections. Engine Yard may suspend any or all Services if payment for any Service is overdue for a period of 15 days after the date of first written (including by e-mail) notice from Engine Yard regarding such overdue payment. Customer agrees to pay Engine Yard’s then-current reinstatement fee following a suspension of Services for non-payment. Engine Yard may charge interest on amounts that are overdue by 10 days or more at the lesser of 1.5% per month or the maximum rate permitted by law. Customer agrees to pay Engine Yard’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs. (c) Early Termination. Without limiting any other remedy available to Engine Yard, if Engine Yard terminates this Agreement for Customer’s breach in accordance with Section 10(b)(i), 10 (b)(ii) or 10(b)(iii), Customer shall pay all fees due under this Agreement, including the monthly recurring fees for the remaining portion of the term of each Service Order Form, within 10 days following such termination. (d) Taxes. Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on any of the Services under this Agreement ("Taxes"). Customer shall be liable for and shall pay any and all such Taxes and related charges, however designated, imposed on the provision of the Services (excluding taxes based solely on Engine Yard’s net income) regardless of whether Engine Yard fails to collect the tax at the time the related Services are provided. When Engine Yard has the legal obligation to pay or collect such Taxes, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Engine Yard with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Engine Yard original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.

3. Acceptable Use

(a) Prohibited Behavior. Customer shall not, and shall not permit users of the Customer Application to, in connection with the Services, engage in, solicit or promote any activity that is illegal, violates the rights of others, or could subject Engine Yard to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Engine Yard or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Costumer Application or the Engine Yard System; (ii) interference with others’ usage of the Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software unless (1) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (2) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “add/remove” tool); (vi) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right; (vii) collection, storage, publication, transmission, viewing or other use of any content that is (1) legally obscene, (2) constitutes or promotes child pornography, (3) is in Engine Yard’s opinion excessively violent, incites violence, threatens violence or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, or (6) creates a safety or health risk to an individual or the public; (vii) any other activity that places Engine Yard in the position of fostering, or having liability for, illegal activity in any jurisdiction; or (ix) activity that violates the acceptable use policy or similar set of terms of a third party Engine Yard partner that are applicable to Services used by Customer (e.g., the terms of the Amazon Web Services Customer Agreement with respect to Engine Yard’s Solo service offering), provided that Engine Yard has made such policy or terms available to Customer in connection with the applicable Services. Engine Yard may suspend the provision of Services to Customer if Customer or a user of the Customer Application engages in any of the foregoing activities. (b) Security. Customer shall take reasonable security precautions in connection with its use of the Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Services and shall change its passwords periodically. If the Customer Application (as defined in Section 12) is hacked or otherwise accessed by a third party without authorization, Engine Yard may take the Customer Application offline until the intrusion is resolved. (c) Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Customer Application and the receipt and use of the Services, including the CAN-SPAM Act of 2003 and all other laws and regulations applicable to bulk or commercial e-mail. Engine Yard may monitor Customer’s compliance and may block the transmission of e-mail or other content that in Engine Yard’s opinion violates any such law or regulation. (d) Vulnerability Testing. Customer shall not attempt to probe, scan, penetrate or test the vulnerability of an Engine Yard system or network or to breach Engine Yard’s security or authentication measures, whether by passive or intrusive techniques, without Engine Yard’s prior written consent. (e) Cooperation with Investigations and Legal Proceedings. Engine Yard may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or Customer’s end users that Engine Yard believes violates applicable criminal law, and (ii) provide any information it has about Customer or Customer’s end users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request. (f) Other. (i) Customer must have valid and current information on file with its domain name registrar for any domain hosted on the Engine Yard network. (ii) Customer may only use IP addresses assigned to it by Engine Yard staff in connection with the Services. (iii) Customer agrees that if the Engine Yard IP numbers assigned to Customer’s account are listed on Spamhaus, Spews, NJABL or other abuse databases, Customer will be in violation of this Agreement, and Engine Yard may take reasonable action to protect its IP numbers, including suspension and/or termination of the Services, regardless of whether the IP numbers were listed as a result of Customer’s actions.

