Welcome To Eventador!
Eventador Labs, Inc. is pleased to offer you access to eventador.io, through which we offers a real-time data streaming infrastructure service (the “Service”). As used in this document, the terms “Eventador,” “us,” or “we” refer to Eventador Labs, Inc., a Delaware corporation. The terms “Customer” or “you” refer to a user of the Service, whether an individual or an organization.
2. Our Agreement.
3. Access to the Service.
Subject to the terms and conditions of this Agreement, Eventador will provide you with access to the Service. You agree to cooperate with Eventador as may be reasonably required to enable the provision of the Service hereunder.
4. Representations About You.
You represent that you have the power and authority to enter into this Agreement on behalf of yourself or, if applicable, your organization. You also represent that (a) you have read and understand this Agreement, (b) you are 18 years of age or older, (c) the information that you provide to us about you or your account will be current, true, accurate, supportable and complete, (d) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (e) you are not listed on any U.S. Government list of prohibited or restricted parties. Additionally, if you are entering into this Agreement on behalf of your organization, you represent that you are the authorized agent of the organization and have the legal authority to enter into this Agreement on its behalf.
5. Free Trial.
If you register for a free trial, we will make the Service available free of charge until the end of the free trial period (“Trial Period”), or the start date of any paid subscription. This Agreement will apply to any Trial Period, provided that any terms related to support and payment of fees are not applicable. In addition to our disclaimers of warranty below, you agree that all use of the Service during the Trial Period is at your sole risk and any Eventador indemnity obligations contained herein shall not apply.
6. Authorized Users.
Customer may allow its employees, independent contractors or representatives to use the Service on behalf of Customer (“Authorized Users”). As a condition to such use, Authorized Users may be required to agree to abide by the terms set forth herein. Customer will be responsible for the security and confidentiality of the user names and passwords associated with each Authorized User account. Customer and Authorized Users shall immediately notify us in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement. Customer shall be liable for any breach of the Agreement by any Authorized User.
7. Reservation of Rights With Respect To The Service.
Eventador reserves all rights in and to the Service and all related intellectual property not expressly granted under this Agreement. Without limiting the generality of the foregoing, subject to the limited rights granted hereunder, you acknowledge and agree that, as between Customer and Eventador, all right, title and interest, including all copyright, trademark, patent, trade secret (including all modifications, improvements, upgrades, and derivative works thereof) and other intellectual property or proprietary rights, related to the Service belong exclusively to Eventador. Customer shall honor and comply with any and all contractual, statutory or common law rights of Eventador, as well as any applicable third parties, arising out of or relating to the provision or use of the Service. If Customer or any of its Authorized Users submit comments, suggestions, or other feedback regarding the Service (“Feedback”), you agree that Eventador will be free to use such Feedback for any purpose.
8. Restrictions On Use Of The Service.
Customer and its Authorized Users may internally use the Service and the data generated thereby solely for its intended purpose in accordance with this Agreement. Customer and its Authorized Users may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Service. Customer may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, or any part thereof or integrate the Service with other technology, other than as is expressly contemplated by our pertinent documentation. If for some reason these restrictions are prohibited by applicable law or by an agreement Eventador has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by (a) by trespass, (b) by burdening network capacity or consuming a disproportionate share of the resources on which the Service relies (e.g. compute time, disk storage, and network bandwidth), or (c) by utilizing the Service in a way that unnecessarily interferes with the normal operation thereof.
9. Limitations on Availability; Third Party Software.
The Service or some aspects thereof may not be available in all languages or in all countries. Eventador makes no representation that the Service is available or permitted in any particular location. Use of the Service is void where prohibited. Customer uses the Service at its own initiative and is responsible for compliance with any applicable laws. Eventador may also impose limits on the use or access to the Service as required by law. Customer acknowledges that (i) the Service may contain other software or components that are either owned by a third party or in the public domain, and (ii) Eventador has no proprietary interest in such software or components (collectively and each, the “Third Party Software”), and as such, cannot grant Customer a license to use such Third Party Software. A listing of such Third Party Software is made available to Customer in the documentation and/or in the THIRDPARTYSOFTWARE_README.txt file provided to Customer, and is available from Eventador upon written request. Customer’s rights in the Third Party Software are governed by and subject to the terms and conditions set forth in the applicable third party license(s) also set forth therein. Customer acknowledges and agrees to fully comply with such terms and conditions. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE THIRD PARTY LICENSE TO WHICH EVENTADOR MAY BE SUBJECT, THE DISCLAIMERS SET FORTH BELOW AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW SHALL APPLY TO EVENTADOR AND ITS LICENSORS WITH RESPECT TO SUCH THIRD PARTY SOFTWARE. UNLESS EXPRESSLY AGREED TO IN WRITING BY EVENTADOR UNDER A SEPARATE AGREEMENT, EVENTADOR IS NOT OBLIGATED TO PROVIDE SUPPORT FOR ANY SUCH THIRD PARTY SOFTWARE.
