Last modified: August 19, 2021
If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms. In that case, the terms "Customer", "you" or "your" shall also refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you may not use the Service. Registration for use of the Service by "robots" or other automated methods is expressly prohibited.
For purposes of these Terms, the following terms shall have the following meanings:
1.1 "Affiliate" means a company controlling, controlled by, or under common control with a party (an entity will be deemed to have control if it owns over 50% of another entity).
1.2. "Authorized Users" means employees or contractors, authorized by Customer to use the Service solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of these Terms.
1.3. "Documentation" means the user guides, security fundamentals documentation, and specifications for the Service that are made available from time to time by Checkly in electronic or tangible form, but excluding any sales or marketing materials.
1.4. "Effective Date" means the date a Service commences as listed on the Order.
1.5. "Order" means Checkly's quote accepted by Customer via an ordering document submitted to Checkly or via subscription on the Site, to order the Service, which references the ordered software-as-a-service products, pricing, payment terms, Service parameters, term of Service and other terms as applicable.
1.6. "Service" means the software-as-a-service products specified in the Order as further described in the Documentation (including any updates and upgrades to the Service provided by Checkly in its sole discretion).
1.7. "Site" means the Website accessible at https://checklyhq.com (or any successor thereto).
1.8. "Subscription Term" means the period of time during which Customer is subscribed to the Service, as specified in an Order.
1.9. "Usage Data" means statistical data related to Customer's access to and use of the Service and data derived from it, that is used by Checkly in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Service.
2.1. Access. Subject to payment of all applicable fees set forth in the Order and these Terms, Checkly grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the Service solely for Customer's and its Affiliates' internal business purposes in accordance with the Documentation and in accordance with the parameters specified in the applicable Order.
2.2. Authorized Users. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the Service, (ii) that such Authorized Users have been trained in proper use of the Service, and (iii) confidentiality and proper usage of passwords and access procedures with respect to logging into the Service. Customer shall be responsible for the acts and omissions of its Authorized Users.
2.3. Changes to Service. Checkly reserves the right to modify or discontinue any part of the Service at any time, provided that in the event such modification or discontinuance materially reduces the functionality of the Service, Customer may terminate this agreement by written notice to Checkly, and Checkly shall provide Customer with a pro-rated refund of any pre-paid fees for Service not performed by the effective date of termination.
2.4. Service Availability. Checkly will use commercially reasonable efforts to maintain the Service availability, subject to downtimes resulting from maintenance, repairs and upgrades. Checkly will attempt to notify Customer electronically via the Service in advance of any planned downtime.
2.5. Service Support. Checkly will provide Customer with support for Customer's use of the Service in accordance with Checkly's then applicable support policy as described on the Site under [insert link], or as otherwise specified on the Order. Customer agrees that Checkly is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer's systems or hardware or Customer Content (as defined below).
2.6. Content. As used herein, the term "Content" includes information, data, text, images, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through, or used with, the Service. All Content submitted to the Service by Customer ("Customer Content") is the sole responsibility of Customer. Customer acknowledges and agrees that Checkly will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications thereto. Customer hereby grants Checkly a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Service to Customer hereunder.
2.7. Use Restrictions. Except as expressly permitted in these Terms, Customer shall not directly or indirectly: (i) remove any notice of proprietary rights from the Service; (ii) decompile, reverse engineer, or attempt to derive the source code or underlying ideas or algorithms of any part of the Service (except to the limited extent applicable laws specifically prohibit such restriction); (iii) copy, modify, translate or otherwise create derivative works of any part of the Service; (iv) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available any of the Service to or for the benefit of any third party; (v) use the Service to violate any laws or infringe on the intellectual property rights, publicity rights, or privacy rights of any third party, or to store defamatory, trade libelous, or otherwise unlawful data; (vi) send, store or process in the Service any personal health data, credit card data, personal financial data or other such sensitive or personal data; (vii) use any of Checkly's Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Service, (viii) use or allow the transmission, transfer, export, re-export or other transfer of any technology, material or information it obtains or learns pursuant to these Terms (or any direct product thereof) in violation of any export control or other laws and regulations of any relevant jurisdiction, (ix) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service, or modify another website so as to falsely imply that it is associated with the Service; or (x) permit any third party to engage in any of the foregoing proscribed acts (with subclauses (i) through (x) hereof, collectively, referred to as the "Use Restrictions").
3. PROPRIETARY RIGHTS
3.1. Ownership. Subject to the rights and licenses expressly granted hereunder, as between the parties, Customer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Customer Content. Subject to the limited rights and licenses expressly granted hereunder, as between the parties, Checkly shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Service, including all software, technology and other materials associated therewith, all Documentation and Content (excluding the Customer Content), all Checkly trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein.