4. Customer Application; Customer Account

(a) Operation. Customer is solely responsible for design, development, configuration and operation of the Customer Application (subject only to Engine Yard’s obligation to host the Customer Application in accordance with this Agreement). Without limiting the foregoing, Customer is solely responsible for controlling the access, use, and security of the Customer Application, including the access to and security of the data residing in or processed via the Customer Application. Customer is also responsible for maintaining the security of the passwords and other measures used to protect access to Customer’s Engine Yard account and for all instructions provided to Engine Yard through Customer’s account, whether or not authorized by Customer.

5. Suspension of Services

(a) Suspension of Service. Engine Yard may suspend the provision of Services to Customer or remove any content transmitted via the Services without liability if Engine Yard reasonably believes that any Service is being used in violation of this Agreement or applicable law, if requested by a law enforcement or government agency, or as otherwise specified in this Terms of Service. Information on Engine Yard’s servers may be unavailable to Customer during a suspension of Services. (b) Notification of Suspension. Unless a law enforcement or government agency directs otherwise, Engine Yard shall use commercially reasonable efforts to notify Customer prior to suspending Services as permitted under this Agreement.

6. Warranties

Customer represents and warrants to Engine Yard that (a) the information Customer has provided for the purpose of establishing an account with Engine Yard is complete and accurate, and (b) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information during the term of this Agreement

7. Indemnification

Customer shall defend, indemnify and hold harmless Engine Yard from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys’ fees) brought or claimed by a third party arising out of or related to any of the following: (i) actual or alleged use of the Services (including the Customer Application) in violation of this Agreement or applicable law by Customer or users of the Customer Application; (ii) any dispute between Customer and its customers, contractors or end users; (iii) any actual or alleged infringement or misappropriation of third party intellectual property rights by the Customer Application or arising from data or other content posted or stored on the Engine Yard infrastructure or the Customer Application by Customer or its end users; and (iv) with respect to Excluded Services (as defined in Section 14), any breach of the Amazon Web Services Customer Agreement caused by Customer (as described in Section 14). Engine Yard shall notify Customer of any indemnified claim under this Section 7 and provide Customer at Customer’s expense with information and cooperation as necessary for Customer to defend Engine Yard from such claim. Customer shall not settle any indemnified claim under this Section 7 without the prior consent of Engine Yard, which shall not be unreasonably withheld.


8. Disclaimer of Warranties

EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND ENGINE YARD DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ENGINE YARD DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.


9. Limitation of Liability

IN NO EVENT SHALL ENGINE YARD OR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT UNLESS OTHERWISE EXPRESSLY AGREED IN A SERVICE ORDER FORM, THE SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES ENGINE YARD AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ENGINE YARD AND ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, SUPPLIERS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED SIX TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE ORDER FORMS IN EFFECT AT THE TIME OF THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND ABSENT SUCH LIMITATIONS ENGINE YARD WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT.

10. Termination

(a) Customer. If a Service Order Form specifies that Services are provided on a month-to-month basis and Customer is not satisfied with such Services, Customer may terminate such Service Order Form at the end of the then-current calendar month and receive a refund of any monthly recurring fees paid by Customer related to periods after the date of termination (if any), provided, however, that Customer shall pay Engine Yard within 5 days after such termination (or Engine Yard may offset against any Customer refund) any unpaid fees for Services related to periods up to and including the date of termination and the remaining portion of any setup fees that had been amortized over a period of time exceeding the date of termination (if any). If a Service Order Form specifies a term for Services other than a month-to-month term (e.g., a 3-month, 1-year, or 2-year term), Customer may not terminate such Service Order Form until the end of the specified term; provided that Customer may terminate any Service Order Form without liability (except for amounts due for Services through the effective date of termination) if Engine Yard materially breaches this Agreement and fails to cure such breach within 30 days of Customer’s written notice describing the breach in reasonable detail. (b) Engine Yard. Engine Yard may terminate this Agreement or the applicable Service Order Forms without liability as follows: (i) with respect to Excluded Services (as defined in Section 14), if Customer is paying by credit card and Customer’s credit card payment is declined by the card issuer, Engine Yard shall notify Customer and Customer shall have 48 hours to remedy such payment failure, and if such failure is not remedied in such time period Engine Yard may terminate the applicable Service Order Form or this Agreement by providing Customer 48 hours notice of such termination; (ii) without limiting the previous sentence, upon notice if Customer is overdue on the payment of any amount due hereunder for a period of 30 days past the date of first written (including by e-mail) notice from Engine Yard regarding such overdue payment; (iii) upon notice if Customer materially violates any other provision of this Agreement and fails to cure the violation within 30 days of a written notice from Engine Yard; (iv) upon 1 Business Day notice if Customer uses the Services in violation of a material term of this Agreement more than once (after having received notice from Engine Yard regarding the initial violation); or (v) upon 5 Business Days notice if Engine Yard is threatened with a legal claim for intellectual property infringement related to the provision of a Service and is unable through commercially reasonable efforts to obtain a license or modify such Service in a way that avoids an ongoing risk of liability. A “Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific U.S. time, excluding any day that banks in the United States are required or permitted to be closed.

