InfluxDB Cloud Service Subscription Agreement (Pre-Pay)
Template last revised: May 2023
This Cloud Service Subscription Agreement (this “Agreement”) contains the terms under which InfluxData agrees to grant Customer access to and use of InfluxData’s InfluxDB time series database cloud subscription services. By indicating Customer’s acceptance of this Agreement, executing a Sales Order that references this Agreement, or using InfluxData’s services or software, Customer agrees to be bound by this Agreement. If you are entering into this Agreement on behalf of an entity, such as the company you work for, then you represent to InfluxData that you have the legal authority to bind the Customer to this Agreement. If you do not have that authority or if Customer does not agree with the terms of this Agreement, then you may not indicate acceptance of this Agreement, and neither you nor Customer may use or access any of InfluxData’s service offerings or other services. The “Effective Date” of this Agreement is the date on which you first indicate your assent to the terms of this Agreement.
InfluxData provides time series database solutions, by providing its customers with access to InfluxData’s InfluxDB time series database platform. Customer wishes to acquire a subscription-based license to access and use the time series database platform, all as specified in one or more “Sales Orders” under and subject to this Agreement. Therefore, for good and valuable consideration, the receipt and sufficiency of which they each acknowledge, InfluxData and Customer agree to be bound by this Agreement.
Terms and Conditions
1. Definitions and Construction
1.1. Definitions. For the purposes of this Agreement, the following initially capitalized words have the following meanings:
“Acceptable Use Policy” means the InfluxData policy described in Section 12.
“Affiliate” means any person, partnership, joint venture, corporation or other form of venture or enterprise, domestic or foreign, including subsidiaries, which directly or indirectly Control, are Controlled by, or are under common Control with a party. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made, through the ownership of more than fifty percent (50%) of its voting or equity securities, contract, voting trust or otherwise.
“Channel Partner” means an entity that InfluxData has authorized as a “reseller” of InfluxData’s Subscription Services.
“Channel Partner Sale Agreement” means the order, agreement or other document between Customer and a Channel Partner for Customer’s purchase of Subscription Services. Terms that apply to Customer’s use of the Subscription Services when purchased from a Channel Partner are specified in Section 13.
“Confidential Information” has the meaning ascribed to it in Section 6.1.
“Customer” means the entity identified as such in the applicable Sales Order.
“Customer Data” means any data that Customer or its Users input into the InfluxDB Platform for Processing by InfluxData (or its sub-processors) to perform the Subscription Services, including any Personal Data forming part of such data.
“Customer Service Provider” means a third party, to the extent the third party is providing Subscription Services to Customer.
“Documentation” means the software user and administrator manuals published by InfluxData at https://docs.influxdata.com, regarding use of the applicable InfluxDB Platform, including additional, updated or revised documentation.
“Free Trial” means use of the Subscription Services for trial purposes pursuant to a Sales Order that specifies that Customer’s use is for a Free Trial or for a POC (proof of concept) program for which InfluxData is not charging fees.
“InfluxDB Platform” means the computer software applications, tools, application programming interfaces (APIs), and connectors provided by InfluxData as its time series database cloud service offering, together with the programs, networks and equipment that InfluxData uses to make such platform available to its customers. InfluxData makes the InfluxDB Platform available under a multi-tenant (serverless) model, and under a single- tenant (dedicated) model. The model for which Customer has subscribed is specified in the Sales Order.
“Infrastructure Provider” means an infrastructure-as-a-service provider that InfluxData uses to make the InfluxDB Platform available, including, for example, Amazon Web Subscription Services.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Personal Data” means any information deemed “personal data” or “personal information” (or analogous variations of such terms) under applicable privacy or data protection laws and regulations, including any information relating to an identified or identifiable natural person.
“Pre-Pay Plan” means a fee model under which Customer pre-pays a minimum usage or minimum configuration fee for the applicable Subscription Term.
“Process” or “Processing” means any operation or set of operations which is performed on Customer Data or on sets of Customer Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Renewal Term” has the meaning ascribed to it in Section 8.
“Sales Order” means any mutually agreed, written sales order, executed on behalf of InfluxData and Customer (or, in the case of a sale of Subscription Services under a Channel Partner Agreement, executed on behalf of InfluxData and the Channel Partner), including its exhibits and addenda, describing the Subscription Services, fees, and any special terms for using the Subscription Services that Customer has ordered. Each Sales Order becomes effective when executed by both InfluxData and Customer, and is made part of this Agreement as described in Section 1.2.
“Subscription Services” means the InfluxDB Platform service offerings to which Customer subscribes, together with the applicable Support Program, each as specified in the applicable Sales Order, and the Documentation.
“Subscription Start Date” means, with respect to each Sales Order, the “Subscription Term Start Date” specified in the Sales Order. For Renewal Terms, the Subscription Start Date will be the day immediately following the date on which the preceding term expired, unless otherwise specified in the Sales Order.
“Subscription Term” has the meaning ascribed to it in Section 8.
“Supplemental Materials” means any beta release or other early access software or services, or any sample code identified by InfluxData that Customer chooses to use.
“Support Program” means the InfluxData technical support and maintenance services program for the InfluxDB Platform, if any, specified in the applicable Sales Order. Terms governing the Support Program are specified in the ‘Additional Terms of Service – Support Program’ referenced in Section 12.
