Software-as-a-Service Terms of Use


   

INFLUXDATA

SOFTWARE AS A SERVICE TERMS OF USE

Last Revised: May 18, 2016

These are the terms of use (the “Terms of Use”) under which InfluxData agrees to grant Customer access to and use of InfluxData’s online software service offerings and, if applicable, certain professional services. By indicating Customer’s acceptance of these Terms of Use, by executing a Sales Order that references these Terms of Use, or by using InfluxData’s software or services, Customer agrees to be bound by these Terms of Use. If you are entering into these Terms of Use 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 these Terms of Use. If you do not have that authority or if Customer does not agree with the terms of these Terms of Use, then you may not indicate acceptance of these Terms of Use, and neither you nor Customer may use or access any of InfluxData’s service offerings or other services.

Background

InfluxData provides time-series data management solutions, by providing its customers with access to InfluxData’s on-line software applications and tools and, if applicable, by providing related professional services. Customer wishes to acquire a subscription-based license the computer software applications and tools and, if applicable, to purchase professional services, all as specified in one or more “Sales Orders” under and subject to these Terms of Use.  Therefore, for good and valuable consideration, the receipt and sufficiency of which they each acknowledge, InfluxData and Customer agree to be bound by these Terms of Use.

Section 1.                 Definitions

For the purposes of these Terms of Use, the following initially capitalized words are ascribed the following meanings:

Acceptable Use Policy” means the InfluxData policy described in Section 11.

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.

Channel Partner” means an entity that InfluxData has authorized as a “distributor” or “reseller” of InfluxData’s Services.

Channel Partner Sale Agreement” means the order, agreement or other document between Customer and a Channel Partner for Customer’s purchase of Services. Terms that apply to Customer’s use of the Services when purchased from a Channel Partner are specified in Section 11.

Confidential Information” has the meaning ascribed to it in Section 6.1.

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.

Customer” means the entity identified as such in the applicable Sales Order.

Customer Data” means any data or other information owned or controlled by Customer which is provided by Customer to InfluxData in connection with the Services.

Customer Materials” means any software, documentation, Customer Data, hardware, tools, trademarks, service marks or brands, or any other materials, information or intellectual property owned, leased, licensed or used by Customer, and that Customer delivers to InfluxData or to which Customer provides InfluxData with access, or that Customer requires InfluxData to use for purposes of the Services.

Documentation” means the software user and administrator manuals provided to Customer by InfluxData regarding use of the InfluxData Technology, including additional, updated or revised documentation, if any.

InfluxData Methodology” means InfluxData’s processes, methods, techniques and know-how, relating to the InfluxData Technology or to time-series data management solutions.

InfluxData Software” means the InfluxData computer software applications, tools and other programs specified in a Sales Order.

InfluxData Technology” means the Site, the InfluxData Software and its Documentation, together with other computer software programs, networks and equipment that InfluxData uses to make the foregoing available to its customers as an on-line subscription offering.

InfluxData Technology Subscription Services” means the InfluxData Technology service offerings to which Customer subscribes, as specified in the applicable Sales Order.

Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), 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 Information” means personally identifiable information of an individual person that is required to be protected by applicable law.

Professional Services” means the professional services (typically consulting and configuration) to be performed by InfluxData that are specified in the applicable Sales Order. Professional Services are not required for use of the Subscription Services. Terms governing Professional Services are specified in the ‘Additional Terms of Service – Professional Services Terms’ referenced in Section 12.

Sales Order” means any mutually agreed, written sales order, executed on behalf of InfluxData and Customer (including its exhibits and addenda), describing the Subscription Services, Support Program, Professional Services (if applicable), fees, and any special terms for using the Subscription Services that Customer has ordered. If Customer subscribes via InfluxData’s online checkout, then the checkout form submitted by Customer and accepted by InfluxData constitutes the applicable Sales Order for purposes of these Terms of Use. Each Sales Order becomes effective on its Sales Order Effective Date, and is made part of these Terms of Use as described in Section 1.2.

Sales Order Effective Date” means, with respect to each Sales Order, (i) the effective date specified in the Sale Order or, if none, then the date on which the last of InfluxData and Customer executes the Sales Order, (ii) in the case of an online checkout form, the date on which InfluxData enters the completed online checkout form into its system, or (iii) if Customer purchases Services through a Channel Partner, upon InfluxData’s acceptance of the Sales Order following its submission by the Channel Partner.

Services” means the Subscription Services and the Professional Services.

Site” means a location designated by InfluxData which may include a subpage within InfluxData’s website (www.influxdata.com) or other location or method of providing access to Customer to the InfluxData Content or the InfluxData Technology.

Subscription Services” means the InfluxData Technology Subscription Services.

Subscription Term” has the meaning ascribed to it in Section 7.

Term” means the Initial Term and any Renewal Terms, as more fully described in Section 7.

Third Party Service Provider” means a third party that provides services to Customer, and that has agreed in writing with Customer to requirements to protect Intellectual Property Rights and Confidential Information of Customer, its suppliers and licensors that are substantially no less protective of Intellectual Property Rights and Confidential Information than those contained in these Terms of Use, and that is not a direct competitor of InfluxData.

