Last Update On: 2021-07-30
This Platform Agreement (this "Agreement"), made between Midware S.A. (the "Provider"), a company organized and existing under the laws of Costa Rica, with its head office located at Av. 24, Curridabat, San José, Costa Rica, and the customer identified on a Sale Order (the "Subscriber"), governs the provision of any Subscriptions, Services, and other materials or information provided by Provider to Subscriber. This agreement, Sale Order(s), exhibits or statements of work(s) separately executed by the parties, and other documents expressly referenced herein or referencing this agreement are collectively referred to as the “Agreement”. Provider and Subscriber are each individually a “Party” and collectively the “Parties”.Unless specified to the contrary in a Sale Order, this Agreement will be effective on the Sale Orderpayment date (the “Effective Date”). By using the Services (as hereafter defined), Subscriber agrees to all terms and conditions set forth herein.
WHEREAS, Provider provides a proprietary a subscription-based platform that includes a multiplatform infrastructure to host one or more specific software applications, continuous integration workflows, and DevOps technologies (the “Service”);
WHEREAS, Subscriber desires to make use of the Service in furtherance of Subscriber’s business;
NOW, THEREFORE, In consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:
SERVICE LICENSE AND RESTRICTIONS
- Service License. Subject to the terms and conditions set forth in this Agreement, upon timely receipt of Subscriber’s payment of the Fee for a subscription to the Services, Provider shall grant to Subscriber a revocable, limited, one platform host only, non-transferable, non-assignable, non-exclusive right to access the Service in and for use during the Subscription Period for Subscriber’s internal business purposes. The foregoing license shall terminate automatically upon cancellation of the Subscription. Provider shall have no obligation to provide any services not specifically set forth herein or in the Sale Order. The Service does not include Subscriber’s connection to the Internet or any equipment or third party licenses necessary for Subscriber to use or access the Service, which shall be Subscriber’s sole responsibility.
- Services. In connection with the implementation and provision of Subscription, Subscriber may engage Provider to provide certain implementation and deployment services (“Implementation Services”), consulting services (“Consulting Services”), Support services (“Support Services”), and other services (“Other Services) as set forth in a Sale Order or in any separate statement of work executed by the parties. Subscriber acknowledges that the provision of Services by Provider is dependent on Subscriber providing access to relevant resources and timely decisions and input in connection with those Services as described in the Sale Order. Subscriber further acknowledges that any delays in response, feedback, or access could result in an extended delivery timeline, additional charges, and sub-optimal results.
- System Operations Service Level. The Service Level Agreement (“SLA”), is incorporated herein and specifies the availability of the Subscription provided under this Agreement.
- Support. During the Term, the Provider will provide remote email support to the Subscriber. Such support consists solely of assistance with usage questions or troubleshooting bugs related to the Subscription supplied by Provider. Support hours are from 8:00 am to 5:00 pm Monday through Friday UTC/GMT-6 (excluding statutory Costa Rica holidays).
- Use Restrictions. Subscriber may use the Services solely for its own internal business operations. Except as otherwise explicitly provided in this Agreement and/or applicable Sale Order, Subscriber will not, and will not permit or authorize third parties to (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide similarly services to third parties; (c) circumvent or disable any security or other technological features or measures of the Services; (d) reverse engineer any element of the Services, or use the Services or any of Provider’s Confidential Information (as defined below) to compete with the Services; (e) modify, adapt or hack the Services to falsely imply any sponsorship or association with Provider, or otherwise, attempt to gain unauthorized access to the Services or its related systems or networks; (f) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, harassing, violent, threatening, racist, or discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Sites; (i) use automated scripts to collect information from or otherwise interact with the Sites or the Services.
- Statical Data. Subscriber acknowledges and agrees that Provider shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-Subscriber identifiable data or information resulting from Subscriber’s use of the Services. Statistical Data may be collected by Provider for any lawful business purpose without a duty of accounting to Subscriber, provided that the Statistical Data is used only in an anonymized, de-identified, or aggregated form, without specifically identifying the source of the Statistical Data. On creation, Provider shall own all Intellectual Property Rights in the Statistical Data. Subscriber further agrees that Provider and those midware.net3+1 (855) 643-9273San José, Costa Rica authorized by Provider shall have the right to use, monitor, and analyze Subscriber Data (in whole or in part) to improve the Service.