“User” means any individual who is an employee or independent contractor of Customer, its Affiliates, or its or their Customer Service Providers, and who is authorized by Customer to access and use the InfluxDB Platform.
The following words will be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or items will not be exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation; and (v) “may” is, unless the context requires otherwise, an expression of permission, but not an obligation.
1.2. Construction. This Agreement applies to the provision of all Subscription Services. The parties will enter into one or more Sales Orders that contain additional terms and conditions applicable to the provision of certain Subscription Services. Upon execution by the parties, each Sales Order will be incorporated into this Agreement.
2. Provision and Use of Subscription Services
2.1. Provision of Subscription Services. During the Subscription Term, Customer may access and use the InfluxDB Platform in accordance with this Agreement. InfluxData will use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for planned downtime (for which InfluxData will give at least 48 hours’ notice). InfluxData may in addition perform unscheduled emergency maintenance for the security or performance of the Subscription Services; InfluxData will use commercially reasonable efforts to provide at least 30 minutes prior notification of emergency maintenance that InfluxData believes will cause downtime. InfluxData’s detailed service levels applicable to Customer’s subscription are specified in the Sales Order.
2.2. Customer’s Account. Customer will designate one or more of its employees to be the point of contact with InfluxData for the management and support of the Subscription Services, and who will be responsible for establishing and managing Customer’s use of the Subscription Services (“Account”). Customer is solely responsible for maintaining the status of its User base and for safeguarding InfluxDB Platform authentication credentials under its or their control. Customer is responsible for all activities that occur under the Account (except to the extent resulting from any breach or non-conformance by InfluxData of its obligations under this Agreement).
2.3. Customer’s General Responsibilities. Customer and its Users are solely responsible for obtaining and maintaining their Internet access to the Subscription Services. Customer is solely responsible for the accuracy, quality and integrity of the Customer Data when provided or input by Customer or its Users into the InfluxDB Platform. Customer must comply, and will ensure that its Users comply, with the Acceptable Use Policy referenced in Section 12 below. Customer is responsible for acts and omissions of its Users relating to this Agreement as though they were Customer’s own.
3. License Grants and Proprietary Rights
3.1. License by InfluxData. Subject to the terms and conditions of this Agreement, InfluxData hereby grants to Customer a non-exclusive, non-transferable (except in accordance with Section 14.14 – Assignment), royalty-free, worldwide license, without right to sub-license, for the Subscription Term, to (a) access and use, and to permit its Users to access and use, the InfluxDB Platform, in accordance with the Documentation, subject to the license metrics and other scope limitations specified in the applicable Sales Order, and (b) reproduce, modify, and distribute and display the Documentation, in each case solely for Customer’s operations in its ordinary course of business. InfluxData reserves all other rights not expressly granted in this Agreement.
3.2. License by Customer. Customer hereby grants to InfluxData a non-exclusive, non-transferable (except in accordance with Section 14.14 – Assignment), royalty-free license, without right to sub-license (except to its sub-processors, as required for the provision of the Subscription Services), to use the Customer Data, solely as necessary to perform the Subscription Services and as otherwise may be agreed in writing by Customer. Customer reserves all other rights not expressly granted in this Agreement.
3.3. Ownership of Intellectual Property Rights.
3.3.1. Ownership and Use of Customer Data. Customer retains all of its rights, title and interest and Intellectual Property Rights in and to the Customer Data and Customer Confidential Information. No ownership interest in the Customer Data or Customer Confidential Information is transferred or conveyed to InfluxData by virtue of this Agreement. InfluxData will use Customer Data and Customer Confidential Information only for purposes of providing the Subscription Services, unless otherwise authorized in writing by Customer.
3.3.2. InfluxData’s Intellectual Property and Ownership Rights. As between Customer and InfluxData, InfluxData and InfluxData’s licensors retain and own all right, title and interest and all Intellectual Property Rights in and to the Subscription Services, InfluxData’s Confidential Information and all enhancements or improvements to, or derivative works of any of the foregoing created or developed by or on behalf of InfluxData (collectively, “InfluxData Intellectual Property”). Nothing in this Agreement transfers or conveys to Customer any ownership interest in or to the InfluxData Intellectual Property.
3.4. Restrictions. Customer will not: (i) except to the extent, if any, permitted by applicable law or required by InfluxData’s licensors, reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the InfluxDB Platform; (ii) reproduce, modify, or prepare derivative works of the InfluxDB Platform; or (iii) share, rent or lease the Subscription Services, or use the Subscription Services to operate any timesharing, service bureau or similar business or to provide the InfluxDB Platform as a standalone offering.
4.1. Subscription Plans. Customer’s Pre-Pay Plan for the Subscription Services is specified in the applicable Sales Order. Customer may not reduce Customer’s minimum spending commitment specified in the Sales Order during the Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Subscription Services Customer actually uses is less than the minimum spending commitment specified in the Sales Order, and Customer may not carry over any of the unused volume to Customer’s next Subscription Term. If the fees incurred by Customer as a result of its usage of the Subscription Services exceed the minimum spending commitment specified in the Sales Order then, during the remainder of the term of such Sales Order, InfluxData may invoice Customer for the excess usage on a monthly basis, at the excess usage rates specified in the Sales Order.
