Layer Terms of Service
Last Updated: 7/30/2018
THESE TERMS OF SERVICE (“AGREEMENT”) GOVERNS THE ACQUISITION AND USE OF LAYER’S SERVICES BY THE ENTITY OR INDIVIDUAL (“CUSTOMER”) THAT REGISTERS TO USE THE LAYER SERVICES, THE LAYERCREATE PLATFORM AND/OR THE LAYER TOOLS (EACH AS DEFINED BELOW). IF CUSTOMER REGISTERS FOR A FREE TRIAL FOR THE LAYER SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. CUSTOMER INDICATES ITS ACCEPTANCE OF THIS AGREEMENT BY CLICKING A CHECK BOX OR BUTTON (THE “EFFECTIVE DATE”), OR BY ACCESSING THE LAYER SERVICES, THE LAYERCREATE PLATFORM AND/OR THE LAYER TOOLS. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER THAT IS A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE LAYER SERVICES.
ARTICLE I. DEFINITIONS
Section 1.1 Defined terms
a. “Conversation” means the Customer defined grouping, as determined by an assigned unique user identification (“UUID”) in the Layer Platform, of one or more Messages sent between one or more End Users during the Service Period.
b. “Conversation Design Kit” means the set of sketch files that contain design templates for Messages.
c. “Customer Data” means data or content contained in the Messages or data streams published by Customer or its users to the Layer Services.
d. “Customer Service” means the features, products, and services that Customer makes available on or through the Customer Products.
e. “Customer Products” means any websites, applications, or other portals accessible to End Users which are owned and operated by the Customer or at the direction of the Customer or under license from the Customer.
f. “Data transfer” means the total size of message payloads and metadata (measured in Gigabytes) delivered to users by the LayerCreate Platform during the Service Period.
g. “Data storage” means the total size of message payloads and metadata (measured in Gigabyte-months) stored within the LayerCreate Platform during the Service Period.
h. “End User” means any subscriber, person or entity that uses the Layer Services to access, use, interact with, view or otherwise consume a Customer Service.
i. “End User Data” means any data or information of any End User that is provided to or obtained by any Party in the performance of its obligations under this Agreement, including but not limited to, all lists of End Users, former End Users, and all information relating to and identified with such End Users.
j. “Fees” means the money in US Dollars that Customer is obligated to pay Layer for the provision of the Layer Services and any applicable Layer Tools., as set forth in the Order Form.
k. “Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
a. “LayerConnect” means Layer’s software development kit for developing interfaces for Customer’s sales and support personnel to service customers through the LayerCreate Platform. LayerConnect can be used to develop various implementation options for use with the LayerCreate Platform, including but not limited to, the custom routing of Messages, administration of saved responses, and the administration of access to viewing of information for the LayerCreate Platform.
l. “Layer Administration Portal” means the section of the Layer website to which access is restricted, allowing the Customer to configure account settings, access and view information about their use of the Layer Services.
m. “Layer Experience XDKs” means one (1) or more software development kits provided to Customer from time to time under this Agreement that enable the creation rich messages and interfaces for iOS, Android, and web systems using the LayerCreate Platform.
n. “Layer Proprietary Materials” means (i) Layer Services, LayerCreate Platform, and Layer Tools and Layer Services Documentation; (ii) ii) any content (other than the Messages or other content uploaded to or transmitted through the Layer Platform by Customer or an End User or any derivative works thereof thereof) embodied in or used in connection with the implementation, operation, maintenance, or hosting of the Layer Services; and (iii) all Intellectual Property Rights embodied therein and all derivative works, improvements, updates, modifications, or translations thereof.
o. “LayerCreate Platform” means Layer’s communications platform utilizing Layer’s APIs, webhooks, and other systems provided under this Agreement for the transmission of Messages and other data (in website, application, and other formats), used by Layer to provide the Layer Services, including any APIs to such platform.
p. “Layer Services” means Layer’s services provided under this Agreement for the transmission of Messages and other data (in website, application, and other formats) using the LayerCreate Platform in conjunction with Customer’s use of the Layer Tools as specified in this Agreement.
q. “Layer Tools” means collectively the Conversation Design Kit, Layer Connect and the Layer Experience XDKs.
r. “MAUTH” means a unique user that has connected to the LayerCreate Platform during the Service Period.