User” means any individual who is an employee or independent contractor of Customer or its Affiliates or, to the extent providing services to Customer, is an employee of a Third Party Service Provider, and who is authorized by Customer to use the InfluxData Technology pursuant to the applicable Sales Order.

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; and (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation.

1.2            Construction. These Terms of Use apply to the provision of all Services.  The parties will enter into one or more Sales Orders that contain additional terms and conditions applicable to the provision of certain Services.  Upon execution by the parties, each Sales Order will be incorporated into these Terms of Use.

Section 2.        Provision and Use of Services

2.1            Provision of InfluxData Technology Subscription Services. Customer may access and use the InfluxData Technology Subscription Services in accordance with these Terms of Use. Access to the InfluxData Technology Subscription Services is available through the Internet over an https connection, via a password-protected computer interface or access code.

2.2            Customer’s Account. Customer will designate one of its employees to be the point of contact with InfluxData for the management and support of the InfluxData Technology Subscription Services (“Administrator”), and who will be responsible for establishing and managing Customer’s use of the InfluxData Technology Subscription Services (“Account”), including the creation of usernames and passwords to access Customer’s Account. Customer is solely responsible for maintaining the status of its User base. Customer will safeguard all User authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under the Account. Customer will notify InfluxData immediately if Customer believes an unauthorized third party may be using Customer’s Account or if Customer’s Account information is lost or stolen.

2.3            InfluxData’s Responsibilities. During the Subscription Term, InfluxData will use commercially reasonable efforts to make the InfluxData Technology Subscription Services available 24 hours a day, 7 days a week, except for planned downtime (of which InfluxData will give at least 48 hours’ notice and which InfluxData will schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time. InfluxData may in addition perform unscheduled emergency maintenance for the security or performance of the InfluxData Technology 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.

2.4            Customer’s Responsibilities. Customer is solely responsible for the accuracy, quality and integrity of the Customer Data that Customer inputs or provides for input into the InfluxData Technology. Customer must comply with the Acceptable Use Policy referenced in Section 12 below. Customer will ensure that its Users, its Affiliates, its Third Party Service Providers, and its and their employees, agents and representatives comply with Customer’s obligations under these Terms of Use, and Customer is responsible for their acts and omissions relating to these Terms of Use as though they were Customer’s own.

Section 3.        Proprietary Rights

3.1.          License by InfluxData. Subject to the terms and conditions of these Terms of Use, InfluxData hereby grants to Customer a non-exclusive, non-transferable, limited license, without right to sub-license, for the Subscription Term, to access and use the InfluxData Technology Subscription Services in accordance with these Terms of Use, solely for Customer’s internal business operations, and subject to the license metrics and other scope limitations specified in the applicable Sales Order. InfluxData reserves all other rights not expressly granted in these Terms of Use.

3.2            License by Customer. Customer hereby grants to InfluxData a non-exclusive, limited, royalty-free license, without right to sub-license, to use the Customer Materials solely as necessary to perform the Services. Customer reserves all other rights not expressly granted in these Terms of Use.

3.3            Ownership of Intellectual Property Rights.

3.3.1        Ownership and Use of Customer Materials. Customer retains all of its rights, title and interest and Intellectual Property Rights in and to the Customer Materials and Customer Confidential Information. No ownership interest in the Customer Materials or Customer Confidential Information is transferred or conveyed to InfluxData by virtue of these Terms of Use. InfluxData will use Customer Materials and Customer Confidential Information only for purposes of providing the Services, unless otherwise be 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 InfluxData Technology, the InfluxData Methodology, InfluxData’s Confidential Information, the Subscription Services, and all enhancements or improvements to, or derivative works of the foregoing created or developed by or on behalf of InfluxData (collectively, “InfluxData Intellectual Property”). Except as otherwise agreed in writing between the parties, nothing in these Terms of Use 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 InfluxData Technology; (ii) reproduce, modify, or prepare derivative works of any of the InfluxData Technology or Documentation; (iii) distribute or display any of the InfluxData Technology or Documentation other than to Customer’s Users; or (iv) share, rent or lease the InfluxData Technology Subscription Services, or use the InfluxData Technology Subscription Services to operate any timesharing, service bureau or similar business. Some components of the InfluxData Technology may also be governed by applicable open source software licenses located in the software component’s source code. Customer’s license rights with respect to these individual components are defined by the applicable open source software license, and nothing in this Agreement will restrict, limit, or otherwise affect any rights or obligations Customer may have, or conditions to which Customer may be subject, under such open source software licenses.

3.5            Suggestions. If Customer provides InfluxData with any suggested improvements or enhancements to the Services or InfluxData Technology (“Suggestions”), then Customer also grants InfluxData a non-exclusive, perpetual, irrevocable, paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Suggestions.