4.2. Payment of Subscription Services Fees. Customer will pay InfluxData the fees for the Subscription Services as specified in the applicable Sales Order (using one of the payment methods InfluxData supports (including by credit card, check or an electronic payment method). InfluxData invoices in advance for the minimum spending commitment element of the Pre-Pay Plan, and monthly in arrears for use in excess of Customer’s minimum spending commitment. Unless otherwise specified in the applicable Sales Order, Customer will make all payments within thirty (30) days of receipt of InfluxData’s invoice. Unless otherwise specified in the applicable Sales Order, all Fees are stated and payable in US dollars.
4.3. Sales Taxes, Etc. Customer will be responsible for any applicable sales, value-added, use and similar taxes, together with all customs and import duties, and similar levies and impositions (“Taxes”) payable with respect to its acquisition of Subscription Services, or otherwise arising out of or in connection with this Agreement, other than taxes based upon InfluxData’s personal property ownership or net income. Unless expressly specified otherwise in any Sales Order, all fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status with its purchase orders or upon request by InfluxData.
4.4. Withholding. If Customer is located outside the U.S.A., and is required to withhold taxes imposed upon InfluxData for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Subscription Services are delivered or obtained, then such payments will be made by Customer on behalf of InfluxData by deducting them from the payment then due InfluxData and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted upwards appropriately so that InfluxData actually receives the full amount of the fees set forth in the applicable Sales Order. Customer will provide InfluxData with official documentation or tax receipts on such withholdings supporting such taxes and such payments as may be required by InfluxData for its tax records as soon as reasonably possible following payment to the applicable tax authority, and in any event no later than when required by applicable law.
4.5. Value Added Taxes. All amounts payable under this Agreement are exclusive of any value added taxes or similar taxes ("VAT") levied or assessed by any taxing authority. If InfluxData is required to account to the relevant tax authority for VAT, Customer must pay to InfluxData (in addition to and at the same time as paying any other consideration for the Subscription Services) an amount equal to the amount of VAT, subject to InfluxData providing a valid VAT invoice to Customer. Where VAT is required to be withheld by Customer on payments made to InfluxData, the amount payable to InfluxData shall be grossed up so that InfluxData receives the same amount as if such VAT withholding had not applied. Where Customer is required to reimburse any expenses of InfluxData, such reimbursement shall be treated for VAT purposes as part of the consideration payable for the Subscription Services by InfluxData and shall not include any amount of VAT invoiced to InfluxData unless the InfluxData notifies Customer that it is not entitled to credit or repayment of that invoiced VAT from the relevant tax authority. In relation to any Subscription Services provided by InfluxData to Customer under this Agreement, if reasonably requested by InfluxData, Customer must promptly provide InfluxData with details of the Customer's VAT registration and such other information as is reasonably requested in connection with such InfluxData’s VAT reporting requirements in relation to such Subscription Services. It is InfluxData’s understanding that, in line with the nature of the Subscription Services, Customer will be using the Subscription Services only for enterprise (business) purposes. Should any tax authority provide notification to that VAT was applied by InfluxData in error, then: (a) InfluxData shall without unreasonable delay provide Customer with a valid credit note; and (b) if the VAT applied in error was paid by Customer, InfluxData shall, without unreasonable delay, repay to Customer any such VAT after obtaining a VAT credit or otherwise receiving a refund of such VAT from the tax authority for the VAT that was charged in error, subject to the reasonable cooperation of Customer in ensuring that, where reasonably possible, InfluxData will be able to apply for the refund. If VAT, GST, and other applicable indirect taxes were not charged but subsequently it is found that they should have been charged or such taxes are assessed and agreed with the relevant tax authority as being due on the consideration, the relevant taxes due will be paid upon presentation of a valid invoice and under the conditions that Customer has been notified of the assessment within a reasonable time. Any penalties or late payment interest related to the incorrect application of the VAT, GST, or other applicable indirect tax legislation shall be due by the party who is liable for the tax under the applicable law.
5.1. Warranties. InfluxData warrants to Customer that:
5.1.1. Performance Warranty. During the Subscription Term, the InfluxDB Platform, in the form provided by InfluxData, will conform in all material respects to its applicable specifications set forth in the Documentation.
5.1.2. Viruses. InfluxData will use commercially reasonable efforts, using applicable current industry practices, to ensure that the InfluxDB Platform, in the form provided by InfluxData to Customer under this Agreement, contains no computer virus, Trojan horse, worm or other similar malicious code.
5.1.3. Support Program. InfluxData will provide the Support Program in a good, professional and skillful manner, consistent with applicable industry standards.
5.1.4. Infringement. InfluxData’s provision to Customer of the Subscription Services does not infringe any third party patent existing under the laws of the United States, Canada, any member state of the European Economic Area, the United Kingdom, Switzerland, Australia, New Zealand, Singapore, Brazil, South Korea, India or Japan, or infringe any third party copyright, trademark or service mark, or result from misappropriation by InfluxData of any third party’s trade secrets (collectively, an “InfluxData Infringement”).
5.1.5. Compliance with Law. The Subscription Services, in the form provided or made available by InfluxData, will comply with all laws applicable to InfluxData and its provision of Subscription Services.