Customer and its Authorized Users may input or upload text, images, photos, videos, sounds, links, works of authorship, or other materials to the Service (collectively, “Content”). We do not claim ownership of your Content. By posting or sharing the Content, you grant to us only the limited rights that are reasonably necessary for us to provide the Service to you and your Authorized Users. You represent and warrant that: (a) you own your Content or otherwise have the right to grant the license set forth in this section, and (b) transmitting your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. Customer shall only collect, process, use, store, disclose and transfer Content and End User Data (defined below) in compliance with any applicable third-party terms, privacy policies or other terms between Customer and its Authorized Users and the applicable third parties. Customer acknowledges that Eventador does not have any control over the Content, including End User Data that passes through the Service. Eventador is not responsible for monitoring your Content, and collects such Content automatically under your direction when providing the Service to you and your Authorized Users. We may, but do not have any obligation to, remove any of the Content from the Service in our sole discretion, including if we determine that it may violate another person’s intellectual property rights, this Agreement, any applicable third party terms, or applicable law. Customer acknowledges that Eventador will have access to the Content as it is being transmitted via the Service. It is Customer’s sole responsibility to back-up its Content. Customer acknowledges and agrees that after termination of this Agreement, Customer may not have access to the Content via the Service.
11. Data Ownership.
Customer shall own all right, title, and interest in and to any data that is collected by Eventador from Customer or its Authorized Users in connection with their use of the Service (“Data”). Customer grants and agrees to grant to Eventador a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use such Data in order to provide the Service to Customer and its Authorized Users and as necessary to monitor and improve the Service. Additionally, you agree that Eventador may use the Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that Eventador collects or generates Blind Data, such Blind Data will be owned solely by Eventador and may be used for any lawful business purpose without a duty of accounting to Customer, provided that such data is not personally identifiable and does not identify the source of such data. It is Customer’s sole responsibility to back-up its Data during the Term and you agree and acknowledges that post termination or expiration in may not have access to the Data via the Service.
You acknowledge that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by Eventador (“Eventador Confidential Information”) constitutes valuable proprietary information and trade secrets of Eventador. Eventador acknowledges that the Data and Content provided to Eventador by Customer (“Customer Confidential Information”) constitutes valuable proprietary information and trade secrets of Customer. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
(a) “By Eventador. Eventador will defend any action brought against Customer to the extent that it is based upon a claim by a third party that the Service, used within the scope of this Agreement, infringes or misappropriates any third party intellectual property right, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against Customer or agreed by Eventador in a written settlement, provided that Customer (i) notifies Eventador in writing of the claim within ten (10) days after becoming aware of such claim; (ii) grants Eventador sole control of the defense and settlement of the claim; and (iii) provides Eventador with all assistance, information and authority required for the defense and settlement of the claim.
(b) Exclusions. Notwithstanding the terms of Subsection (a), Eventador will have no liability for any infringement claim of any kind to the extent it results from: (i) modification of the Service made other than by Eventador; (ii) unauthorized or unlicensed use of the Service; (iii) the combination, operation or use of any Service with equipment, devices or software not supplied by Eventador, to the extent such a claim would have been avoided if the Service was not used in such combination; (iv) failure of Customer to use updated or modified Service made available by to avoid infringement; (v) Third Party Software; (vi) the Kafka platform itself, to the extent reflected in the Service, or (vii) failure to mitigate damages.
(c) Rights Upon Infringement. If Customer’s use of the Service is, or in Eventador’s opinion is likely to be, enjoined due to the type of infringement specified in Subsection (a) above, Eventador may, at its sole option and expense: (i) procure for Customer the right to continue using such Service under the terms of this Agreement; (ii) replace or modify the Service so that it is non-infringing; or (ii) if options (i) and (ii) above cannot be accomplished despite Eventador’s reasonable efforts, then Eventador may terminate Customer’s rights and Eventador’s obligations hereunder and refund the pro-rated portion of any pre-paid fees attributable to any remaining portion of the Term.