Section 4.        Compensation

4.1            Subscription Plans. Customer’s subscription plan for the Subscription Services is specified in the applicable Sales Order. Customer may not reduce Customer’s commitment under the Subscription Services subscription plan specified in the Sales Order during the Services 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 volume Customer ordered, and Customer may not carry over any of the unused volume to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Subscription Services subscription plan for a Renewal Term, then Customer must notify InfluxData at least 60 days before the start of the Renewal Term for the applicable Subscription Services; the reduction will be effective at the start of the Renewal Term.

4.2            Subscription Fees. Except as expressly stated otherwise in any Sales Order, InfluxData will invoice Customer for Subscription Services in advance, at the rates or for the fees specified in the applicable Sales Order. If Customer subscribes via InfluxData’s online checkout, customer will pay the Subscription Fees by credit card.

4.3            Payment Terms. The billing method and payment terms for amounts due under these Terms of Use are as specified in the applicable Sales Order. Except as otherwise specified in these Terms of Use, InfluxData bills and collects in advance for use of the Services. Invoices for Service subscription fees and other amounts are due and payable in US dollars within 30 days of the date of invoice; however, if Customer subscribes via InfluxData’s online checkout, then Customer will pay its fees for Subscription Services by credit card when Customer submits its order. InfluxData may apply finance charges equal to 1.5% per month or the highest rate permitted by applicable usury law, whichever is less, to any amount not paid when due.

4.4            Taxes. Customer will be responsible for and will pay to InfluxData any applicable sales, use, or any value added or similar taxes (collectively, “Taxes”) payable with respect to provision of the Services to Customer, or arising out of or in connection with these Terms of Use, 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.

4.5            Records and Inspection; Audit.

4.5.1        InfluxData Records. InfluxData will maintain reasonably complete and accurate accounting records to substantiate InfluxData’s variable charges and expenses hereunder. InfluxData will retain such records for a period of at least two years from the date of the invoice applicable to such charges and/or expenses. Upon not less than 45 days prior written notice, an independent certified public accountant appointed by Customer may inspect, copy and audit such records at InfluxData’s corporate offices.

4.5.2        Audit Conditions. Whenever a party or its designee conducts any audit or inspection under these Terms of Use, such party will comply, and will ensure that its appointed accountants comply with the following (collectively, the “Audit Protection Conditions”): audits and other inspections will be conducted at any time during the audited party’s regular business hours; the auditing party and its auditors will comply with the audited party’s reasonable security requirements in conducting the inspection, and will use commercially reasonable efforts to minimize disruption to the audited party’s business; the auditing party and its auditors will treat all information that they obtain from the inspection as Confidential Information of the audited party, except to the extent necessary for the auditing party to enforce its rights under the Terms of Use. In no circumstances will the auditing party or its auditors have access to any information protected by attorney client privilege or the “work product” doctrine nor, if InfluxData is the audited party, to any information pertaining to InfluxData’s other customers, nor to any information relating to the audited party’s margins. Unless an audit discloses a material non-compliance by the audited party with its obligations under these Terms of Use, the auditing party may exercise such audit rights no more than once during any twelve (12) month period. Unless the audit reveals a discrepancy in favor of the audited party of more than 10% of fees and expenses that should have been paid for the audited period, the auditing party will bear all costs and expenses relating to the audit, including compensation to InfluxData for personnel and materials provided to facilitate the audit, and InfluxData’s then current rates.

Section 5.        Warranties

5.1            Warranties.   InfluxData warrants to Customer that:

5.1.1        Performance Warranty. During the Subscription Term, the InfluxData Technology made available to Customer for Customer’s use will conform in all material respects to its applicable specifications set forth in the Documentation.

5.1.2        Viruses and Lock-Outs. InfluxData will use commercially reasonable efforts, using then-current versions of commercially available anti-virus software and tools, to ensure that the InfluxData Technology, in the form provided by InfluxData to Customer under these Terms of Use, contain no computer virus, Trojan horse, worm or other similar malicious code.

5.1.3        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 or Canada, 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”).

5.2            Performance Remedy. If any InfluxData Technology 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 either repair or, at its option, replace the non-conforming InfluxData Technology with conforming InfluxData Technology 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 insofar as they apply to the non-conforming InfluxData Technology, 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.

5.4            Bugs and Abatement; Scope. Without limiting the foregoing, InfluxData does not warrant that the InfluxData Technology or Services are completely free from all bugs, errors, or omissions, or will ensure complete security. The warranty in Section 5.1.1 does not apply to any trial or evaluation subscription to the InfluxData Technology. The warranties in these Terms of Use will automatically abate to the extent that the InfluxData Technology have been modified by persons other than InfluxData’s authorized employees or representatives, or other than at InfluxData’s express direction. The warranties in these Terms of Use are for the sole benefit of Customer, and may not be extended to any other person or entity.

5.6            Disclaimer Of Implied Warranties. InfluxData makes no representation or warranty in connection with the InfluxData Technology or Services, except as expressly so set forth in this Section 5 or the Additional Terms of Service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED IN THIS SECTION 5 OR THE ADDITIONAL TERMS OF SERVICE, 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.