5.2. Performance Remedy. If the InfluxDB Platform fails to conform to the warranty set forth in Section 5.1.1 and Customer provides written notice of the non-conformance to InfluxData within the applicable Subscription Term then, as Customer’s exclusive remedy and InfluxData’s sole obligation, InfluxData will correct the non-conformance or, if InfluxData is unable to correct the non-conformance within 30 days of receipt of such written notice from Customer, Customer may terminate the applicable Subscription Services, and InfluxData will refund to Customer a pro-rata amount of any Subscription Services fees prepaid to InfluxData and applicable to the unutilized portion of the Subscription Term for the terminated Subscription Services.
5.3. Infringement Remedy. Customer’s sole and exclusive remedy for any non-conformance with the warranty in Section 5.1.4 above will be Customer’s defense and indemnification rights under Section 9.1 below, and Customer’s termination rights under Section 8.2 below.
5.4. Bugs and Abatement; Scope. Without limiting the express warranties in this Section 5, InfluxData does not warrant that the InfluxDB Platform or Subscription Services are completely free from all bugs, errors, or omissions, or will ensure complete security. The warranties in Sections 5.1.1 and 5.1.3 do not apply to any Free Trial, or to any InfluxData Supplemental Materials. Supplemental Materials developed, created or provided by third parties are made available AS IS, without warranty of any kind. The warranties in this Agreement are for the sole benefit of Customer, and may not be extended to any other person or entity.
5.5. Disclaimer of Implied Warranties. Neither party makes any representation or warranty in connection with the Subscription Services, except as expressly warranted in this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED IN THIS SECTION 5, EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OR IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, AND ANY STATUTORY REMEDY.
6. Confidential Information
6.1. Restrictions on Use and Disclosure. Neither InfluxData nor Customer will disclose to any third party any information provided by the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (such information, “Confidential Information”), and will make no use of such Confidential Information, except under and in accordance with this Agreement. The receiving party will take reasonable precautions (using no less than a reasonable standard of care) to protect the disclosing party’s Confidential Information from unauthorized access or use. Each party may disclose Confidential Information to its Affiliates and service providers, and its Affiliates and service providers may use such information, in each case solely for purposes of this Agreement. Each party will be liable for any breach of its obligations under this Section 6 that is caused by an act, error or omission of any such Affiliate or service provider. Confidential Information includes information disclosed by the disclosing party with permission from a third party, and combinations of or with publicly known information where the nature of the combination is not publicly known. InfluxData’s Confidential Information includes information regarding InfluxDB Platform, InfluxData’s processes, methods, techniques and know-how relating to time series data and time series databases, Documentation, roadmaps, pricing, marketing and business plans, financial information, information security information, and InfluxData’s ISMS Standards (defined in Section 7.4 below) certifications. Customer’s Confidential Information includes its proprietary workflows and processes, systems architecture, marketing and business plans, financial information, information security information, and information pertaining to Customer’s other suppliers. This Section 6 does not apply to InfluxData’s obligations regarding use and protection of Customer Data; those obligations are specified in Section 7 (Data Protection).
6.2. Exclusions. Except with respect to Personal Data, Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; or (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.3. Disclosure Required by Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information. The receiving party will disclose only that portion of the Confidential Information that is legally required.
6.4. Independent Development. The terms of confidentiality under this Agreement will not limit either party’s right to independently develop or acquire products, software or services without use of or reference to the other party’s Confidential Information.
7. Data Protection
7.1. Data Processing Addendum. To the extent that InfluxData processes any Personal Data on Customer’s behalf in the provision of the Services, the data processing addendum published at https://influxdata.com/legal ("DPA") as may be updated by InfluxData if required by applicable Law, and which is incorporated into this Agreement by this reference, will apply and the parties will comply with their respective obligations under the DPA. For purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer's assent to or execution of a Sales Order will be treated as signing of the Standard Contractual Clauses and their Appendices.
7.2. Information Security Measures.
7.2.1. General Standard: InfluxData will implement and maintain commercially reasonable technical and organizational security measures designed to meet the following objectives: (i) ensure the security and confidentiality of Customer Data in the custody or under the control of InfluxData; (ii) protect against any anticipated threats or hazards to the security or integrity of such Customer Data; (iii) protect against unauthorized access to or use of such Customer Data; and (iv) ensure that InfluxData’s return or disposal of such Customer Data is performed in a manner consistent with InfluxData’s obligations under items (i)-(iv) above.
7.2.2. Security Exhibit: InfluxData will maintain security measures and processes designed to protect Customer Data in its possession or under its control using measures that are substantially no less protective than those described in InfluxData’s Customer Security Exhibit (the “Security Exhibit”), published at https://influxdata.com/legal. Customer is solely responsible for consequences of Customer’s decision not to adopt updates or best practices that InfluxData makes available to Customer.
7.2.3. Audits and Security Assessments. InfluxData is and will remain in compliance with its SOC-2 statement and its ISO 27001 certification (collectively, “ISMS Standards”) throughout the Subscription Term. InfluxData will cause its independent ISMS Standards certification auditors to verify the adequacy of the controls that InfluxData applies to the Subscription Services at least annually. InfluxData will provide Customer with copies of its ISMS Standards certifications applicable to InfluxData’s provision of Subscription Services, upon request by Customer. Such certifications are Confidential Information of InfluxData and its auditors. InfluxData will in addition provide such information regarding its information security systems, policies and procedures as Customer may reasonably request relating to Customer’s due diligence and oversight obligations under applicable laws and regulations.