11. Use of Data; EU Data Subjects; Security

(a) Customer Data. Engine Yard may use, process, transfer and disclose data of Customer and Customer’s end users that is stored in the Customer Application or otherwise stored on a network owned or controlled by Engine Yard as part of the Services (collectively, “Customer Data”) only to the extent necessary to provide the Services; provided that Engine Yard may also disclose Customer Data (i) to Engine Yard’s subcontractors in connection with the provision of Services to Customer (provided such subcontractors are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include Direct Customer Information (as defined below). (b) Direct Customer Information. Engine Yard’s use and disclosure of Customer contact, payment, financial and similar information collected by Engine Yard directly from Customer (“Direct Customer Information”) is governed by Engine Yard’s Privacy Policy located at https://www.engineyard.com/legal/privacy. In addition, Engine Yard may transfer Customer Data and Direct Customer Information to a third party in connection with a merger or sale of Engine Yard’s business or assets, in which case the resulting transferee will be permitted to obtain and use such information subject to the terms of this Terms of Service and Engine Yard’s Privacy Policy. (c) EU Data Subjects. If Engine Yard receives any personal information regarding individuals resident in the European Union (“EU Data Subjects”) from Customer or Customer’s end users in connection with the Services, including any such information that may be collected by or stored in the Customer Application or otherwise hosted on servers owned or controlled by Engine Yard, Customer agrees: (i) that Customer is the data controller with respect to such information; and (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such information, including obtaining all necessary consents from relevant EU Data Subjects and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights under the EU Data Protection Directive. Engine Yard will act as the data processor of such information and in that capacity will assist Customer in enabling it to comply with the EU Data Protection Directive as set forth in Engine Yard’s EU Safe Harbor Privacy Policy located at https://www.engineyard.com/legal/eusafeharborprivacypolicy. (d) Data Security. Engine Yard will use reasonable commercial efforts to prevent the unauthorized access, use or disclosure of Customer Data and Direct Customer Information located on Engine Yard servers, including the implementation of industry-standard measures designed to maintain the security of such data. Customer acknowledges, however, that Engine Yard cannot guarantee the security of such data given the nature of the Internet.

