Pomerium Zero User Agreement Terms and Conditions
Pomerium, Inc.
These Pomerium Zero User Agreement Terms and Conditions (these “Terms and Conditions”), together with all Order Forms (as defined below), documents and terms incorporated by reference herein collectively constitute this "Agreement", which is entered into by and between Pomerium, Inc., a Delaware company with its principal place of business at 9450 SW Gemini Dr, Beaverton, Oregon 97008-7105, USA ("Pomerium"), and the organization set forth on the applicable Order Form or that you otherwise identified on Pomerium's website when you registered to use the Cloud Services ("Customer"). Pomerium and Customer are each referred to herein as a "Party", or collectively, the "Parties".
This Agreement is effective on the date Customer first enters into an Order Form with Pomerium or otherwise registers to use the Cloud Services (the "Effective Date").
BY REGISTERING TO USE THE CLOUD SERVICES OR OTHERWISE PURCHASING A SUBSCRIPTION TO A CLOUD SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND YOUR ORGANIZATION TO THIS AGREEMENT, AND THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR YOUR ORGANIZATION DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT ACCEPT IT.
1.0 DEFINITIONS
1.1 "Affiliate" means with respect to a Party, any person or entity that controls, is controlled by, or is under common control with such Party, where "control" means ownership of fifty percent (50%) or more of the outstanding voting securities.
1.2 "Authorized User" means a named individual that: (a) is an employee, representative, consultant, contractor or agent of Customer or a Customer Affiliate; (b) is authorized to use the Cloud Services pursuant to this Agreement; and (c) has been supplied a user identification and password by Customer.
1.3 "Cloud Services" means the applicable version of Pomerium's cloud-hosted software applications.
1.4 "Customer Data" means any electronic data or materials provided or submitted by Customer or Authorized Users to or through the Cloud Services.
1.5 "Documentation" means the online help materials, including technical specifications, describing the features and functionality of the Cloud Services, which are located on Pomerium's publicly-available website at https://www.pomerium.com/ or available through the interface for the applicable Cloud Service, as updated by Pomerium from time to time.
1.6 "Intellectual Property Rights" means all current and future worldwide intellectual property rights, including without limitation all patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection, and all applications and registrations for any of the foregoing.
1.7 “Order Form” means an ordering document or online order entered into between Customer and Pomerium, or online ordering or registration flow completed by Customer, in each case that sets forth the applicable Cloud Service(s) to which Customer is subscribing and pricing therefor, and that references these Terms and Conditions.
1.8 "Subscription Term(s)" means, unless a different period is specified on the applicable Order Form, a subscription period(s) of one (1) year during which Authorized Users may use the Cloud Services, subject to the terms of this Agreement.
1.9 "Support Services" means the maintenance and support services provided by Pomerium to Customer during the Subscription Term, as more fully described in Section 2.3 below.
2.0 CLOUD SERVICES AND SUPPORT SERVICES; PAYMENT
2.1 Access Rights to the Cloud Services. Pomerium will host the Cloud Services and will make the Cloud Services available to Customer during the Subscription Term(s), subject to the terms and conditions of this Agreement, including Customer's payment of all applicable fees. Customer's access and usage of the Cloud Services may not exceed the number of routes, policies, certificates, clusters, nodes, organizations, users and/or other license entitlements designated by Pomerium (as applicable) purchased by Customer as set forth on the applicable Order Form, pursuant to this Agreement. Furthermore, Customer will not engage in excessive creation/deletion of accounts or any non-standard usage of compute resources, and may not interfere with other users' utilization of the Cloud Services. Pomerium may update the content, features, functionality, and user interface of the Cloud Services from time to time in its sole discretion, and may discontinue or suspend all or any portion of the Cloud Services at any time in its sole discretion, including during a Subscription Term; provided, that Pomerium will give Customer at least fifteen (15) days' advance notice before Pomerium discontinues the Cloud Services or Pomerium materially decreases the functionality of the Cloud Services during the Subscription Term. Pomerium grants Customer a limited, non-exclusive, non-sublicenseable, nontransferable (except as specifically permitted in this Agreement) right to access and use the Cloud Services and their Documentation during the Subscription Term, solely for Customer's internal business purposes. Customer may permit its Affiliates to use and access the Cloud Services and Documentation in accordance with this Agreement, but Customer will be responsible for the compliance of all Affiliates with this Agreement. For the avoidance of doubt, the Cloud Services are available only on a hosted basis, and Customer will not independently possess, run, or install the Cloud Services.