3.2. Feedback. To the extent Customer provides or otherwise makes available to Checkly any feedback, suggestions, recommendations, data, or other input regarding the Service or resulting from Customer's use thereof ("Feedback"), Customer hereby grants to Checkly a perpetual, irrevocable, royalty-free right and license to use such Feedback for any purpose, including to improve and enhance the Service or any component thereof, to develop new features or functionality, and to otherwise use and exploit such Feedback for Checkly's business purposes. Customer acknowledges that any Checkly products or materials incorporating any such Feedback shall be the sole and exclusive property of Checkly.
3.3. Usage Data. Customer hereby grants to Checkly and its Affiliates an irrevocable, perpetual, world-wide, paid-up, royalty-free license to use the Usage Data, including all intellectual property rights relating thereto. Any Usage Data distributed to third parties by Checkly will be in aggregate form only and will not identify Customer or its Authorized Users.
4.1. Definition. For purposes hereof, "Confidential Information" means all nonpublic information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as "confidential" or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Customer's Confidential Information shall consist of the Customer Content. Checkly's Confidential Information includes: (i) any nonpublic information relating to the Service or the software or technology underlying the Service, or relating to any other of Checkly or its Affiliates' or business partners' products or services (including any beta version of a service), software, technology, customers, business plans, and other business affairs; (ii) any Content (other than Customer Content); and (iii) third-party information that Checkly is obligated to keep confidential. Notwithstanding the foregoing, "Confidential Information" does not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3) is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party.
4.2. Confidentiality. Except for the specific rights granted by these Terms, the Receiving Party shall not access, use or disclose any of the Disclosing Party's Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the Disclosing Party's Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of these Terms and (b) have been apprised of and are subject to restrictions at least as protective of the Disclosing Party's Confidential Information as these Terms. Each party shall be responsible for any breach of confidentiality by its employees and contractors.
4.3. Required Disclosure. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order.
5.1. As between Checkly and Customer, Customer is solely responsible for (i) ensuring Customer has a valid legal basis for sharing Customer Content with Checkly (to the extent required), and (ii) ensuring that the Customer Content as made available by Customer complies with applicable laws and regulations including (where applicable) the EU General Data Protection Regulation (2016/679) ("GDPR"), any applicable laws of EU member states implementing the GDPR, and the California Consumer Privacy Act, in each case as amended (collectively, "Privacy Laws").
5.2. The Parties shall comply with their respective obligations under the Privacy Laws. In particular, if Customer is established in the European Economic Area ("EEA"), in the United Kingdom ("UK") or in California, or will, in connection with the Service, provide Checkly with personal data relating to an individual located within the EEA, the UK or California, the Parties shall comply with the Data Processing Addendum located at https://www.checklyhq.com/privacy which in such case is hereby incorporated into these Terms.
5.3. Checkly shall (i) ensure that is has in place reasonably appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Content against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; and (ii) access and use the Customer Content solely to perform its obligations in accordance with the terms of these Terms, and as otherwise expressly permitted in these Terms.
6. PAYMENTS; TAXES
6.1. Fees. Customer shall pay to Checkly fees as set forth in an applicable Order in accordance with the terms thereof. Any amounts arising in relation to these Terms not paid when due will be subject to a late charge of one and one-half percent (1 1/2 %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. In addition, if Checkly does not receive payment for fees by the due date therefor, Customer's account shall be considered past due and Checkly shall have the right to suspend the Service until payment is made, or terminate the Service with respect to the applicable Order, in accordance with these Terms. Also, in the event any payment is past due, in addition to the amount owed, Customer shall be responsible for all judicial and extrajudicial collection costs, including costs for lawyers, bailiffs and collection agencies. Without prejudice to Customer's rights set out elsewhere in these Terms, all Service fees are non-refundable and payable in advance unless otherwise set forth in the Order. Checkly may change its fees for the Service at any time and from time to time upon thirty (30) days prior written notice, which may be given by publication on the Site.
6.2. Taxes. The fees for the Service are exclusive of any excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes, duties or tariffs (however designated, levied or based and whether foreign or domestic) imposed or levied, currently or in the future, on the Service. Customer will be liable for payment of such taxes. If Customer is required under applicable law to make any tax withholding from fees, payment by the Customer will be grossed up with an additional amount to cover such withholding as may be necessary in order to ensure that the net amount received by Checkly is equal to the total amount that Checkly would have received if such withholding had not been applied.
7. LIMITED WARRANTY AND DISCLAIMERS
7.1. General. Each party represents and warrants that: (a) it has full power and authority to enter into these Terms and to perform its obligations hereunder; (b) these Terms are legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of these Terms does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound.