- Sale Orders. Once executed by both parties, each Sale Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Sale Orders. If there is a conflict between the terms of this Agreement and the terms of a Sale Order, the terms of this The agreement will control unless the Sale Order states that a specific provision of this The agreement will be superseded by a specific provision of the Sale Order. The provider will provide, and Subscriber will pay for, all Services set out in each Sale Order, subject to the terms of the Sale Order and this Agreement.
Security. Provider shall use commercially
reasonable measures to maintain the security and integrity of the Subscriber Data and to
provide safeguards against security breaches. Subscriber has sole responsibility for the
accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber
Data. Among the security measures implemented by the Provider are the following:
The provider uses Amazon Web Services servers and
complementary services, which includes security measures such as:
- Infrastructure security: Amazon VPC integrated network firewalls enable private networks; DDoS mitigation technologies that are applied at layer 3, 4, or 7; automatic encryption of all traffic on AWS global and regional networks.
- Data Encryption: it provides data at rest encryption, dedicated hardware-based cryptographic key storage, and management, encrypted message queues for the transmission of sensitive data using server-side encryption (SSE).
- Monitoring and Logging: Includes tools and features such as AWS CloudTrail to monitor the deployments and calls to the account (users, source IP addresses, and time); Amazon CloudWatch to set up, manage, and scale monitoring systems and infrastructure; Amazon GuardDuty is a threat detection service that continuously monitors for malicious activity and unauthorized behavior to protect the accounts and workloads.
- Provider maintains security backup copies, made every 2 hours, and stored for 10 days, in accordance with the legally established provisions, where it can only be accessed by authorized personnel of the Provider. However, the Provider is not liable for loss of data or accidental deletion by the Subscriber. consequently, in no event shall Provider be obligated to restore Subscriber's information systems, nor shall The provider is liable for loss of data in the event that such loss occurs for any reason whatsoever. Therefore, the Subscriber shall be solely responsible for maintaining a a backup copy of the information, and the Provider shall not be liable for any loss of data in the event of any loss of any nature whatsoever.
- The provider may use other third-party tools to increase site speed, protection from DoS attacks, data encryption between the user and the server using SSL and HTTPS.
- The provider uses Amazon Web Services servers and complementary services, which includes security measures such as:
SERVICE LEVEL AGREEMENT
- “Availability” means, with respect to a particular Subscription, the periods when the Subscriber, can access all material portions of such Subscription outside of (a) Scheduled Maintenance or Special Maintenance periods or (b) any other periods with Third-Party Issues are present. Without limiting the generality of the foregoing, Provider is not responsible for, and the Subscription is still considered Available, in the event of (a) inability of Subscriber to use the Subscription caused by Subscriber’s service provider’s failure to provide adequate computing facilities or equipment (hardware or software), internet connectivity; (b) inadequate training of subscriber's personnel with respect to use of the Subscription or issues with password authorization that is not the responsibility of Provider; (c) Subscriber’s breach of a term or condition of any Order Form, or the Platform Services Agreement causing the unavailability; or (e) events of Force Majeure as defined in the Platform Services Agreement.
- “Business Hours” means 8:00 am to 5:00 pm Monday through Friday UTC/GMT-6 (excluding statutory Costa Rica holidays).
- “Calendar Month” means, for each Subscription, the monthly time period beginning at 12:00 AM UTC/GMT-6 on the first day of the calendar month following the Activation Date during the Term and ending at 11:59 PM UTC/GMT-6 on the last day of each such calendar month.
- “Scheduled Maintenance” means a period during which the Provider performs maintenance activities of the Subscription, during which availability of all or part of the Subscription is suspended. Scheduled Maintenance includes, without limitation, database index rebuilding, software upgrades, and network upgrades, as applicable.
- “Special Maintenance” means a period during which the Provider may suspend the availability of the Subscription, in whole or in part, in order to address a Severity 1 Error.