(d) Sole Remedy. The provisions of this Section set forth Eventador’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to claims of infringement of any industrial or intellectual property rights of any kind.
(e) Customer Indemnity. Customer shall indemnify, defend, and hold Eventador harmless from and against all claims, damages and liabilities (including reasonable attorneys’ fees and including intellectual property infringement claims or products liability claims) that arise from the circumstances described in Section 11.(b)(i)-(iii) above.
14. Fees and Payment.
(a) Fees. Each subscription level includes monthly fees for the use of the Service (“Subscription Fees”). Subscription Fees, together with all other fees that may be payable pursuant to this Agreement (collectively, “Fees”), for each subscription level, are set forth on the Eventador pricing page, unless otherwise set forth in any quote or order form that may be entered into between Customer and Eventador. Eventador reserves the right to change the monthly Subscription Fees and other Fees at any time by updating the Fees listed on the Eventador pricing page and the updated Fees will be effective within 30 days.
(b) Payment. The Subscription Fees are payable each month, in advance, by credit card or such other electronic payment method as may be designated by Eventador from time to time (“Payment Method”). [Customer may also elect to prepay the Subscription Fees for an annual period in exchange for a prepayment discount.] In addition, if agreed to writing by the parties, Customer may pay via invoice. In such case, Eventador will issue an invoice for the full payment amount corresponding to the billing period as indicated on the invoice and, unless otherwise specified, Customer shall pay within 30 days of the invoice date. All Fees are due and payable in U.S. dollars, non-refundable and are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes directly or to us, as required by applicable law. If applicable, Customer authorizes Eventador to charge the Payment Method on file with User’s account for all Fees. If payment is not made on the respective due date, Eventador may charge Customer a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law. Any past due Fees will be sent to collections. If our collection efforts fail, unpaid debts will be reported to all available credit reporting agencies.
15. Support and Maintenance.
Eventador will offer technical support regarding use of the Service Monday through Friday, 9am – 5pm Central time, excluding holidays (list of holidays will be provided upon request) via the phone number and email address listed under the support section of Eventador.com. Eventador will also provide you with access, during the Term to any applicable user forums. During scheduled system maintenance, the Service may be unavailable. Emergency maintenance may be required in the event of system failure. We make no guarantees about Service uptime.
16. Term and Termination.
This Agreement will commence on the Effective Date and will remain in effect unless terminated earlier in accordance herewith. In the event that a party is in material breach of the terms of this Agreement and does not cure such breach within thirty (30) days following notice thereof, then the other party may immediately terminate the same by sending written notice to the breaching party. In addition, Customer may cancel its subscription and this Agreement at any time by providing 30 days prior written notice. If Customer received an annual prepayment discount and cancels prior to the expiration of the current term, Customer will pay the difference between the amount originally paid minus the current monthly Fees for the Service for each remaining month. The following provisions will survive any termination of this Agreement: Section 7-12, 14 (as to amounts owed as of termination), 17-18 and 20-30.
17. Collection and Use of Your Information.
18. Disclaimers and Limitations of Liability.
This section is important – please read it carefully. It limits Eventador’s liability (and the liability of its affiliates) to you. These disclaimers and limitations apply only to the extent permitted by applicable law. Some jurisdictions do not allow disclaimers of implied warranties or limitations of liability, so this Section may not apply to you.
(a) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED ABOVE, THE SERVICE, ANY DOCUMENTATION, ANY SUPPORT OR OTHER SERVICES, AND ANY OTHER MATERIALS HERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM, ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY.
(b) Limitation of Liability. NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO THE SERVICE, INCLUDING WITHOUT LIMITATION LOST PROFITS AND THE COST OF COVER. NEITHER WE NOR OUR AFFILIATES WILL HAVE liability to YOU for damages IN EXCESS OF THE GREATER OF: (i) U.S. $50.00, OR (ii) THE AMOUNT YOU PAID to us FOR YOUR SUBSCRIPTION, IF ANY, IN THE 12 MONTHS PRIOR TO THE CLAIM. The ABOVE limitations apply even if the above stated remedy fails of its essential purpose.