Section 6.        Confidential Information; Personal Information; Data Protection

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 these Terms of Use 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 these Terms of Use. Confidential Information includes: information concerning Inventions, concepts, ideas, techniques, specifications, drawings, diagrams, models, samples, flow charts, computer programs and code and their associated documentation and programmer’s notes, network topography and network configuration and access information, security policies and processes, data, finances and plans, business plans, contracts, marketing plans, system implementation plans, business concepts, business procedures and business operations, pricing, market analysis, research, strategies, projections, forecasts and financial information and all materials related thereto; and Personal Information. Confidential Information also 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. Customer’s Confidential Information includes Customer Data. InfluxData’s Confidential Information includes any information regarding the InfluxData Technology, InfluxData Methodology, InfluxData service offerings, and Documentation.

6.2            Exclusions. Except with respect to Personal Information, 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 or Personal 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 or Personal 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 or Personal Information.

6.4            Independent Development. The terms of confidentiality under these Terms of Use 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.

6.5            Data Processing and Personnel Approvals. Except to the extent otherwise specified in the applicable Sales Order, Customer is solely responsible for obtaining and will obtain all necessary consents, licenses and approvals for the processing of any Customer Data as part of the Services.

6.6            Protection of Customer Data.

6.6.1        Regulatory Requirements. To the extent applicable to the Services required to be provided by InfluxData to Customer under these Terms of Use, InfluxData will comply, and will ensure that its employees and subcontractors comply (to the extent such subcontractors have access to Personal Information), with the requirements of applicable state and federal privacy laws and regulations governing Customer Personal Information in InfluxData’s possession or under its control (collectively, “Regulatory Requirements”). Customer may not provide InfluxData with Personal Information or upload Personal Information to the InfluxData Technology without InfluxData’s express prior written consent in each instance.

6.6.2        Security Program. To the extent applicable to the Services provided by InfluxData to Customer under these Terms of Use, InfluxData will implement and maintain commercially reasonable security measures designed to meet the following objectives (collectively, the “InfluxData Security Program”): (i) ensure the security and confidentiality of Customer Data in the custody and 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; (d) encrypt Customer Data as specified in Section 6.6.3 below; 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. Customer acknowledges and agrees that is commercially reasonable for InfluxData to rely upon the security processes and measures utilized by InfluxData’s cloud infrastructure providers.

6.6.3        Encryption. InfluxData will encrypt Customer Data in InfluxData’s possession or under its control when transmitted by InfluxData, using any then current industry standard encryption technologies. Notwithstanding the foregoing, unless specified otherwise in the applicable Sales Order, InfluxData is not required to encrypt Personal Information which is stored on servers located in InfluxData’s or its service providers’ data centers with a SSAE-16 (or similar) certification.

6.6.4        Certification; Audits. InfluxData will provide Customer with copies of its or its service providers’ SSAE-16 or similar certifications applicable to InfluxData’s provision of Subscription Services, if any, upon request by Customer. During InfluxData’s provision of Subscription Services under these Terms of Use, if and to the extent required by applicable law, Customer and its regulators may audit InfluxData’s records related to its access to and storage or processing of Customer Data, upon not less than 45 days prior written notice to InfluxData, solely as necessary to verify InfluxData’s compliance with its obligations under this Section 6.6.  With respect to any audit performed under this Section 6.6.4, Customer will, and will require that its auditors will, and will request its regulators to, comply with the Audit Protection Conditions.

6.6.5        Breach Notification. InfluxData will notify Customer of unauthorized access to, or use or disclosure of Customer Data within InfluxData’s custody and control within one business day of InfluxData’s confirmation of the same; each party will reasonably cooperate with the other with respect to the investigation and resolution of such unauthorized access, use or disclosure. Upon confirmation of any vulnerability or breach of InfluxData’s security affecting Customer Data in InfluxData’s custody and control, InfluxData will modify its processes and security program as necessary to mitigate the effects of the vulnerability or breach upon such Customer Data.  Customer will notify InfluxData of any security compromise affecting its Users’ authentication credentials used to access the InfluxData Technology, and any Customer systems or networks that interoperate with or transmit data to the InfluxData Technology, within one business day of confirmation of the same.

6.6.6        InfluxData’s Processing of Customer Data. InfluxData will be liable for any unauthorized access to Customer Data by third parties only to the extent resulting from InfluxData’s failure to adhere to the InfluxData Security Program, or from InfluxData’s gross negligence or willful misconduct. The provisions of this Section 6.6.6 apply notwithstanding any provision of these Terms of Use or any other agreement between InfluxData and Customer (or any Affiliate of Customer) to the contrary.

Section 7.        Term; Termination of Sales Orders

These Terms of Use will commence on the Effective Date and will continue in effect until terminated in accordance with Section 7.1 or 7.2 below.