- “Severity 1 Error” means a security or performance issue that may affect the use of or access to the service, ultimately leading to business downtime.
“Severity 2 Error” means a cache issue that can cause
minutes of degraded performance.
- Subscription Availability - General. Provider’s goal is to provide Subscription Availability twenty-four hours per day, seven (7) days per week (referred to as “24x7 Availability”) EXCEPT during times of Scheduled Maintenance and Special Maintenance (as set forth in Section “Subscription Availability Goal”). However, the parties recognize that 24x7 Subscription Availability is only a GOAL, and the Provider cannot represent or guarantee that such a goal can be achieved.
- Subscription Availability Level Goal. The provider will use commercially reasonable efforts to achieve the target Subscription Availability Goal of 99% in any Calendar Month.
- Third-Party Issues. The provider is not responsible for limitations or inability to use the Subscription by Subscriber, which is the result of failures or defects in services or equipment which are not provided by Provider (“Third Party Issues”). In the event of Third Party Issues, the Subscription is considered still Available under this SLA.
- The provider will use commercially reasonable efforts to conduct Scheduled Maintenance and Special Maintenance after hours or other times that Provider determines in its reasonable discretion are not critical use periods for the majority of its Subscribers. To this effect, Provider will use commercially reasonable efforts to notify Subscriber by email in advance of any Scheduled Maintenance which will require suspension of all or the majority of the Subscription for periods longer than twenty (20) consecutive minutes. In the event of Special Maintenance, Provider will use all reasonable efforts during Business Hours to (a) provide as much notice as is reasonably practicable given the nature of the issue, (b) address Severity 1 Error within a maximum of one business days (c) address Severity 2 Error within a maximum of one week. If the Subscriber feels an Error is not being properly addressed, the Subscriber may request escalation to the Support manager.
FEES AND PAYMENT TERMS
- Subscriber will pay Provider the Fees specified during the Subscription purchase process. If the Subscriber orders additional products or services, the fees for such additional products or services will be charged at the then-current pricing for such additional products or services and will commence on the applicable purchase or order date, therefore. All amounts payable under this Agreement are denominated in the United States dollars and Subscriber will pay all such amounts in United States dollars. Unless specified otherwise in the applicable Sale Order, fees for any Renewal Term may be increased by Provider and will be invoiced on the same schedule as in effect for the billing period immediately prior to the expiration of the Term.
Unless specified otherwise in the applicable
Sale Order, fees are non-refundable.
There are no refunds or credits for partial months
of Services, plan downgrades, or refunds for
unused time if the Subscriber cancels its subscription
before the end of the term of any Sale Order.
- Payment Terms. Unless specified otherwise in the applicable Sale Order, the Subscriber will pay all amounts due within seven (7) days of the date of the applicable invoice.
- Late Payment. For any late payment, the Subscriber may be required to pay interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. In addition to other rights and remedies available to Provider hereunder together with the cost of collection (including reasonable legal fees), Provider may suspend access to Subscription and stop providing Services if Subscriber does not correct any delinquent amounts within fifteen (15) days of receipt of written notice of nonpayment. Any previously suspended Subscription and/or Services will be promptly restored following the Provider's receipt of all delinquent amounts. A suspension under this Section will not constitute a termination of The agreement, nor will it relieve Subscription of obligations or liabilities under this Agreement.
- Renewal. Unless specified otherwise in the applicable Sale Order, the Services and any Add-On Services purchased by Subscriber during the Subscription Term will automatically renew for additional periods equal to the length of the Subscription Term unless the Subscriber provides written notice to the Provider at least thirty (30) days prior to the expiration of the Subscription Term. Unless specified otherwise in the applicable Sale Order, the initial discounts applied are not renewed.
- Taxes. In addition to the Platform Fees, the Subscriber will bear all taxes, duties, and other legal charges (“Taxes”) resulting from the Subscriber’s purchase or use of the Service. This provision does not apply to the Provider's income taxes, or any taxes for which Subscriber is exempt provided Subscriber has furnished the Provider with a valid tax exemption certificate.