7.2. Customer. Customer represents and warrants that (a) Customer has all rights to grant the licenses to Checkly set forth herein, including to Customer Content, without infringement or violation of any applicable laws or third party rights, including any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Customer shall not make available through the Service any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.
7.3. EXCEPT AS PROVIDED IN SECTION 7.1 HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, CHECKLY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THE SERVICE'S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CHECKLY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE IN THE SERVICE RESULTING FROM OR ATTRIBUTABLE TO (A) CUSTOMER USE OF THE SERVICE NOT IN ACCORDANCE WITH THESE TERMS OR ANY DOCUMENTATION, (B) FAILURES IN ANY TELECOMMUNICATIONS, NETWORK OR OTHER SERVICE OR EQUIPMENT OUTSIDE OF CHECKLY'S FACILITIES, (C) CUSTOMER'S OR ANY THIRD PARTY'S CONTENT, PRODUCTS, SERVICES, NEGLIGENCE, ACTS OR OMISSIONS, (D) ANY FORCE MAJEURE OR OTHER CAUSE BEYOND CHECKLY'S REASONABLE CONTROL, OR (E) UNAUTHORIZED ACCESS, BREACH OF FIREWALLS OR OTHER HACKING BY THIRD PARTIES.
Customer shall defend, indemnify and hold harmless Checkly, its Affiliates, and its and their respective directors, officers, managers, employees, customers, agents, successors and assigns from and against any damages, liabilities, losses, and costs, including reasonable attorney's fees, arising from or relating to any third party claim based on: (i) any allegation that Customer Content or Checkly's use thereof, infringes or misappropriates a third party's patent, copyright, trademark or trade secret, or violates another right of a third party; or (ii) Customer's use of the Service.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S OBLIGATIONS UNDER THE "PAYMENTS" SECTION ABOVE, OR CUSTOMER'S LIABILITY FOR BREACH OF CHECKLY'S PROPRIETARY RIGHTS HEREUNDER.
9.2. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER THE ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION WILL NOT APPLY TO AMOUNTS PAYABLE PURSUANT TO CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER OR TO DAMAGES ARISING OUT OF CUSTOMER'S BREACH OF CHECKLY'S PROPRIETARY RIGHTS HEREUNDER.
10. TERM AND TERMINATION
10.1. Term. These Terms will be effective upon the Effective Date and shall remain in force during the applicable Subscription Term of the Service or unless or until terminated by either party pursuant to these Terms.
10.2. Termination. These Terms may be terminated by either party if the other party materially breaches a provision of these Terms (other than the Use Restrictions) and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case of non-payment). These Terms may be terminated by either party immediately upon written notice to the other party if: the other party: (a) becomes insolvent, (b) voluntarily commences any proceeding or files any petition under applicable bankruptcy laws, (c) becomes subject to any involuntary bankruptcy or insolvency proceedings under applicable laws, which proceedings are not dismissed within thirty (30) days, (d) makes an assignment for the benefit of its creditors, or (e) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business. Checkly may terminate these Terms immediately with or without notice if Customer violates any of the Use Restrictions. In addition, Checkly may terminate these Terms, in whole or in part, or cease provision of Service if required to comply with applicable law or regulation.
10.3. Effects of Termination. Upon termination or expiration of these Terms: (i) Customer will have no further right to access or use the Service; and (ii) any Customer Content contained on the Service may be deleted by Checkly. Customer acknowledges that it is responsible for exporting any Customer Content to which Customer desires continued access after termination/expiration, and Checkly shall have no liability for any failure of Customer to retrieve such Customer Content and no obligation to store or retain any such Customer Content after termination or expiration. Following termination of the Service, Checkly may immediately deactivate Customer's account. Any accrued rights and obligations will survive termination.
11. GENERAL PROVISIONS
11.1. Entire Agreement. These Terms constitute the entire agreement, and supersede all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof. When used in these Terms, the term "including" or "includes" means "including but not limited to".
11.2. Publicity. Customer hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Checkly's marketing and promotional efforts.
11.4. Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
11.5. Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York, U.S.A., without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to these Terms will be the courts located in New York, New York, and both parties consent to the jurisdiction of such courts with respect to any such actions. To the extent not prohibited by law, each of the parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to these Terms.
11.6. Remedies. Except as specifically provided otherwise herein, each right and remedy in these Terms is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of a party's confidentiality obligations or proprietary rights hereunder, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.7. Notices. All notices under these Terms will be in writing and delivered to the parties at: in the case of Checkly, its address as stated in the first paragraph hereof and, in the case of Customer, its address as set forth on the Order, or at such other address designated by a party to the other by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.8. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without Checkly's written consent. Checkly may freely assign this Agreement and its rights and obligations hereunder, or may delegate or subcontract to third parties any of its duties and obligations hereunder, without the need for the consent of Customer. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
11.9. Independent Contractors. The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.