7.1            Termination On Breach. In the event of a material breach of the Terms of Use by either party, the non-breaching party may terminate the Terms of Use or any Sales Order directly 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”), these Terms of Use 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 30 days of InfluxData notifying Customer of the overdue payment, which notice may include informing Customer’s Project Manager or accounts payable representative of the overdue payment in writing (including by email), will constitute a material breach of these Terms of Use. If Customer has not cured a material breach within the applicable cure period, then InfluxData may, 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 Services or InfluxData Technology under these Terms of Use.

7.2            Termination for Convenience. Either party may terminate any Subscription Services effective upon expiration of the then current Subscription Term by providing the other party prior written notice of termination of at least the following length: if Customer is the terminating party, at least 30 days; and if InfluxData is the terminating party, at least 90 days.

7.3            Subscription Term and Renewal.

7.3.1        Term. Each subscription term for Subscription Services will commence on the Sales Order Effective Date and will continue for the period specified in the Sales Order or, if not so specified, one year (an “Initial Term”). Unless otherwise specified in the Sales Order, the Initial Term will automatically renew for additional terms of the same length of the Initial Term (each, a “Renewal Term”) unless either party declines renewal by notice in writing to that effect delivered to the other party at least 30 days prior to expiration of the then current subscription term. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term”.

7.3.2.      Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Subscription Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Subscription Service will be coterminous with the current Subscription Term and InfluxData will invoice Customer an amount equal to the difference between the original Subscription Service fee and the upgraded Subscription Service fee.  If Customer subscribes to an additional Subscription Service, the Subscription Term for that Subscription Service will begin on the Sales Order Effective Date for that Subscription Service and Customer will be separately invoiced for the applicable activation and Subscription Service fee for the additional Subscription Service.

7.3.3        Fee Increases. Fees for Services are subject to increases, which will be effective beginning upon the first day of each Renewal Term. InfluxData will notify Customer of any increase prior to its becoming effective; notice may be in a form of an invoice. If Customer objects to the increase, then Customer may terminate its subscription to the affected Services for convenience by notice provided to InfluxData at any time within 30 days of receipt of the increase notice; any such termination will be effective on the later to occur of the expiration of the 30 day period or the then current Subscription Term. Customer acknowledges that expiration of any discount or incentive programs to which Customer was previously entitled do not constitute fee increases.

7.4            Fulfillment of Obligations on Termination. Termination of the Terms of Use or of any Services will not relieve Customer from any obligation to pay fees or reimburse expenses for Services performed prior to termination.

7.5            Refund of Prepaid Subscription Fees if Customer Terminates for Breach. If Customer terminates these Terms of Use or any Sales Order for breach in accordance with Section 7.1 above, then 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 terminated Subscription Services. Customer is not entitled to any refund or relief from payment of any Subscription Services fees paid or payable under these Terms of Use if Customer terminates these Terms of Use or an applicable Sales Order for convenience.

7.6            Post Termination Obligations. Following any termination of the Terms of Use 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 these Terms of Use 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 Terms of Use or such Sales Order within 30 days of such termination.

7.7            Access to and Retention of Customer Data. Customer may download an export file of Customer Data stored on the InfluxData Technology at any time during the Subscription Term, and during the 30 day period following its termination or expiration. InfluxData will destroy or overwrite Customer Data within a reasonable period of time following termination of the applicable Sales Order, subject to conformance with InfluxData’s backup and data retention policies.

7.8            Suspension. InfluxData may suspend Customer’s right to access or use any portion of the InfluxData Technology Subscription Services immediately upon notice to Customer if InfluxData determines that Customer’s, its Affiliates’, or its or their Users’ use of the InfluxData Technology Subscription Services (i) poses a security risk to the InfluxData Technology Subscription Services or any third party, (ii) may adversely impact the InfluxData Technology Subscription Services, or the networks or data of any other InfluxData customer or business partner, (iii) does not comply with applicable law, or (iv) may subject InfluxData or any third party to liability.

7.9            Survival. The provisions of Sections 1, 3, 4.5, 6, 7.5-7.7, 7.9, 9, 10 and 14 of these Terms of Use will survive any termination of these Terms of Use.

Section 8.        Indemnification

8.1            InfluxData’s Infringement Indemnification.

8.1.1        Defense and Indemnity. If any third party makes any claim against Customer that, if true, would constitute an InfluxData Infringement 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 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 8.1.1 are conditioned upon 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 Terms of Use 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 these Terms of Use 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; (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; (v) the indemnified party complies with any court order or reasonable settlement made in connection with the proceeding; and (vi) the indemnified party uses all commercially reasonable efforts to mitigate its losses.

8.1.2        InfluxData’s Mitigation Rights. If any Subscription Services supplied by InfluxData 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.

8.1.3        Exclusions. Notwithstanding the foregoing, InfluxData will have no obligation, including under Section 5.1.4 and this Section 8.1, with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the InfluxData Technology or Subscription Services not in accordance with their applicable license rights, (ii) the combination of the InfluxData Technology or 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, (iii) InfluxData’s compliance with Customer’s specifications, configuration requirements, or other instructions (except to the extent that InfluxData knew that such compliance would infringe a third party’s Intellectual Property Rights), (iv) any use of any version of any InfluxData Technology other than the most current version made available to Customer after notice from InfluxData that Customer must upgrade to such release to avoid an infringement or misappropriation claim and Customer has had a reasonable time in which to implement such upgrade, (v) any modification of the InfluxData Technology or Subscription Services not made by InfluxData or at its express direction, (vi) any third party open source software, or (vii) any Customer Materials.