12. Service Levels

(a) Definitions. (i) “Customer Application” means a Ruby, Rails, or other application which is hosted by Engine Yard as part of the Services. (ii) “Scheduled Maintenance” means occasional maintenance to add resources, upgrade software, install security patches, etc., to the Engine Yard System. (iii) “Scheduled Service Uptime” means the total minutes in a month less the time for Scheduled Maintenance. (iv) “Engine Yard System” means Engine Yard’s infrastructure and systems (including software, hardware, documentation, the Website, and related items) used to perform the Services. (v) “System Availability” means the ability of the Engine Yard System to answer User requests successfully. (vi) “User” means an Internet user of a Customer Application. (b) System Availability. Engine Yard shall use commercially reasonable efforts to provide at least 99.9% System Availability in any given month (excluding those periods in which Engine Yard is performing Scheduled Maintenance). (c) Service Credits. In the event that Engine Yard does not meet the minimum monthly service level for System Availability set forth herein, Customer shall be entitled to Service Credits in accordance with Table A, which credits will be applied as a refund to Customer from Engine Yard. A Service Credit may not be transferred or applied to any other Engine Yard account. Customer’s sole and exclusive remedy for any unavailability or other failure by Engine Yard to provide a Service is the receipt of a Service Credit in accordance with the terms of this Agreement. The maximum cumulative credit for any and all applicable Service Credits in a month is 100% of the total recurring fee for that month for the affected Services payable by Customer. (d) Application Monitoring. Engine Yard checks for the availability of each Customer Application no less frequently than every 5 minutes. If a Customer Application is not available for 3 consecutive checks, or if Engine Yard becomes aware that User initiated requests are unsuccessful, Engine Yard will use commercially reasonable efforts to notify the Customer SPOC (as defined below) within the response times defined in Table B for a Severity 1 Problems. (e) Calculation of Service Credits and Payment Procedures. Engine Yard shall monitor the Customer Application to determine on a monthly basis if Customer is entitled to a Service Credit. Furthermore, if Customer believes that it is entitled to a Service Credit, Customer may submit a credit request by sending an e-mail to Engine Yard through Engine Yard’s online support system. If Engine Yard determines that Customer is entitled to a Service Credit, then Engine Yard will issue the Service Credit to Customer within one billing cycle. (f) Service Credit Exclusions. The System Availability service level does not apply to (and no Service Credits are available to Customer as a result of) any unavailability, suspension or termination of a Service (i) caused by factors outside Engine Yard’s reasonable control, including any force majeure event, (ii) that result from actions or inactions of Customer or of any third party, or (iii) that result from the Customer Application or other non-Engine Yard equipment, software or technology (other than third party equipment within Engine Yard’s direct control), (iv) Scheduled Maintenance, or (v) that result from a Service suspension or termination of Customer’s right to use a Service in accordance with the terms of this Agreement. (g) Scheduled Maintenance. Scheduled Maintenance typically occurs during the period of lowest anticipated system usage, which is generally between 12:00 a.m. and 5:00 a.m. U.S. Pacific Time on Sunday. During Scheduled Maintenance, certain components of the Engine Yard System may be offline, or may be operating in less redundant modes, or may be operating at reduced capacity levels, while maintenance is performed. Engine Yard will use commercially reasonable efforts to notify Customer via e-mail of Scheduled Maintenance at least 24 hours in advance. (h) Technical Contacts. Customer may contact Engine Yard by e-mail or phone in the case of outage or downtime or status change at notify@engineyard.com; 866-518-9275 (tech support, 24/7); or 866-518-9273 (sales, 24/7). Customer will provide Engine Yard with the name and contact information of a Customer Single Point of Contact (“Customer SPOC”) that Engine Yard can contact in the case of an outage.

13. Problem Management

(a) Trouble Ticketing. Customer shall create and e-mail to Engine Yard a support ticket in response to service abnormalities noticed by Customer. Each ticket shall contain: (i) a description of the problem, (ii) a description of any actions taken by Customer to produce and/or remedy the reported problem, and (iii) a proposed severity level classification based upon the severity level definitions set forth in Table B. (b) Severity Level Classification. Upon receipt of a support ticket from Customer, Engine Yard will respond to the reported problem in accordance with the severity level classifications set forth in Table B.