7.3. Data Export, Retention and Deletion. Customer may export Customer Data from the InfluxDB Platform as specified in the Security Exhibit. InfluxData will follow the data retention and deletion processes described in the Security Exhibit.
7.4. Regulator Inquiries and Court Orders. If any regulator, or any subpoena, warrant or other court or administrative order, requires InfluxData to disclose or provide Customer Data to a regulator or to any third party, or to respond to inquiries concerning the Processing of Customer Data, InfluxData will promptly notify Customer, unless prohibited by applicable law. Following such notification, InfluxData will reasonably cooperate with Customer in its response, except to the extent otherwise required by applicable law.
7.5. Restrictions. InfluxData will Process Customer Data only as necessary to provide the Subscription Services and as otherwise agreed in writing between InfluxData and Customer. InfluxData will not disclose Customer Data to third parties except to its sub-processors (and then only as necessary for provision of the Subscription Services), and as otherwise agreed in writing between Customer and InfluxData.
8. Term; Termination of Sales Orders
8.1. General. This Agreement will commence on the Effective Date and will continue in effect until terminated in accordance with Section 8.2 or 8.3 below.
8.2. Termination on Breach. In the event of a material breach of the Agreement by either party, the non-breaching party may terminate the Agreement or any Sales Order affected by the breach by giving the breaching party written notice of the breach and the non-breaching party’s intention to terminate. If the breach has not been cured within the period ending 30 days after such notice, and if the non-breaching party provides written notice of termination to the breaching party (“Termination Notice”), then this Agreement or any such Sales Order will terminate within the time period specified in the Termination Notice. Notwithstanding the foregoing, Customer’s failure to pay any overdue fees and expenses within 15 days of InfluxData notifying Customer of the overdue payment will constitute a material breach of this Agreement. If Customer has not cured a material breach within the applicable cure period, then InfluxData may, on not less than 5 business days’ prior written notice to Customer, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, until such breach has been cured in full, suspend performance of some or all of InfluxData’s obligations to provide Subscription Services under this Agreement. If Customer terminates this Agreement or any Sales Order for breach in accordance with this Section 8.2, then InfluxData will refund to Customer a pro-rata amount of any affected Subscription Services fees prepaid to InfluxData and applicable to the unutilized portion of the Subscription Term for terminated Subscription Services.
8.3. Termination for Convenience. The parties acknowledge and agree that each Subscription Term is priced as a minimum term, and may not be terminated for convenience. Either party may terminate a Free Trial at any time, for any reason, effective upon delivery of notice to that effect. Subject to the foregoing, InfluxData may not terminate any Subscription Services for convenience.
8.4. Subscription Term and Renewal. Each subscription term for Subscription Services will commence on the Subscription Start Date, and will continue for the period specified in the Sales Order or, if not so specified, one year (an “Initial Term”). Upon expiration of the Initial Term the parties may renew the Subscription Services term for successive periods of at least one year each (each, a “Renewal Term”) at such rates as may be mutually agreed in writing between them. InfluxData will provide Customer with notice of its proposed fees for renewal at least two months prior to the expiration of the then-current term. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term”.
8.5. Fulfillment of Obligations on Termination. Except as otherwise specified in this Agreement termination of the Agreement or of any Subscription Services will not entitle Customer to any refund of or relief from payment of any Subscription Services fees paid or payable under this Agreement.
8.6. Post Termination Obligations. Following any termination of the Agreement or any Sales Order, each party will, within 30 days of such termination, (i) immediately cease use of any Confidential Information of the other communicated for the purposes of this Agreement or such Sales Order, and (ii) return or destroy (and certify destruction of) all copies of any Confidential Information of the other party disclosed under the Agreement or such Sales Order within 30 days of such termination, subject to each party’s customary backup and archival processes.
8.7. Suspension – Critical Threats. If InfluxData, acting reasonably in the circumstances then known to InfluxData, determines that Customer’s or any of its Users’ use of the Subscription Services poses an imminent threat to (i) the security or integrity of any Customer Data or the data of any other InfluxData customer, or (ii) the availability of the InfluxDB Platform to Customer or any other InfluxData customer (collectively, a “Critical Threat”), then InfluxData will immediately attempt to contact Customer to resolve the Critical Threat. If InfluxData is unable to immediately contact Customer, or if InfluxData contacts Customer but Customer is unable to immediately remediate the Critical Threat, then InfluxData may suspend Customer’s and its Users’ use of the InfluxDB Platform until the Critical Threat is resolved and InfluxData is able to restore the Subscription Services for Customer.
8.8. Survival. The provisions of Sections 1, 3.3-3.4, 4.3-4.4, 6, 7, 8.5-8.8, 9-11 and 14 of this Agreement will survive any termination or expiration of this Agreement.
9.1. InfluxData’s Infringement Indemnification.
9.1.1. Defense and Indemnity. If any third party makes any claim against Customer that alleges an InfluxData Infringement (defined in Section 5.1.4) then, upon notification of such claim, InfluxData will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer, and indemnify Customer from and against all damages, fines and penalties finally awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by InfluxData, and resulting from the InfluxData Infringement. InfluxData’s obligations under this Section 9.1.1 are subject to Customer’s compliance with the “Indemnification Conditions” (defined below).