8.2            Customer’s Infringement Indemnification.

8.2.1 Defense and Indemnity. If any third party makes any claim against InfluxData that InfluxData’s use of any Customer Materials infringes any third party patent existing under the laws of the United States or Canada, or infringes or violates any third party copyright, trademark, service mark, privacy right or data protection right, or results from any misappropriation by Customer of such third party’s trade secrets or privacy rights (collectively, a “Customer Infringement”) then, upon notification of such claim, Customer will, at its sole cost and expense, defend InfluxData against such claim and any related proceeding brought by such third party against Customer, and Customer will indemnify InfluxData from and against all damages finally awarded against InfluxData or agreed to be paid by InfluxData in a written settlement approved in writing by Customer, and resulting from the Customer Infringement.  Customer’s obligations under this Section 8.2.1 are conditioned upon InfluxData’s compliance with the Indemnification Conditions.

8.2.2        Mitigation Rights. If provision of Customer Materials is, or in Customer’s reasonable opinion is likely to become, the subject of a claim of infringement or misappropriation of any intellectual property right of any third party, then Customer will have the right to: (i) procure the rights necessary for Customer to continue to provide Customer’s Materials; (ii) replace or modify the Customer Materials in a functionally equivalent manner so that they no longer infringe; or, if the options described in (i) and (ii) above are not available to Customer on commercially reasonable terms, (iii) terminate InfluxData’s rights to use the Customer Materials (in which case InfluxData’s obligations to perform the Services will be reduced to the extent that InfluxData required the Customer Materials to perform, and any such termination will be treated as a termination for convenience by Customer).

8.2.3        Exclusions. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Customer Materials not in accordance with their applicable license rights notified by Customer to InfluxData, (ii) combination of the Customer Materials with other products, equipment, software, services or data not supplied by Customer where the infringement would not have occurred but for such combination, but excluding combination with any InfluxData Technology, (iii) Customer’s compliance with InfluxData’s specifications or instructions, (iv) any use of any version of any Customer Materials other than the most current version made available to InfluxData after notice from Customer that InfluxData must upgrade to such release to avoid an infringement or misappropriation claim and InfluxData has had a reasonable time in which to implement such upgrade, (v) any modification of the Customer Materials not made by Customer or at its express direction, or (vi) any data processed by the Customer Materials that Customer has not provided, made available, or required InfluxData to use or access.

8.3            Personal Injury and Property Damage Indemnification. Each party (for purposes of this Section 8.3, the “Indemnifying Party”) will defend and indemnify the other party (for purposes of this Section 8.3, the “Indemnified Party”) from and against any and all claims, liabilities, damages, losses, judgments, costs or expenses for bodily injury, death, or damage to tangible personal property (excluding damages caused by software), to the extent resulting from the negligent act or omission of the Indemnifying Party or persons in its employ in connection with the performance of its obligations or enjoyment of its rights under the Terms of Use, or when entering, while on, or upon leaving the Indemnified Party’s property or worksite; provided, however, that the Indemnified Party complies with the Indemnification Conditions.

8.4            Improper Use of InfluxData Technology.  Customer will indemnify and hold InfluxData harmless from any claims, damages, losses, judgments, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any non-compliance with the Acceptable Use Policy for which Customer, Customer’s Users, or Customer’s Affiliates are responsible.

Section 9                  Limitations and Exclusions of Liability

9.1            Exclusion of Certain Claims. SUBJECT TO SECTION 9.3, 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 (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THESE TERMS OF USE OR SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OF USE OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.

9.2            Limitation of Liability. Subject to Section 9.3, neither party’s entire liability arising out of these Terms of Use 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.

9.3            Exceptions. Sections 9.1 and 9.2 do not apply to either party’s (i) willful misconduct or gross negligence, or (ii) infringement or misappropriation of any of the other’s Intellectual Property Rights. 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 these Terms of Use, will be deemed direct damages for purposes of this Section 9.  Section9.2 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 these Terms of Use, nor (iii) either party’s obligations under Section 6 (Confidential Information; Personal Information; Data Protection), provided, however, that except to the extent of willful misconduct or gross negligence of InfluxData, InfluxData’s liability under Section 6 will not exceed the fees paid by Customer to InfluxData under the affected Sales Order in the 12 month period immediately preceding InfluxData’s breach.

9.4            General. Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer or its Affiliates, or fail of their essential purpose and that without these limitations the fees for the Services would be significantly higher. Neither party may commence any action or proceeding under these Terms of Use more than two years after the occurrence of the applicable cause of action.

Section 10.              Dispute Resolution

10.1                           Governing Law. These Terms of Use will be governed by and interpreted in accordance with the internal laws of the State of California and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (i) conflicts of laws principles, and (ii) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods.