FEES AND PAYMENT TERMS
- Subscriber Ownership and License. Subscriber owns all rights, titles, and interests in and to all Subscriber Data and all Subscriber-provided marketing plans, designs, images, templates, sketches, artwork, logos, trade names, trademarks, and website or email text copy and type (“Subscriber Content”). Subscriber has sole responsibility for the accuracy, quality, and right to use of all Subscriber Data and Subscriber Content.
- Provider Ownership. Provider retains all rights, title, and interest in and to all technology, content, information, manuals, descriptions, and data associated with or made available through the Service, in addition to the design, format, and processing of the Service and any related databases, programs, protocols, displays, and manuals relating to the Service (including any modification, addition, or improvement thereto). For the avoidance of doubt, Provider’s name and logos are owned by the Provider and are protected as Provider’s intellectual property. If Subscriber provides any feedback, comments, suggestions, ideas, requests, or recommendations for modifications or improvements to the Provider Technology (“Feedback”), Subscriber hereby assigns and agrees to assign all right, title, and interest in any such Feedback to Provider to be used for any purpose. All rights not expressly granted to Subscriber hereunder are reserved by Provider.
- Confidential Information. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other party (“Recipient”), either directly or indirectly, in writing, orally or by inspection, which is designated as “Confidential,” “Proprietary” or some similar written designation or otherwise reasonably identifiable as confidential information. Information communicated orally will be considered Confidential Information if the information is identified as being Confidential Information at the time of disclosure. Notwithstanding the foregoing, the following is deemed Provider Confidential Information with or without marking or written confirmation: (a) the Provider Technology, product and service information, pricing information, and other related materials furnished by Provider; (b) the oral and visual information relating to the Provider Technology; (c) the Subscription’ environment and tools, materials, documentation, whitepapers, guides, datasheets, training materials, methodology and (d) the terms and conditions of this Agreement. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information that:(a) is or becomes publicly available through no breach of this Agreement by Recipient; (b) is already in the possession of Recipient at the time of disclosure as shown by Recipient’s files and records immediately before the time of disclosure; (c) is obtained by Recipient from a third party without an obligation of confidentiality, or (d) is independently developed by Recipient without the use of or reference to Discloser’s Confidential Information, as demonstrated by Recipient’s documents. The recipient will only use Discloser’s Confidential Information to exercise its rights or perform its obligations under this Agreement and will protect Discloser’s Confidential Information by using the same degree of care that Recipient uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, but not less than a reasonable degree of care. The recipient will restrict access to Discloser’s Confidential Information to Recipient’s employees and Consultants who require such access in the course of their assigned duties and responsibilities and who have been informed of Recipient’s obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth herein, provided that Subscriber must not permit a competitor of Provider to access Provider’s Confidential Information. If Discloser’s Confidential Information is required to be disclosed under any law or judicial order, Recipient will (to the extent permitted by law) give Discloser prompt notice thereof and use its commercially reasonable efforts to seek or cooperate with Discloser in seeking a protective order at Discloser’s request and expense. Each party acknowledges that any unauthorized midware.net 8+1 (855) 643-9273 San José, Costa Rica disclosure or use of the Confidential Information may cause the other party irreparable harm, and that such party will be entitled to seek injunctive relief in the event the other party does not fulfill its obligations under this Section.
- By Subscriber. Subscriber represents and warrants that: (i) has the full legal power and authority to enter into this Agreement; and (ii) will comply with all applicable laws, rules, regulations, or ethics guidelines related to its performance of this Agreement. Subscriber further warrants that Subscriber’s use of the Service will not infringe or violate the rights of any third party.
- By Provider. Provider represents and warrants that it will maintain appropriate administrative, physical, and technical security measures for the protection of the security, confidentiality, and integrity of Subscriber's data. Providers warrants that: (a) it will not modify Subscriber's data without Subscriber's written consent, (b) it will not access Subscriber's data, except to provide the Services and prevent or resolve technical or service problems, or at Subscriber's request in connection with customer support issues.