2.2 Restrictions. Customer will not and will not permit any third party to: (a) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the Cloud Services in a manner that allows anyone to access or use the Cloud Services without an Authorized User subscription, or to commercially exploit the Cloud Services; (b) copy, modify or create derivative works based on the Cloud Services; (c) reverse engineer or decompile the Cloud Services (except to the extent permitted by applicable law and only if Pomerium fails to provide permitted interface information within a reasonable period of time after Customer's written request); (d) copy any features, functions or graphics of the Cloud Services; (e) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Cloud Services for any purpose, whether by termination of employment or other change in job status or function); or (f) access or use the Cloud Services: (i) to send or store infringing, obscene, threatening, or otherwise unlawful, unethical and/or potentially harmful material, including without limitation incitements to violence, defamatory material, public disinformation campaigns, and/or material violative of third-party privacy rights; (ii) in violation of applicable laws or outside the scope expressly permitted in this Agreement (including the applicable Order Form); (iii) to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (iv) in a manner that interferes with or disrupts the integrity or performance of the Cloud Services (or the data contained therein); (v) to gain unauthorized access to the Cloud Services (including unauthorized features and functionality) or its related systems or networks; (vi) to circumvent defined limits on an account in an unauthorized manner; (vii) to abuse referrals, promotions or credits to get more features than paid for; or (viii) to access, search, or create accounts for the Cloud Services by any means other than Pomerium's publicly supported interfaces (for example, "scraping" or creating accounts in bulk).
2.3 Support Services. During the Subscription Term, Pomerium will provide limited email support for the Cloud Services, which Customer may request by emailing Pomerium at support@pomerium.com. Customer acknowledges that Support Services do not include support for any open source versions of Pomerium's software applications, and Customer agrees to request support only for the Cloud Services for which Customer purchases a subscription under this Agreement.
2.4 Usage Limits. Use of the Cloud Services is subject to any usage limits, which may include limitations on features and functionality, that are set forth on the applicable Order Form. If Customer exceeds any such limits, Customer will promptly notify Pomerium and work with Pomerium to promptly change its usage to comply with the limits. Pomerium may periodically verify that Customer's use of the Cloud Services is within the applicable usage limits, and Customer will promptly and accurately certify and/or provide evidence of Customer's compliance with the applicable usage limits as may be requested by Pomerium from time to time.
2.5 Payment. Customer is responsible for paying the applicable fees set forth on the applicable Order Form, in the manner directed on such Order Form (e.g., by credit card). However, such fees may be offset by credits (if any) offered by Pomerium as set forth on such Order Form. Credits are granted in Pomerium's sole discretion and may be discontinued by Pomerium at any time without notice. Pomerium may suspend Customer's access to the Cloud Services: (a) if Customer has exhausted its credits and has not paid the requisite fees to continue use of the Cloud Services within seven (7) days , or (b) if Customer's account is otherwise delinquent for more than seven (7) days. Furthermore, upon suspension or termination of the Cloud Services in accordance with this Agreement, Pomerium may delete or decommission any resources deployed by or for Customer (including, as applicable, any clusters, clients, nodes, or workspaces).
2.6 No-Charge Services. In the event Customer is granted access to any free accounts, trial use, pre-release, "alpha", "beta", or similarly designated features, functionality, or services ("No-Charge Services"), Customer agrees that such No-Charge Services are provided solely "AS IS", for testing and evaluation on a non-production basis only. The No-Charge Services may contain bugs, errors, and other problems, and Customer assumes all risks and costs associated with such use. Support for No-Charge Services is provided solely at Pomerium's discretion.