s. “Message” means data originating from or destined for delivery to a User participating in a stream of communication such as (but not limited to) a conversation, chat room or comment thread that is sent or received through the Layer Services.
t. Order Form(s)” means the form evidencing an order for the LayerCreate Platform, Layer Services and any applicable Layer Tools submitted online or in written or electronic form, specifying, among other things, the Effective Date, the applicable Fees, the billing period, and other charges, each such Order Form is automatically incorporated into and becomes a part of this Agreement.
u. “Seat License” means any user identity granted by Customer unique to an internal subscriber or person, that allows an End User to access, use, interact with, view or otherwise consume a Layer Service during a Service Period.
v. “Service Period” means a calendar month.
w. “Services Documentation” means collectively, written guides and guidelines that describe the Layer Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer by download or on Layer’s website including at https://docs.layer.com/sdk/ios/introduction, and that are intended for use in connection with the Layer Services.
x. “SLA” means the service level agreement located at layer.com/sla, as such may be updated from time to time; provided that any changes to the SLA during a Service Period will not materially diminish the service level support provided by Layer the term of the then-current Service Period.
y. “Support” means Layer’s technical support provided to Customer at the level set forth in the Order Form and as described in an Exhibit hereto or at https://support.layer.com/hc/en-us/articles/214430726-Support-Policy, as such may be updated from time to time and refers to Enterprise edition.
z. “Trademarks” means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
ARTICLE II. LICENSES
Section 2.1 License to LayerCreate Platform, LayerConnect, Layer Services, and Services Documentation
During the Term and subject to the terms of this Agreement, Layer grants to Customer and Customer accepts from Layer a non-exclusive, non-transferable limited license and right to access the LayerCreate Platform in order to use the Layer Services to transmit Messages. In addition, Layer grants to Customer and Customer accepts from Layer a non-exclusive, non-transferable, worldwide, royalty free license and right to use and access the Layer Tools listed on the applicable Order Form and to modify the editable components of such Layer Tools to (i) integrate Customer’s systems with the LayerCreate Platform and (ii) create and use interfaces for the Messages that Customer transmits through the LayerCreate Platform.
Section 2.2 Customer License to Layer
For the Term, Customer grants to Layer a non-exclusive, non-transferable, worldwide, royalty-free license to collect, analyze or use data relating to its delivery of the Layer Service derived from, or related to, the Customer Data, including the generation of reports for internal, external, and public use. Layer shall have a perpetual right to use and distribute data metrics about usage of the Layer Service only in aggregate, non-personally identifiable form that cannot be used to identify Customer and individual End Users. Customer grants to Layer a non-exclusive, worldwide, perpetual, irrevocable, sublicensable, royalty-free right and license to use and incorporate into the Layer Services, LayerCreate Platform or the Layer Tools any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Layer Services, the LayerCreate Platform or the Layer Tools.
Section 2.3 Customer Data.
Other than to the limited extent provided in ARTICLE II and ARTICLE III, Customer will have control over any and all Customer Data which Customer or End Users upload through the Customer Service. Customer hereby grants to Layer a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data in conjunction with the Layer Services. Additionally, Customer understands that the technical processing and transmission of the Layer Services, including any Customer Data provided by Customer, may involve (i) transmissions over various third party networks, and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.
Section 2.4 Use of Trademarks.
Each party shall strictly comply with all standards with respect to the other party’s marks which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more marks of the other party. All uses of the other party’s marks shall inure to the benefit of the party owning such mark. Notwithstanding the foregoing, Layer may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of Layer’s customers without Customer’s prior consent.