10.2         Disputes.  Any disputes arising under these Terms of Use will be referred to an appropriate senior manager of Customer and an appropriate senior manager in InfluxData who will, within 10 days of written notice of a dispute being served by one on the other, meet by telephone or videoconference in a good faith effort to resolve the dispute without recourse to legal proceedings.  Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof that cannot be resolved by the parties, will be finally settled by binding arbitration conducted in the English language in San Francisco, California, U.S.A. under the Commercial Arbitration Rules and the Optional Rules for Emergency Measures of Protection of the American Arbitration Association (“AAA”).  The arbitration will be heard by one arbitrator if the total amount in controversy is less than one million dollars ($1,000,000.00); otherwise the parties will jointly agree to three neutral arbitrators.  Provided, however, that if the parties cannot agree to one or more arbitrators, (or if one party refuses to appoint an arbitrator) within 30 days after the initiation of the arbitration, then such arbitrators will be appointed by the AAA.  Disputes about arbitration procedure will be resolved by the arbitrators, or failing agreement, by the AAA.  The arbitrator(s) may proceed to an award notwithstanding the failure of the either party to participate in the proceedings.  Discovery will be limited to mutual exchange of documents relevant to the dispute, controversy or claim; depositions will not be permitted unless agreed to by both parties.  The arbitrator(s) will be authorized to grant interim relief, including to prevent the destruction of materials or documents involved in the dispute, protect trade secrets and provide for security for a prospective monetary award.  The prevailing party will be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrators.  The award of the arbitrators will be the sole and exclusive remedy of the parties and will be enforceable in any court of competent jurisdiction, subject only to revocation on grounds of fraud or clear bias on the part of the arbitrator(s).  Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement.

Section 11.              Additional Terms of Service

The following additional terms and conditions (“Additional Terms of Service”) apply to Customer’s use of the Services, and are incorporated into these Terms of Use by this reference:

Section 12.              Modifications

InfluxData will provide Customer notice of any modifications to these Terms of Use or to an Additional Terms of Service applicable to Customer and affecting Services (a “Modification Notice”). As between Customer and InfluxData, Modification Notices for the Professional Services Terms will not become effective until completion of all Professional Services pending under then existing Sales Orders. If modifications materially and adversely affect Customer and, as a result, Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Service by providing InfluxData notice in accordance with these Terms of Use, subject to the following:

(i)              If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Term, then Customer may terminate Customer’s subscription for convenience prior to commencement of the Renewal Term, in accordance with Section 7.2 (Termination for Convenience).

(ii)             If the Modification Notice states that the modifications will become effective during the then current Subscription Term, then Customer may terminate Customer’s subscription to the affected Subscription Services at any time within the 30 day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (a) the date on which Customer delivers the termination notice, or (b) the date on which the applicable modifications become effective. If Customer terminates a Subscription Services subscription pursuant to this Section 13(ii), then Customer will be entitled to a pro-rata refund of any Subscription Services fees prepaid to InfluxData for the terminated Subscription Service for the unutilized portion of the Subscription Term (for clarification, Subscription Services fees do not include any activation fees, installation fees, Professional Service fees, or other expenses incurred in connection with the Services).

If Customer does not terminate the affected Service subscription as specified in this Section 12, then Customer will be bound by the modified terms beginning upon the date on which the Modification Notice states they become effective. References to these Terms of Use are to the Terms of Use (including Additional Terms of Use) as modified and updated from time to time.

Section 13.     Purchase Through Channel Partners

13.1.        Applicability. This section 13 only applies to Customers purchasing Services through an authorized Channel Partner. If Customer is uncertain as to the applicability of this section to its purchase of Services, Customer should contact InfluxData for further information.

13.2.        Channel Partners. If Customer acquired the Services from a Channel Partner, then these Terms of Use are not exclusive of any rights Customer obtains under the Channel Partner Sale Agreement; however, if there is any conflict between the provisions of these Terms of Use and the Channel Partner Sale Agreement, then the provisions of these Terms of Use prevail. If a Channel Partner has granted Customer any rights that InfluxData does not also directly grant to Customer in these Terms of Use, or that conflict with these Terms of Use, then Customer’s sole recourse with respect to such rights is against the Channel Partner.

13.3.        Subscriptions Through a Channel Partner. If Customer ordered the Services through a Channel Partner, then Sections 7.2-7.3 are inapplicable, and the Subscription Term will begin on the Sales Order Effective Date and, subject to the remainder of Section 7, it will expire, renew and terminate in accordance with the terms of the Channel Partner Sale Agreement.

13.4.        Purchases Through a Channel Partner. If Customer ordered the 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 Services fails to pay InfluxData any amounts due in connection with Customer’s use of the Services, then InfluxData may suspend Customer’s rights to use the Services, with or without notice to Customer. Customer agrees that Customer’s remedy in the event of such suspension is solely against the Channel Partner and that InfluxData is not liable to Customer in any manner for such suspension.