3.0 CUSTOMER RESPONSIBILITIES FOR CUSTOMER DATA AND AUTHORIZED USERS
Customer agrees to promptly notify Pomerium of any unauthorized access to Authorized User accounts of which Customer becomes aware. Customer has exclusive control and responsibility for determining what data Customer submits to the Cloud Services, for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to Pomerium, and for the accuracy, quality and legality of Customer Data. Customer is further responsible for the acts and omissions of Authorized Users in connection with this Agreement, for all use of the Cloud Services by Authorized Users, and for any breach of this Agreement by Authorized Users. Customer will use reasonable measures to prevent and will promptly notify Pomerium of any known or suspected unauthorized use of Authorized User access credentials.
4.0 INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
4.1 Ownership. The Cloud Services, Documentation and System Data (as defined below), all copies and portions thereof, and all Intellectual Property Rights therein, including, but not limited to derivative works therefrom, are and will remain the sole and exclusive property of Pomerium notwithstanding any other provision in this Agreement. Customer is not authorized to use (and will not permit any third party to use) the Cloud Services, Documentation or any portion thereof except as expressly authorized by this Agreement. “System Data” means data collected by Pomerium regarding the Cloud Services that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Cloud Services.
4.2 License to Customer Data. Customer grants Pomerium a worldwide, non-exclusive license to host, copy, process, transmit and display Customer Data as reasonably necessary for Pomerium to provide the Cloud Services in accordance with this Agreement. Subject to this limited license, as between Customer and Pomerium, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
4.3 Product Improvements. Pomerium may anonymize Customer Data ("Anonymized Data"), and Pomerium and its Affiliates may use such Anonymized Data for purposes of operating their business and/or improving their products and services; provided that their use of Anonymized Data does not reveal Customer, Customer Confidential Information, or personally identifiable information of Authorized Users.
5.0 TERM; TERMINATION
5.1 Effective Date and Term. This Agreement commences on the Effective Date. Unless earlier terminated pursuant to the terms of this Section 5, the Agreement will continue until the expiration or termination of all Order Forms. Unless one Party notifies the other at least sixty (60) days before the end of the then-current Subscription Term (unless the Subscription Term is monthly, in which case such notice must be provided at least fifteen (15) days before the end of the then-current Subscription Term), each Order Form will automatically renew for an additional Subscription Term of the same length.
5.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party: (a) if the other Party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within fifteen (15) days after written notice of such default to the other Party; or (b) if the other Party (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise. For the avoidance of doubt, termination of this Agreement will result in the termination of all Order Forms.
5.3 Suspension. Pomerium may discontinue or suspend Customer's access to the Cloud Services immediately if: (a) Customer has (or Pomerium reasonably suspects that Customer has) breached Section 2.2 or infringed Pomerium's Intellectual Property Rights; or (b) Customer has failed to pay the requisite fees as described in Section 2.5 above.
5.4 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) Pomerium's obligation to provide Support Services and the Cloud Services will terminate, (b) all of Customer's and its Authorized Users' rights to use the Cloud Services will terminate, and (c) the provisions of Sections 5.4, 6.4, 7, 8, 9, and 10 of this Agreement will survive such expiration or termination.
5.5 Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of this Agreement, Pomerium may immediately deactivate Customer's account(s) for the Cloud Services, and Pomerium has the right to delete those accounts, including all Customer Data, from Pomerium's site unless legally prohibited. Customer acknowledges and agrees that is responsible to retrieve Customer Data from the Cloud Services prior to expiration or termination of this Agreement.
6.0 REPRESENTATIONS AND WARRANTIES
6.1 By Each Party. Each Party represents and warrants that it has the power and authority to enter into this Agreement and that its respective provision and use of the Cloud Services is in compliance with laws applicable to such Party.
6.2 Conformity with Documentation. Pomerium warrants that, during the Subscription Term, the Cloud Services will perform materially in accordance with the applicable Documentation. In the event of a material breach of the foregoing warranty, Customer's exclusive remedy and Pomerium's entire liability will be for Customer to request Pomerium's assistance through the Support Services, which Pomerium will provide in accordance with its obligations under Section 2.3 ("Support Services").
6.3 Malicious Code. Pomerium warrants that, to the best of its knowledge, the Cloud Services are free from, and Pomerium will not knowingly introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.