Section 2.5 Licenses Restrictions
Except as specifically provided in this Agreement, the license grants under this Agreement do not permit Customer (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the LayerCreate Platform or Layer Tools (with respect to components of the Layer Tools provided in object code only), or any portion thereof; (b) sublicense or distribute the LayerCreate Platform, Layer Tools, or Layer Services or rent, electronically distribute, timeshare, or market Layer Proprietary Materials by media or means of transmission, (c) access, use, or copy any portion of the LayerCreate Platform, Layer Tools, or Layer Services to directly or indirectly to develop, promote or support any product or service that is competitive with the Layer Services, LayerCreate Platform, or Layer Tools, (d) remove any identification, patent, trademark, copyright, or other notice from the LayerCreate Platform, Layer Tools, or Layer Services; (e) interfere with or disrupt the integrity or performance of the LayerCreate Platform, Layer Tools or Layer Services or third-party data contained therein; (f) attempt to gain unauthorized access to the LayerCreate Platform, Layer Tools, or Layer Services, including access to other Layer customer’s data; (g) disclose or publish, without Layer’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Layer Services, solely to the extent that such disclosure contains any Layer Confidential Information; (h) use the LayerCreate Platform, Layer Tools, and Layer Services including the transmission of Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any Layer Proprietary Materials for any purpose other than as specified in this Agreement; or (j) utilize Layer’s sandbox environment for commercial use, use in an app store or app marketplace, or in a manner that is noncompliant with the restrictions set forth by Layer as noted in the Layer Administration Portal.
Section 2.6 Reservation of Rights
Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, Layer shall retain all right, title and interest in and to the Layer Proprietary Materials and any derivatives, modifications or improvements of the foregoing; and, nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right.
ARTICLE III CERTAIN RIGHTS AND OBLIGATIONS OF LAYER
Section 3.1 CERTAIN RIGHTS AND OBLIGATIONS OF LAYER
a. Delivery of Layer Services. Subject to the terms and conditions of this Agreement, including the payment of all applicable Fees as set forth in Section 5 below, Layer shall provide to Customer the Layer Services in accordance with the SLA and the terms of this Agreement.
b. Suspension / Deactivation of an End User Account. Layer reserves the right, but not the obligation, to suspend or deactivate, or to require Customer to suspend or deactivate, an End User’s account and access to the Layer Services at any time for any reason, including the malicious use of the Layer Services, or use of the Layer Services to facilitate illegal activity. However, Layer will reasonably inform Customer about the reasons for such suspension or deactivation.
c. Suspension / Deactivation of Customer. Layer reserves the right to suspend or deactivate a Customer’s account and access to the Layer Services if continued operation of the Customer Service threatens the stability or performance of the Layer Services or LayerCreate Platform, or if the Customer Service is not implemented in accordance with the Services Documentation or uses the Layer Services to facilitate illegal activity. Circumstances that may threaten the stability or performance of the Layer Services or LayerCreate Platform include, without limitation, Customer’s use of a version of the Layer Tools or related APIs after the Deprecation Date (as defined below) and Customer’s failure to implement a Critical Release (as defined below) within ninety (90) days from the date that it is made available. Layer will reasonably inform Customer about the reasons for such suspension or deactivation.
d. Availability and Support. Subject to the terms and conditions of this Agreement and the SLA, Layer will use commercially reasonable efforts in an expeditious way to make the LayerCreate Platform and Layer Services available. Layer will provide Support to Customer at the level provided in the applicable Order Form. As part of Support, Layer will make available to Customer each update or new version of the Layer Tools and related APIs when they are generally released to customers of the Layer Platform. Layer will not be obligated to provide any support for a previous version of the Layer Tools or related APIs more than one (1) year after the release date of a new version of the Layer Tools and related APIs (the “Deprecation Date”). Layer has no obligation or responsibility under this Agreement or the SLA arising from problems related to Customer’s continued use of a version of the Layer Tools or related APIs after the applicable Deprecation Date. Additionally, Layer may make available to Customer updates to or new versions of the Layer Tools or related API that Layer designates as a critical release to address important security or performance issues (“Critical Release”). Layer does not warrant that Customer’s or End Users’ use of the Service will be error-free or uninterrupted.
e. Compliance: Layer shall comply with all applicable laws in the performance of its obligations hereunder.
ARTICLE IV CERTAIN RIGHTS AND OBLIGATIONS OF CUSTOMER
Section 4.1 CERTAIN RIGHTS AND OBLIGATIONS OF CUSTOMER
a. Customer’s Service Responsibility. Except for the express obligations of Layer set forth in this Agreement or in the applicable Order Form, Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of the Customer Service including but not limited to modification of interfaces, implementations using the Layer Tools, and/or development of custom Messages. Customer is solely responsible for all customer service issues relating to Customer Services, including functionality, warranty, and technical and End User support.