“Indemnification Conditions” means the following conditions with which a party must comply in order to be entitled to defense or indemnification under the Agreement by the other party: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party will relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defense of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement (not to be unreasonably withheld); (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expense; and (v) the indemnified party uses all commercially reasonable efforts to mitigate its losses.
9.1.2. InfluxData’s Mitigation Rights. If any Subscription Services become (or in InfluxData’s opinion are likely to become) the subject of any infringement or misappropriation claim, InfluxData may, and if Customer’s use of the Subscription Services is enjoined, InfluxData must, at its sole expense, either: (i) procure for Customer the right to continue using the relevant Subscription Services; (ii) replace or modify the relevant Subscription Services in a functionally equivalent manner so that they no longer infringe; or (iii) terminate the applicable Sales Order or Customer’s rights to use affected Subscription Services, and refund to Customer a pro-rata amount of any subscription fees prepaid to InfluxData and applicable to the unutilized portion of the Subscription Term for the terminated Subscription Services.
9.1.3. Exclusions. Notwithstanding the foregoing, InfluxData will have no obligation with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Subscription Services not in accordance with their applicable license rights, (ii) the combination of the Subscription Services with other products, equipment, software, services or data not supplied by InfluxData where the infringement would not have occurred but for such combination, or (iii) any Customer Data.
9.2. Customer’s Data Indemnification.
9.2.1. Defense and Indemnity. If any third party makes any claim against InfluxData that alleges that the Processing of Customer Data by or on behalf of InfluxData in accordance with this Agreement infringes or results from a misappropriation by Customer of any Intellectual Property Right of a third party, or violates any data protection or privacy rights of a third party, then, upon notification of such claim, Customer will, at its sole cost and expense, defend InfluxData against such claim and any related proceeding or investigation brought by such third party against InfluxData, and Customer will indemnify InfluxData from and against all damages, fines and penalties finally awarded against InfluxData or agreed to be paid by InfluxData in a written settlement approved in writing by Customer, and resulting from the non-conformance. Customer’s obligations under this Section 9.2.1 are subject to InfluxData’s compliance with the Indemnification Conditions.
9.2.2. Mitigation Rights. If Customer Data is, or in Customer’s reasonable opinion is likely to become, the subject of a claim subject to Section 9.2.1 above, then Customer will have the right to: (i) procure the rights necessary for Customer and InfluxData to continue to Process the affected Customer Data; (ii) modify the Customer Data so that there is no longer a non-conformance; or (iii) delete or otherwise remove the non-conforming Customer Data from the InfluxDB Platform.
9.2.3. Exclusions. Notwithstanding the foregoing, Customer will have no obligation under this Section 9.2 or otherwise with respect to any claim to the extent based upon InfluxData’s Processing of the affected Customer Data other than in accordance with this Agreement.
10. Limitations and Exclusions of Liability
10.1. Exclusion of Certain Claims. SUBJECT TO SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THIS AGREEMENT, ANY RELATED AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
10.2. Limitation of Liability. Subject to Section 10.3, neither party’s maximum aggregate liability arising out of this Agreement or any related agreement will in any event exceed the fees paid to InfluxData under the Sales Order giving rise to the claim during the 12 month period immediately preceding the aggrieved party’s first assertion of any claim against the other, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
10.3.1. Sections 10.1 and 10.2 do not apply to either party’s (a) willful misconduct or gross negligence, (b) infringement or misappropriation of any of the other’s Intellectual Property Rights, or (c) liability or loss which may not be limited by applicable law.
10.3.2. Notwithstanding Section 10.1, the following will be deemed direct damages for purposes of this Agreement: (a) any amounts payable by an indemnified party to a third party pursuant to a judgment or to a settlement agreement approved in writing by an indemnifying party, liability for which falls within the indemnifying party’s indemnification obligations under this Agreement, and (b) all fees payable by Customer under this Agreement.
10.3.3. Section 10.2 does not apply to (i) each party’s defense and indemnification obligations, (ii) Customer’s obligations to pay fees and expenses when due and payable under this Agreement, nor (iii) either party’s obligations under Section 6 (Confidential Information), Section 7 (Data Protection) or the DPA (if applicable), provided, however, that except to the extent of willful misconduct or gross negligence of InfluxData, InfluxData’s maximum aggregate liability under Section 6, Section 7 and the DPA will not exceed two times (2X) the fees paid by Customer to InfluxData under the affected Sales Order in the 12 month period immediately preceding Customer’s first assertion of its claim.
10.4. Free Trial. With respect to any Free Trial, InfluxData’s aggregate liability will in no event exceed one hundred US dollars, regardless of any theory of liability, and notwithstanding any provision of this Agreement to the contrary, including Sections 10.1-10.3.
10.5. General. Each party agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such party, or fail of their essential purpose and that without these limitations the fees for the Subscription Services would be significantly higher.