6.4 WARRANTY DISCLAIMERS. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 6, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE CLOUD SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND POMERIUM MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH REGARDING OR RELATING TO THE CLOUD SERVICES, DOCUMENTATION OR SUPPORT SERVICES. POMERIUM SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, POMERIUM DOES NOT WARRANT THE CLOUD SERVICES WILL BE ERROR-FREE OR THAT THE USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED.
7.0 INDEMNIFICATION
7.1 By Pomerium. Subject to the remainder of this Section 7 and the liability limitations set forth in Section 7, Pomerium will: (a) defend Customer against any third party claim that the Cloud Services infringe any trademark or copyright of such third party, enforceable in the jurisdiction of Customer's use of the Cloud Services, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Customer's actions) ("Infringement Claim"); and (b) indemnify Customer against and pay any settlement of such Infringement Claim consented to by Pomerium or any damages finally awarded against Customer to such third party by a court of competent jurisdiction. Pomerium will have no obligation and assumes no liability under this Section 7 or otherwise with respect to any claim to the extent based on: (a) any modification of the Cloud Services that is not performed by or on behalf of Pomerium, or was performed in compliance with Customer's specifications; (b) the combination, operation or use of the Cloud Services with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by Pomerium where there would be no Infringement Claim but for such combination; (c) use of the Cloud Services other than in accordance with the terms and conditions of this Agreement and the Documentation; or (d) Customer's or any Authorized User's use of the Cloud Services other than as permitted under this Agreement. THIS SECTION 7 STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND POMERIUM'S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
7.2 Remedies. Should the Cloud Services become, or in Pomerium's opinion be likely to become, the subject of an Infringement Claim, Pomerium may, at its option (i) procure for Customer the right to use the Cloud Services in accordance with this Agreement; (ii) replace or modify, the Cloud Services to make them non-infringing; or (iii) terminate Customer's right to use the Cloud Services and discontinue the related Support Services.
7.3 By Customer. Customer will defend, indemnify and hold harmless Pomerium and its Affiliates, and its and their directors, officers, employees, agents and licensors, from and against any damages and costs (including reasonable attorneys' fees and costs incurred by the indemnified parties) finally awarded against them in connection with any claim arising from (i) Customer's use of the Cloud Services or (ii) Customer Data; provided that Customer will have no obligation under this Section 7.3 to the extent the applicable claim arises from Pomerium's breach of this Agreement.
7.4 Indemnity Process. Each Party's indemnification obligations are conditioned on the indemnified Party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim; and (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party's request and expense. The indemnified Party may participate in the defense of the claim, at the indemnified Party's sole expense (not subject to reimbursement). Neither Party may admit liability for or consent to any judgment or concede or settle or compromise any claim unless such admission or concession or settlement or compromise includes a full and unconditional release of the other Party from all liabilities in respect of such claim.
8.0 LIMITATION OF LIABILITY
8.1 Damages Exclusion; Liability Cap. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR LICENSORS BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM ITS OBLIGATIONS UNDER SECTION 7 ("INDEMNIFICATION") (FOR WHICH THE LIABILITY LIMITATION IS ONE HUNDRED THOUSAND DOLLARS ($100,000) IN THE AGGREGATE), IN NO EVENT WILL POMERIUM'S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS ($10,000). NOTHING IN THIS SECTION 8.1 WILL BE DEEMED TO LIMIT EITHER PARTY'S LIABILITY FOR WILLFUL MISCONDUCT OR FRAUD OR CUSTOMER’S BREACH OF SECTION 2.2.
8.2 Limitations Fair and Reasonable. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
9.0 CONFIDENTIAL INFORMATION
9.1 Confidentiality. "Confidential Information" means the applicable Order Form and any other information disclosed by one party ("Discloser") to the other ("Recipient") in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. For clarity, the Cloud Services, Pomerium pricing information and Pomerium technical information are the Confidential Information of Pomerium, and the Customer Data are the Confidential Information of Customer. Recipient may use Discloser's Confidential Information solely to perform Recipient's obligations or exercise its rights hereunder. Recipient will not disclose Discloser's Confidential Information to any third party without Discloser's prior written consent, except that Recipient may disclose Discloser's Confidential Information solely to Recipient's employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser's Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (a) was in the public domain at the time it was communicated to the Recipient by the Discloser; (b) entered the public domain subsequent to the time it was communicated to the Recipient by the Discloser through no fault of the Recipient; (c) was in the Recipient's possession free of any obligation of confidence at the time it was communicated to the Recipient by the Discloser; (d) was rightfully communicated to the Recipient free of any obligation of confidence subsequent to the time it was communicated to the Recipient by the Discloser; (e) it was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser; or (f) is expressly permitted to be disclosed pursuant to the terms of this Agreement.