b. Customer’s LayerConnect Responsibility. Except for the express obligations of Layer set forth in this Agreement, Customer is solely responsible for all activities required by or otherwise related to Customer’s implementation of and integration with the LayerCreate Platform. In addition, Customer is solely responsible for all customer service issues relating to LayerConnect, including without limitation all uptime, functionality, or other technical issues relating to Customer’s implementation of the LayerCreate Platform using the Layer Tools and all End User support.
c. Compliance. Customer shall comply with all applicable laws use of the Layer Platform and with respect to Customer’s operation of the Customer Services.
d. Notification of End User Misconduct. Customer shall notify Layer regarding any End User that engages in (or that Customer believes has engaged in) activity with respect to the use of the Layer Platform that is illegal, fraudulent, malicious, or violates any rights of any third party or the terms of this Agreement. Customer shall promptly notify Layer if it becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Layer Services. Layer will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords.
e. Proper Implementation. Customer shall promptly fix any bugs in Customer Service or software that causes the Layer Services to be accessed in a way that is not consistent with the Services Documentation or is otherwise detrimental to the performance of the LayerCreate Platform, LayerConnect, or Layer Services. Customer will implement any Critical Release for the Layer Tools or the related APIs within ninety (90) days of the date that such Critical Release is made available to Customer.
f. Content Notices. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s or its End User’s content in connection with the LayerCreate Platform, LayerConnect, and Layer Services violates such party’s rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. Layer reserves the right to block any Customer Data and Customer account that violates the terms of Sections 2.4 and 4.1.
ARTICLE V FEES AND PAYMENT
Section 5.1 FEES
a. Layer Fees As consideration for its services under this Agreement, Customer shall pay to Layer the amounts set forth in an Order Form, and Customer shall pay to Layer any applicable Support fees as ordered by Customer in an Order Form. Customer agrees to pay the applicable fees including without limitation, any per Conversation fees, MAUTH fees, Data transfer and Data storage fees. There will be no refunds or credits for partial months of service, upgrades, downgrades or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer shall be responsible for payment of all such taxes (excluding taxes based on Layer’s net income), fees, duties and charges, interest, arising from the payment of such fees or the delivery or use of the Layer Services.
b. Upgrades Any increases in fees due to increased usage over the applicable usage tier in the applicable Order Form d will be as specified in the applicable Order Form will be handled as specified in the applicable Order Form or as otherwise mutually agreed upon by the parties in writing.
c. Payment Terms Payment for each Service Period shall be due in advance unless otherwise set forth in an Order Form.
d. Modification of Fees After the Initial Term, Layer reserves the right to modify the Layer Fees and other charges for subsequent Renewal Terms, upon notice to Customer no less than sixty (60) days prior to the beginning of such Renewal Term. In the event Customer rejects the Layer Fees following such notice, Customer may terminate the Agreement without cause.
e. Billing Correspondence Layer will send billing correspondence to the email address entered as billing contact by Customer in the Layer Administration Portal.
f. Payment Disputes In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to Layer stating the details of any such dispute and shall promptly pay any undisputed amount. Layer shall respond to such notice expeditiously within a maximum of (10) business days, where reasonably possible and will work with Customer to resolve the dispute. The acceptance by Layer of any partial payment shall not constitute a waiver of payment in full by Layer of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Layer in connection with the collection of any undisputed unpaid amounts due to Layer hereunder.
g. Timely Payment; Suspension of Service Any undisputed amount due to Layer under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded monthly from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Layer to suspend Customer access to the LayerCreate Platform, and the Layer Services without notice at Layer’s sole discretion.
ARTICLE VI WARRANTIES AND DISCLAIMERS
Section 6.1 Layer Warranties
a. Layer warrants it has full power and authority to enter into and perform the Layer Services as described in this Agreement.
b. With respect to Layer Services, Layer represents and warrants that the Layer Services and the LayerCreate Platform provided to Customer hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at Layer’s sole discretion or even otherwise; and Layer makes no warranty with respect to the Customer’s use of the Layer Tools.
c. The preceding warranties will not apply if: (i) any products, services, or deliverables provided by Layer hereunder are used in material variation with this Agreement or the Services Documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of Layer; or (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s equipment, software or third party software. Customer’s remedies for Layer’s failure to meet an SLA Obligation is described in the applicable SLA. The SLA and the preceding warranties do not apply to the extent that any issues are caused by Customer’s incorrect implementation of the LayerCreate Platform, through the use of the Layer Tools or otherwise.