11. Dispute Resolution
11.1. Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the internal laws of the states or countries specified in the table below, without regard to conflicts of laws principles. In the event of any controversy or claim arising out of or relating to this Agreement, or its breach or interpretation, the parties will submit to the jurisdiction of and venue in the applicable courts or arbitration bodies specified in the table below. Each party waives all defenses of lack of personal jurisdiction and inconvenient forum.
|If the Customer’s address in the Sales Order is in:||The governing law is that of:||The arbitration bodies having exclusive jurisdiction are:|
|The USA, Mexico, Canada or any country in Central or South America or the Caribbean, or any country falling outside the regions listed in this table||California, USA, and controlling United States federal law||Arbitration in San Francisco, California, USA under the Commercial Arbitration Rules and the Optional Rules for Emergency Measures of Protection of the American Arbitration Association; those rules are incorporated by reference in this clause.1|
|Any country in the United Kingdom, the Middle East, or Africa||England||Arbitration in London, England under the Rules of the London Court of International Arbitration (LCIA); those rules are incorporated by reference in this clause.1|
|Any country in the European Economic Area or Switzerland||Republic of Ireland||Arbitration in Dublin, Ireland under the UNCITRAL Arbitration Rules; those rules are incorporated by reference in this clause.1|
|Any country located in Asia or the Pacific region, other than Australia and New Zealand||Singapore||Arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre then in force; those rules are incorporated by reference in this clause.1|
|Australia or New Zealand||New South Wales, Australia||Courts located in Sydney, New South Wales, Australia|
Note 1: The Tribunal will consist of one independent, disinterested arbitrator. The language of the arbitration will be English. The determination of the arbitrator will be final, conclusive and binding. Judgment upon the award rendered may be entered in any court of any state or country having jurisdiction.
11.2. Legal Expenses. If any proceeding is brought by either party to enforce or interpret any term or provision of this Agreement, the substantially prevailing party in such proceeding will be entitled to recover, in addition to all other relief arising out of this Agreement, its reasonable attorneys' and other experts' (including without limitation accountants) fees and expenses.
12. Additional Terms of Service
The following additional terms and conditions (“Additional Terms of Service”) apply to Customer’s use of the Subscription Services, and are incorporated into this Agreement by this reference. The Additional Terms of Service are published at https://www.influxdata.com/legal:
- Support Program (does not apply to Free Trials)
- Acceptable Use Policy
13. Purchase Through Channel Partners
13.1. Applicability. This Section 13 only applies to Customers purchasing Subscription Services through a Channel Partner. If Customer is uncertain as to the applicability of this section to its purchase of Subscription Services, Customer should contact InfluxData for further information.
13.2. Channel Partners. If Customer acquired the Subscription Services from a Channel Partner, then this Agreement is not exclusive of any rights Customer obtains under the Channel Partner Sale Agreement; however, if there is any conflict between the provisions of this Agreement and the Channel Partner Sale Agreement, then as between Customer and InfluxData, the provisions of this Agreement prevail. If a Channel Partner has granted Customer any rights that InfluxData does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer’s sole recourse with respect to such rights is against the Channel Partner.
13.3. Term and Renewal. If Customer ordered the Subscription Services through a Channel Partner, then Section 8.4 is inapplicable, and the Subscription Term will begin on the Subscription Start Date and, subject to the remainder of Section 8, it will expire, renew and terminate in accordance with the terms of the Channel Partner Sale Agreement.
13.4. Fees and Payment. If Customer ordered the Subscription Services through a Channel Partner, then the provisions of Section 4 do not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Channel Partner Sale Agreement. However, if the Channel Partner from whom Customer purchased the Subscription Services fails to pay InfluxData any amounts due in connection with Customer’s use of the Subscription Services, then InfluxData may suspend Customer’s rights to use the Subscription Services without liability, upon notice to Customer. Customer agrees that Customer’s remedy in the event of such suspension is solely against the Channel Partner.
14. Miscellaneous Provisions
14.1. Affiliates. This Agreement set forth the general terms and conditions under which InfluxData will provide Subscription Services to Customer and its Affiliates. Sales Orders may be entered into under this Agreement by either the entity designated above as “Customer” or any of Customer’s Affiliates. The entity that executes a Sales Order in the position of Subscription Services recipient will be considered the “Customer” for all purposes of the Sales Order; and the Sales Order will be considered a two party agreement between InfluxData and such “Customer” under this Agreement.
14.2. Publicity; References. Unless otherwise specified in the applicable Sales Order, InfluxData may refer to Customer as one of InfluxData’s customers and use Customer’s logo as part of such reference, provided that InfluxData complies with any trademark usage requirements notified to it by Customer. With Customer’s prior written approval, including if so specified in the applicable Sales Order, (i) InfluxData may either (a) issue a press release announcing the relationship between InfluxData and Customer, or (b) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed.
14.3. Compliance with Laws – Export Control; Anti-Bribery; Modern Slavery. Each party will comply with all laws and regulations applicable to it, including U.S. export control laws. Neither party will have any liability to the other for any non-performance of their obligations under this Agreement to the extent that the non-performance is mandated by applicable law. Each party represents and warrants to the other that neither it nor its Affiliates, nor any of its or their users, officers or directors, are persons, entities or organizations with whom the other party is prohibited from dealing (including provision of software, products or Subscription Services) by virtue of any applicable law, regulation, or executive order, including US export control laws, and names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List. Each party will comply with the requirements of applicable anti-bribery and modern slavery laws, including: (i) the Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010; and (ii) the UK Modern Slavery Act 2015, California Transparency in Supply Chains Act 2010 and any applicable anti-slavery laws.
14.4. U.S. Government Rights In The Subscription Services. InfluxData provides the Subscription Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Subscription Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with InfluxData to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
14.5. Equitable Relief. Each of Customer and InfluxData acknowledges that damages will be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of a party’s Intellectual Property Rights, Confidential Information or Personal Data. Accordingly, each of them will have the right, in addition to any other rights each of them may have, and notwithstanding any obligation to engage in arbitration, to seek in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the obligations in this Agreement.