(c) Acknowledgements and Agreements Regarding Kafka and Related Risks. CUSTOMER ACKNOWLEDGES THAT THE SERVICE AND THE INTENDED USE THEREOF INHERENTLY DEPENDS ON THE CONTINUING AVAILABILITY OF THE APACHE KAFKA PLATFORM (“Kafka”), THAT THIS IS A MATTER BEYOND EVENTADOR’S CONTROL, AND THAT IF APACHE CEASES TO MAKE KAFKA AVAILABLE ON REASONABLE TERMS OR MATERIALLY CHANGES THE PLATFORM, THE SERVICE MAY NOT FUNCTION AS INTENDED, OR AT ALL. CUSTOMER ACCEPTS ALL RISK ASSOCIATED WITH SUCH DEPENDENCE. CUSTOMER AGREES AND ACKNOWLEDGES THAT ITS OBLIGATIONS HEREUNDER, INCLUDING PAYMENT OBLIGATIONS, ARE NOT CONTINGENT ON THE ONGOING AVAILABILITY OF KAFKA, AND AGREES AND AKNOWLEDGES THAT IT WILL NOT BE ENTITLED TO A REFUND OF ANY PREPAID FEES IN THE EVENT OF ANY CESSATION OF FUNCTIONALITY RELATED TO KAFKA.
CUSTOMER FURTHER ACKNOWLEDGES THAT IT IS SUBJECT TO COMPLIANCE WITH THE APPLICABLE APACHE LICENSE WITH RESPECT TO ACCESS AND USE OF KAFKA AND HEREBY AGREES TO COMPLY THEREWITH IN ITS USE OF THE SERVICE.
19. Consent to Receive Commercial E-mail.
We may need to communicate with you about the Service, and we would like to make certain commercial offers available to you from time to time. AS SUCH, YOU CONSENT TO RECEIVE COMMERCIAL MESSAGES (WHETHER BY PHONE, EMAIL, TEXT OR PUSH NOTIFICATIONS) FROM US OR OUR THIRD PARTY PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY PHONE NUMBERS AND EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED FOR THE PURPOSE OF INITIATING COMMERCIAL MESSAGES. We will allow you to opt out of receiving some of these messages, but in order to stop receiving any messages from us whatsoever (including administrative messages regarding the Service), you will need to terminate your account.
20. Export and Other Restrictions.
You may not use or otherwise export or re-export the Service or elements of it, except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed or obtained. You also agree that you will not use the Service for any purposes prohibited by applicable law. The Service and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
We may change the terms of this Agreement from time to time. Any change will take effect when we notify Customer of the change (either through an email notice or a message delivered through the Service) and Customer accepts the change (via email or an electronic click-to-accept method).
22. Governing Law and Arbitration. The Agreement will be governed by and construed in accordance with the laws of the State of Texas applicable to agreements entered into, and to be performed entirely, within Texas between Texas residents. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) the arbitration will be conducted by a single arbitrator, (b) the fees of the arbitrator shall be equally borne (50/50) by the parties, and (c) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties. The arbitrator shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Each party may seek injunctive relief in any court of competent jurisdiction. You and Eventador agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis.
23. Relationship of Parties.
The Parties to the Agreement are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
24. Equitable Relief.
The Parties agree that a material breach of the license, restrictions, or confidentiality provisions of the Agreement would cause irreparable injury to Eventador for which monetary damages would not be an adequate remedy, and therefore Eventador shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
25. Force Majeure.
Neither Party shall be deemed to have breached any provision of the Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such Party’s control.
26. Government Use.
The use, duplication, reproduction, release, modification, disclosure, or transfer (“use”) of the Service and any documentation, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Service and any documentation was developed at Eventador’s private expense and is commercial in nature. By using, receiving, or downloading the Service and any documentation, the Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
Customer may not assign this Agreement, in whole or in part, without Eventador’s prior written consent. Eventador may assign the Agreement in its discretion. Any purported assignment in violation of this section shall be null and void. The Agreement shall be binding on all permitted assignees.
The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.
The failure of either Party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other Party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by either Party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
30. Entire Agreement.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter contemplated herein, and supersedes any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of the Agreement shall be binding unless in writing and signed by duly authorized representatives of the Parties hereto or unless Customer acceptances a subsequent click-to-accept agreement delivered by Eventador.