9.2 Compelled Disclosure. The Recipient will not be in violation of Section 9.1 regarding a disclosure that was in response to a valid order by a court or other governmental body, provided that the Recipient provides the Discloser with prior written notice of such disclosure in order to permit the Discloser to seek confidential treatment of such information.
9.3 Feedback. To the extent Customer provides any suggestions, recommendations or other feedback relating to the Cloud Services or Support Services (collectively, "Feedback"), Customer grants to Pomerium and its Affiliates a royalty free, fully paid, sub-licensable, transferable (notwithstanding Section 10.1 ("Assignment")), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit Feedback (including by incorporation of such Feedback into their products and services without restrictions).
9.4 Sensitive Data. Customer agrees that it will not submit the following types of information to the Cloud Services except with Pomerium's prior written approval: government-issued identification numbers, consumer financial account information, credit and payment card information, personal health information, or information deemed "sensitive" under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs) or personal data (as described in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) of data subjects that reside in the European Economic Area (EEA). If Customer wishes to submit any such European personal data to the Cloud Services, Customer will notify Pomerium and the parties may enter into a separate data processing agreement (including the European Commission's Standard Contract Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection) with Pomerium prior to submission of such personal data to the Cloud Services. Customer represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of personal data in the Cloud Services.
10.0 GENERAL
10.1 Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning Party's assets related to this Agreement, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed by the assigning Party to the other Party are paid in full.
10.2 Anti-Corruption. Each Party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act ("FCPA") and the U.K. Bribery Act.
10.3 Notices. Notices to a Party will be sent by first-class mail, overnight courier or prepaid post to the address for such Party and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. Notices to the Customer may be sent to the address listed on the applicable Order Form and, notwithstanding the foregoing, may also be sent to the email address provided by Customer when Customer creates Cloud Services account. Customer will address notices to Pomerium’s Legal Department, with a copy to legal@pomerium.com. Either Party may from time to time change its address for notices under this Section by giving the other Party at least thirty (30) days prior written notice of the change in accordance with this Section 10.3.
10.4 Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party's right to assert or rely upon such provision, right or remedy in that or any other instance.
10.5 Governing Law. This Agreement will be governed by the laws of the State of California (without regard to the conflicts of law provisions of any jurisdiction), and claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of San Francisco, California, USA.
Each Party irrevocably submits to the personal jurisdiction and venue of and agrees to service of process issued or authorized by, any court in San Francisco, California, USA, in any action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
10.6 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it will be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
10.7 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the Parties hereto. Neither Party has any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever. Each Party may identify the other as a customer or supplier, as applicable.
10.8 U.S. Government Restricted Rights. If the Cloud Services are being used by the U.S. Government, the Cloud Services are "commercial computer software" and "commercial computer documentation" developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, will be subject solely to the terms of this Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense ("DOD") will be subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
10.9 Export Laws. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Cloud Services. Without limiting the generality of the foregoing, Customer represents that it is not named on any U.S. government denied-party list and will not make the Cloud Services available to any user or entity that is located in a country that is subject to a U.S. government embargo, or is listed on any U.S. government list of prohibited or restricted parties. Pomerium may reject credit card payments and/or suspend access to the Cloud Services, without liability or penalty, where Pomerium has reason to believe Customer is in violation of this Section.
10.10 Amendment. Pomerium reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
10.10 Entire Agreement; Execution. This Agreement comprises the entire agreement between Customer and Pomerium, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the Parties regarding its subject matter. In the event of a conflict between the terms of this Agreement and any other document referenced in this Agreement, this Agreement will control. Any preprinted terms on any Customer ordering documents or terms referenced or linked therein will have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by Pomerium. This Agreement may be executed in counterparts, which taken together form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement will be legally binding with the same force and effect as manually executed signatures.
Last updated October 9, 2024