- Disclaimer of Warranties. Except for the express warranties set forth herein, all services provided by the provider are on an “as is” basis without any warranty whatsoever. Except for the express warranties set forth herein, provider expressly disclaims, to the maximum extent permissible under applicable law, all warranties, express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, non-infringement, or arising from a course of performance, dealing, usage or trade. The provider does not warrant that the subscription or the data stored through the use of the subscription are not susceptible to intrusion, attack, or computer virus infection. The provider also makes no warranty regarding accessibility or non-interruption of use of the service and makes no warranty that the service will be error-free.
- Subscriber will indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, and contractors from and against any claim brought by a third party arising from or related to Subscriber’s violation or alleged violation of the terms of this Agreement, including, without limitation, Subscriber’s representations and warranties made hereunder. If Provider is obligated to respond to a third-party subpoena, government or regulatory investigation, or other compulsory legal order or process related to Subscriber’s use of the Service, Subscriber will reimburse Provider for reasonable legal fees, as well as Provider’s employees’ and contractors’ time and materials spent responding to such demand or request.
- Cap on liability. Under no circumstances will the aggregate liability of Provider and its respective affiliates of all kinds arising out of or related to this agreement, (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort (including negligence), strict liability, or any other legal or equitable theory, exceed the total amount paid and amounts accrued but not yet paid by subscriber to Provider under the applicable service order during the twelve months preceding the event giving rise to the claim (determined as of the date of any final judgment in an action).
- Disclaimer of damages. In no event will Provider, under any circumstances, be liable to subscriber, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for consequential, incidental, indirect, special, or exemplary, enhanced, or punitive damages arising out of or related to this agreement, including but not limited to lost profits, revenue,business, or data; business interruption; loss of goodwill or reputation; malfunctioning, impossibility of access, or poor use conditions of the services due to inappropriate equipment, disturbances related to internet service providers, the saturation ofthe internet network, third-party software instability, platform blocking by the third-party software application provider, or any other error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications, problems related to the services or its use, loss of personal content on the sites, regardless of provider is apprised of the likelihood of such damages occurring or any losses or damages were otherwise foreseeable.
TERM AND TERMINATION
- Term. This Agreement shall commence upon the Effective Date and shall remain in full force and effect until the number of months or years specified in the Sale Order thereafter (“Initial Term”). Subscriptions shall renew automatically upon the expiration of the Initial Subscription Period or then-current Renewal Subscription Period unless either party gives the other party written notice of termination at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term.
- Termination. Provider reserves the right to suspend or disable Subscriber’s access to the Service at any time, with or without notice, including, without limitation if Provider believes such suspension is necessary to prevent unauthorized use of the Service or to prevent an ongoing violation of any applicable laws or regulations. In addition, if Subscriber fails to timely pay any Fees in accordance with the terms of this Agreement, Provider may, without limitation to any of its other rights or remedies, suspend access to the Service until Provider receives all amounts due.
- Effect of Termination. Effective immediately upon termination or cancellation of this Agreement or any Subscription, Subscriber shall be prohibited from accessing or using the Service.
- Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber will pay to Provider any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and allliabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will discontinue all use of the Services. Upon termination of this Agreement, Provider shall have the right to remove Subscriber’s information and settingsafter thirty (30) days, and Subscriber will not be able to recover this data or content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third-party claims, confidentiality, and limitations on liability) will remain in effect.
- Applicable Law. The parties agree that this Agreement has been made for valuable consideration and is legally binding. This Agreement shall be governed by the laws and jurisdiction of Costa Rica, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. This Agreement will not be assignable by either party without the other Party's prior written consent. Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and assigns.
- Assignment. Subscriber may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Provider. Any attempt by Subscriber to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
- No Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Force majeure. Neither Party shall be held responsible for any delay or failure in progress arising out of causes beyond its control or without its fault or negligence. Such causes may include but are not limited to acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts, and labor disputes.
- Notices. Any notice under this Agreement will be effective if it is in writing and will be treated as duly given immediately upon the electronic mail transmission date. Notices to Provider must be sent to the following email address: "[email protected]". Notices to the Subscriber will be sent to the email address set in the last Sale Order. The provider may send notices and other information to the Subscriber by email or other electronic forms.
- Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable, and the invalid or unenforceable provision will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.