14. Excluded Services

Section 12 and Section 13 describe the service levels and problem management procedures for hosting Services provided using hardware owned or controlled by Engine Yard. Section 12 and Section 13, as well as Table A and Table B, do not apply to hosting Services that use third party hardware not controlled by Engine Yard (e.g., Engine Yard’s Solo service offering) (“Excluded Services”) and no service levels, service level credits or performance guarantees apply to Excluded Services. Engine Yard shall have no liability for the loss, destruction, alteration or unauthorized access to data stored on third party hardware as part of an Excluded Service. If Customer purchases an Excluded Service that is hosted on hardware provided by Amazon.com, Inc. or one of its affiliates ("Amazon"), Customer agrees to comply with, and that the use of such Excluded Service is subject to, the Amazon Web Services Customer Agreement located here, including its associated privacy notice, as such agreement is updated by Amazon from time to time (“AWS Agreement”). Please note in particular the sections of the AWS Agreement titled “Amazon Elastic Compute Cloud (Amazon EC2)” and “Downtime and Service Suspensions; Security.” Customer shall be responsible for liability arising from a breach of the AWS Agreement caused by an act or omission of Customer in connection with an Excluded Service. Engine Yard may suspend or terminate an Excluded Service that is subject to the AWS Agreement upon written notice to Customer (including by e-mail) if Amazon suspends or ceases providing such Service for any reason (whether generally or through Engine Yard), and Engine Yard may modify the pricing charged to Customer or features available with respect to such Service if Amazon modifies the pricing or features of such Service. Engine Yard shall use reasonable efforts to provide Customer a reasonable notice period with respect to any such suspension, termination or price or feature modification, which period Customer acknowledges may be determined in part by the amount of notice Amazon provides Engine Yard of such events.

15. Third Party Products

Engine Yard may from time to time arrange for Customer’s purchase or license of third party software, services, or other products not included as part of the Services and/or may provide support to Customer in relation to those products. Customer’s use of such third party software, services and other products is governed by the terms of the applicable license or other agreement between Customer and the third party. ENGINE YARD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS OR RELATED SUPPORT SERVICES AND, AS BETWEEN CUSTOMER AND ENGINE YARD, SUCH PRODUCTS AND SERVICES ARE PROVIDED “AS IS.”

16. Notices

(a) Notices to Engine Yard. All notices to Engine Yard under this Agreement (including notices required to be in writing) may be sent to Engine Yard via e-mail through Customer’s Engine Yard online support account. (b) Notices to Customer. Notices to Customer under this Agreement shall be given via e-mail to the individual designated as Customer’s “Contact” on the applicable Service Order Form, or as specified in Section 17(d), or by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.

17. Miscellaneous

(a) Solicitation. Each party agrees that it shall not solicit any employee of the other party with whom it has had direct contact in connection with this Agreement for employment during the term of this Agreement and for 12 months thereafter. Notwithstanding the foregoing, neither party shall be precluded from (i) hiring an employee of the other party who independently approaches the hiring party, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If a party violates this provision, in addition to any other right the non-breaching party may have at law or in equity, the breaching party shall make a one-time payment to the non-breaching party in the amount of 30% of the employee’s base salary for one year. (b) Ownership. Engine Yard owns and shall retain all rights in the Services, Engine Yard’s trademarks and service marks, the Engine Yard System, and all modifications to any of the foregoing and all related intellectual property rights. Customer grants Engine Yard a non-exclusive license during the term of any Service Order Form to use, reproduce, modify, publicly perform, publicly display and distribute any content Customer provides to Engine Yard as necessary to provide the Services. (c) Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE OR FEDERAL COURTS IN SAN FRANCISCO COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO. Notwithstanding the foregoing, either party may bring an action in any jurisdiction to enforce its intellectual property rights, its rights in confidential information or payment obligations. (d) Modifications. Engine Yard may update this Terms of Service from time to time and shall notify Customer of such updates either via email or by posting a notice of such update on the Website. Customer’s continued use of the Services after its receipt of a notice of an updated version of the Terms of Service shall constitute Customer’s consent to such updated Terms of Service. Except for terms specified on a Service Order Form, the terms on either party’s purchase orders or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties. Engine Yard may make modifications to any of the Services in its discretion, provided that such modifications do not materially reduce the features or functionality of the Services. (e) Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. (f) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein. (g) Survival. Sections 2, 7, 8, 9, 10, 14, 15, 16 and 17 will survive any expiration or termination of this Agreement. (h) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry. (i) No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. (j) Severability. In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect. (k) Marketing. Customer grants Engine Yard the right to use Customer’s name, mark and logo on Engine Yard’s website and in Engine Yard’s promotional materials solely to identify Customer as a customer of Engine Yard. (l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Engine Yard may provide the Services to any person, including a competitor of Customer. (m) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Engine Yard may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void. (n) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.