d. In the event Customer discovers that the Layer Services provided by Layer hereunder, as applicable, are not in conformance with the representations and warranties set forth in Section 6.1 and reports such non-conformity to Layer, then notwithstanding anything to the contrary in the SLA, to the extent that such non-conformance is covered by the warranty obligations under this Section 6, Layer shall, (i) exercise commercially reasonable efforts to correct the non-conformity expeditiously at no additional charge to Customer, or (ii) refund Customer any prepaid fees covering the remainder of the then-current term dating from the Customer’s notice of such non-conformance.
Section 6.2 Customer Warranties
a. Customer represents and warrants that at all times during the term of this Agreement, Customer’s installation, configuration, and use of Layer Services shall (i) conform to specifications set forth in the applicable Services Documentation and (ii) comply with all license and use restrictions with respect to any third party software used by, or incorporated into, the Layer Services.
b. Customer hereby represents, warrants and covenants that prior to transmitting End User Data using the Layer Services and at all times thereafter, it will provide all necessary disclosures to End Users and obtain all necessary consents from each End User regarding the disclosures and uses of the End User Data by Layer and by Customer.
c. Customer further represents and warrants that, at all times while this Agreement is in effect, Customer shall maintain and adhere to all commercially reasonable security measures to protect Customer Service and the data contained therein from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws.
Section 6.3 Disclaimers
a. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
ARTICLE VII INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 7.1 Indemnification
a. Layer will defend at its expense Customer, its officers, directors and employees from and against any and all third party claims brought by an unaffiliated third party alleging (i) that the technology used to provide the LayerCreate Platform or LayerConnect when used in accordance with the terms of this Agreement (specifically excluding the Customer Service or Customer Products) violates or infringes such third party’s U.S. Intellectual Property Right and/or (ii) otherwise any breach of the law applicable to Layer’s performance of its obligations under this Agreement. If the LayerCreate Platform or the Layer Services, or any portion thereof becomes, or in the opinion of Layer may become, the subject of a covered claim, then Layer shall promptly use commercially reasonable efforts to (i) procure for Customer the right to use the LayerCreate Platform or LayerConnect free of any third party liability; or (ii) replace or modify the LayerCreate Platform or LayerConnect with non-infringing components with substantially similar functionality; or if (i) or (ii) are not practicable, (iii) terminate this Agreement upon notice to Customer and refund to Customer any prepaid unused fees for the affected Layer Services.
a. Customer will defend Layer, its officers, directors and employees from and against any and all claims by an unaffiliated third party directly or indirectly alleging that facts that, if true would (i) constitute a breach of Customer’s obligations in Section 4, or (ii) the violation or infringement by the Customer Service or the Customer Products of such third party’s United States Intellectual Property Right.
b. For any claims covered by either subclause (a) or (b) of this Section 7.1, the indemnifying party will pay those costs and damages payable by the indemnified party to an unaffiliated third party that are attributable to any such claim, provided that (i) the indemnified party notifies the indemnifying party in writing promptly after the indemnified party becomes aware of such claim (provided that the failure to so notify shall not affect the indemnified party’s rights to indemnification hereunder unless, and then only to the extent that, the indemnifying party has been actually prejudiced thereby); and, (ii) the indemnifying party has sole control of the settlement, compromise, negotiation, and defense of any such action (provided that the indemnifying party may not agree to any settlement that involves injunctive or equitable relief affecting the indemnified party or admission of liability by the indemnified party without obtaining the indemnified party’s prior written consent); and, (iii) the indemnified party cooperates, in good faith, in the defense of any such legal action.
c. Notwithstanding the foregoing, Layer shall have no indemnification obligations to Customers who are using any free, trial or beta versions of Layer’s Services.