14.6. Business Continuity / Disaster Recovery. During any period in which Customer is subscribed to the Subscription Services, InfluxData will comply with its then current applicable Business Continuity and Disaster Recovery Plans. InfluxData will test such plans at least once a year. InfluxData will provide Customer with summaries of such plans and test results upon written request. InfluxData may not modify such plans to provide materially less protection to Customer without Customer’s prior written consent, which may not be unreasonably conditioned or withheld.
14.7. Force Majeure. If the performance of this Agreement is adversely restricted or if either party is unable to conform to any warranty or obligation by reason of any Force Majeure Event then, except with respect to obligations to pay any fees or expenses and to obligations under Section 14.6 above (Business Continuity / Disaster Recovery), the party affected, upon giving prompt written notice to the other party, will be excused from such performance on a day-to-day basis to the extent of such restriction (and the other party will likewise be excused from performance of its obligations on a day-to-day basis to the extent such party’s obligations relate to the performance so restricted); provided, however, that the party so affected will use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties will proceed whenever such causes are removed or cease. “Force Majeure Event” means any failure or delay caused by or the result of causes beyond the reasonable control of a party or its service providers that could not have been avoided or corrected through the exercise of reasonable diligence, including natural catastrophe, internet access or related problems beyond the demarcation point of the party’s or its applicable infrastructure provider’s facilities, state-sponsored malware or state-sponsored cyber-attacks, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, pandemic or other similar occurrence. If a party fails to perform its obligations as a result of such restriction for a period of more than 30 days, then the other party may terminate the affected Subscription Services without liability.
14.8. Usage Data.
14.8.2. De-identification and Aggregation of Usage Data. InfluxData will not disclose any Usage Data to any third party, except in the form of Aggregated Usage Data. “Aggregated Usage Data” means Usage Data that does not contain any Personal Data of any User, does not identify Customer or any of its Users, and that may not reasonably be associated with any other data of Customer or any of its Users so as to identify them. Notwithstanding the foregoing, InfluxData may disclose Usage Data to its Affiliates and service providers as InfluxData reasonably determines necessary to provide and improve the Subscription Services, subject to written confidentiality obligations.
14.9. Discriminatory Practices. Neither party will adopt or pursue a policy or mission that promotes or results in discrimination in hiring, compensation, promotion, termination, retirement, training, programs, and/or Subscription Services, based on race, color, sex, national origin, religion, age, disability, gender identity or expression, marital status, pregnancy, sexual orientation, political affiliation, union membership, or veteran status.
14.10. Captions and Headings. The captions and headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.
14.11. Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
14.12. Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.
14.13. Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party. If the law governing this Agreement is English law, then a person who is not a party to this Agreement will not have any rights under the Contracts (Rights of Third Parties) Act 1999) to enforce any term of this Agreement. Notwithstanding the foregoing, InfluxData’s suppliers of products and Subscription Services delivered hereunder will enjoy the same disclaimers of warranty, limitations on liability and similar exculpatory provisions with respect to such products and Subscription Services as does InfluxData.
14.14. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, which will not be unreasonably withheld, provided, however that either party may assign all, but not some of its rights and obligations under this Agreement to any of its Affiliates, or to any entity into or with which it is merged, or that acquires all or substantially all of its assets, upon notice to the other party, but without requiring consent. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
14.15. Notices. InfluxData will provide Customer with notices that affect InfluxData’s customers generally (e.g., notices that relate to updates to, or the availability or interoperability of the InfluxDB Platform) via e-mail or the InfluxDB Platform dashboard or account center. InfluxData will provide Customer with any legal notices by pre-paid first class mail, air courier or e-mail to the mailing or e-mail address Customer provided InfluxData on the applicable Sales Order, or during Customer’s registration for the Subscription Services, or to a substitute, updated mailing or e-mail address that Customer has provided to InfluxData for these purposes. Customer is responsible for keeping its mailing and e-mail address current with InfluxData. Except as otherwise specified in this Agreement, all notices to be given to InfluxData under this Agreement must be in writing and sent by email to [email protected], or by prepaid first class mail or air courier at the address specified on the first page of this Agreement, or to a substitute, updated address notified by InfluxData, marked “Attention: Legal Department”. Notices sent electronically will be deemed received within 1 business day of dispatch. Notices sent by prepaid first class mail will be deemed received within 5 business days of dispatch (however, notices sent by mail to addressees in a different country from that of the sender will be deemed received upon delivery). Notices sent by air courier, or personally delivered, will be deemed received upon delivery.
14.16. Governing Language. The governing language for this Agreement and its related transactions, for any notices or other documents transmitted or delivered under this Agreement, and for the negotiation and resolution of any dispute or other matter between the parties, will be the English language. If there is any conflict between the provisions of any notice or document and an English version of the notice or document (including this Agreement), the provisions of the English version will prevail. Customer waives any rights it may have under any law in any state or country to have the Agreement written in any language other than English. In transactions between the parties, a decimal point will be indicated by a period, and not by a comma.
14.18. Counterparts. Sales Orders, this Agreement, and any amendments to this Agreement may be executed in one or more counterparts, which taken together will constitute a single agreement between the parties.