Section 14.              Miscellaneous Provisions.

14.1         Affiliates. These Terms of Use set forth the general terms and conditions under which InfluxData will provide Services to Customer and its Affiliates (defined below). Sales Orders may be entered into under these Terms of Use 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 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 these Terms of Use.

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. 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; and (b) Customer will be a reference account for InfluxData, provided, however, that InfluxData will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.

14.3         Compliance With Laws. InfluxData and Customer will comply with all applicable laws and regulations with respect to these Terms of Use, including U.S. export control laws. Neither party will have any liability to the other for any non-performance of their obligations under these Terms of Use 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 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.

14.4         Non-Solicitation of Personnel. During the provision of Services under these Terms of Use, and for a period of twelve (12) months thereafter, neither party (the “Relevant Party”) will, without the prior written consent of the other, directly or indirectly solicit, hire or employ any employee or individual independent contractor of the other party who has been involved in the provision of Services during the preceding year to become an employee or individual independent contractor of the Relevant Party. Nothing in this section will make a party liable for general solicitations in the media or on the World Wide Web.

14.5         U.S. Government Rights In The Services. InfluxData provides the Services for ultimate federal government end use solely in accordance with the following:  Government technical data and software rights related to the 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.

14.6         Equitable Relief. Each of Customer and InfluxData acknowledges that damages will be an inadequate remedy if the other violates the terms of these Terms of Use pertaining to protection of a party’s Intellectual Property Rights, Confidential Information or Personal Information. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to obtain 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 these Terms of Use.

14.7         Force Majeure. If the performance of these Terms of Use is adversely restricted or if either party is unable to conform to any warranty by reason of any circumstances beyond the reasonable control and without the fault or negligence of the party affected, then, except with respect to obligations to pay any fees or expenses,  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.

14.8         Service Enhancement Analysis. Unless otherwise specified in the applicable Sales Order InfluxData may use Customer’s usage history and statistics (collectively, “Enhancement Data”) for InfluxData’s internal analytical purposes, related to its provision of Services, including to improve and enhance the Subscription Services and the InfluxData Technology. InfluxData may make information derived from its analysis of Enhancement Data publically available, provided that the publicized information does not include any Enhancement Data that has not been aggregated and anonymized. For the purposes of these Terms of Use, aggregated and anonymized Enhancement Data means Enhancement Data that (i) has been aggregated with other data, and (ii) does not contain information that identifies Customer or its Users. For the sake of clarity, aggregated and anonymized data is not Confidential Information of Customer.

14.9         Captions and Headings. The captions and headings are inserted in these Terms of Use for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of these Terms of Use.

14.10       Severability; Invalidity. If any provision of these Terms of Use is held to be invalid, such invalidity will not render invalid the remainder of these Terms of Use or the remainder of which such invalid provision is a part. If any provision of these Terms of Use is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.

14.11       Waiver. No waiver of or with respect to any provision of these Terms of Use, nor consent by a party to the breach of or departure from any provision of these Terms of Use, 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.

14.12       Third Party Beneficiaries. Except as expressly set forth in these Terms of Use, no provisions of these Terms of Use 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. Notwithstanding the foregoing, InfluxData’s suppliers of products and services delivered hereunder will enjoy the same disclaimers of warranty, limitations on liability and similar exculpatory provisions with respect to such products and services as does InfluxData.

14.13       Assignment. Neither party may assign any of its rights or obligations under these Terms of Use 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 these Terms of Use 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. Subject to the foregoing restriction on assignment by Customer, these Terms of Use will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

14.14       Notices. InfluxData will provide Customer with notices that affect InfluxData’s customers generally (e.g., notice of an update made to the Services) by e-mail or by posting it on the InfluxData website or Site. InfluxData will provide Customer with any legal notices by first class mail 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 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. Notices that InfluxData sends electronically will be deemed received upon dispatch, and notices that InfluxData sends by first class mail will be deemed received within 3 days of dispatch, regardless of whether Customer actually receives the notice. Except as otherwise specified in these Terms of Use, all notices to be given to InfluxData under these Terms of Use must be in writing and sent to InfluxData’s headquarters by prepaid mail or overnight courier at the address then-specified on the InfluxData website; such notices will be deemed received upon delivery to InfluxData.

14.15       Entire Agreement; Amendments. These Terms of Use constitute and embody the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. These Terms of Use may not be modified or amended except by a written instrument executed by both parties, subject to Section 13 above. In the event of any conflict or inconsistency between the provisions of these Terms of Use and the terms of any form of purchase order or invoice, the provisions of these Terms of Use will prevail. Customer’s standard terms of purchase, if any, are inapplicable. In the event of any conflict between the terms of these Terms of Use and any Sales Order, the following order of precedence will apply, except to the extent expressly specified otherwise in the applicable Sales Order: (i) the Terms of Use, and (ii) the Sales Order.

14.16       Counterparts. Sales Orders and any amendments to these Terms of Use may be executed in one or more counterparts, which taken together will constitute a single agreement between the parties.