Section 7.2 Limitation of Liability
a. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2.5, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
b. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2.5, ,NEITHER PARTY SHALL BE LIABLE FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO LAYER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
ARTICLE VIII TERM, TERMINATION, AND EFFECTS
Section 8.1 Term and Termination
a. This Agreement shall commence on the Effective Date. The initial term (“Initial Term”) of this Agreement shall be one (1) year beginning from the Effective Date unless otherwise specified in the applicable Order Form. Thereafter, this Agreement will automatically renew for additional terms of one (1) year (each, a “Renewal Term”) unless a Party provides the other Party with written notice of its intention not to renew this Agreement at least thirty (30) days prior to the end of the then-current term. The Initial Term, collectively with all Renewal Terms, is defined as the “Term”.
b. The Agreement may be terminated by either Party at any time (i) in the event of a material breach (being a single event or a series of events which are together a material breach) by the other Party either such breach is not capable of remedy or, if the breach is capable of remedy, but remains uncured after thirty (30) days written notice thereof, or (ii) in the event that the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within sixty (60) days.
c. Notwithstanding the foregoing, Layer reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice.
Section 8.2 Effects of Termination
a. Upon expiration or termination of this Agreement, all licenses granted to the Layer Services, the Layer Tools and the Services Documentation shall expire. Layer shall discontinue the provision of the Layer Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.
ARTICLE IX COPYRIGHT
Section 9.1 Copyright Infringement.
Layer is an online service provider under the Digital Millennium Copyright Act (the “DMCA”), and in that capacity Layer is entitled to delete or disable Content alleged by a copyright owner to be infringing, and to terminate the accounts of repeat alleged infringers.
ARTICLE X GENERAL TERMS
Section 10.1 Confidential Information
Definition. “Confidential Information” means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End User Data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information if: (i) it was already known to the Receiving Party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the Receiving Party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
a. Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the “Receiving Party”) hereby agrees (i) to hold the other Party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with confidentiality obligations, at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.
Section 10.2 Entire Agreement; Severability
This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. Layer may revise this Agreement from time to time, and will always post the most current version on our website. If a revision meaningfully reduces Customer’s rights, Layer will notify you (by, for example, sending a message to the email address associated with your account, posting on our blog or on this page). By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Agreement. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to Layer or use in connection with the procurement of Layer Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Layer to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the applicable Order Form, (2) this Agreement. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.
Section 10.3 Waivers
The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
Section 10.4 Compliance with Export Controls and OFAC Regulations
The LayerCreate Platform, LayerConnect, and Layer Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the LayerCreate Platform, or LayerConnect, or Layer Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the LayerCreate Platform, the Layer Tools or the Layer Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. The parties will not engage in activity that would cause the other Party to be violation of these laws and regulations.
Section 10.5 Relationship of the Parties
The Parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either Party the power to direct or control the activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title or interest of such other Party.
Section 10.6 Assignment
Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Layer may assign or transfer this Agreement or any rights or obligations hereunder without Customer’s consent to a third party acquirer of all, or substantially all, of the assets or business of Layer, whether by sale, merger, or otherwise without causing any disruption and/or delay in the continuity of the obligations contemplated under this Agreement. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.
Section 10.7 Force Majeure
Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than thirty (30) days, the Parties hereto shall consult with each other to determine and agree in good faith whether this Agreement should be modified or terminated. Should the Parties mutually agree in wording to terminate the Agreement due to such Force Majeure event, Layer will refund a pro-rata amount of any prepaid fees for the Services or and subscription to the LayerCreate Platform not provided for the full term, starting as of the first day of the occurrence of the Force Majeure event.
Section 10.8 Survival
Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property, limitation of liabilities, and indemnification shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.
Section 10.9 Governing Law; Arbitration
This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the “Arbitration Date”), shall be finally settled by arbitration in San Francisco, California, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive or other equitable relief without recourse to arbitration. For all purposes of this Section 10.10, the parties consent to exclusive jurisdiction and venue in the United States are the state or federal Courts located in the San Francisco County, California. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party. The application by either party to a judicial authority for such measures shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitrator.
Section 10.10 Counterparts
This Agreement may be executed and then delivered via facsimile transmission, via the sending of PDF or other copies thereof via email or digital signature service and in one or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same Agreement.
Section 10.11 Notices
Unless otherwise expressly set forth in this Agreement, any legal notice required under this Agreement shall be given in writing at the address set forth below, as may be amended in writing from time to time, and shall be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) Five (5) business days after deposit with a commercial overnight carrier; (iii) five (5) business days when mailed by ordinary mail; (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (v) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer and suspension-related notices to Customer shall be sent to the account holder designated in the Layer Administration Portal.