Terms Of Service
EFFECTIVE DATE OF TERMS OF SERVICE: March 12, 2019
Please read these “Terms of Service“ fully and carefully before using any of the services or features (defined below) or applications made available by Hazelcast Inc. and its affiliates, (“Hazelcast”, “we“, “us“ or “our“), including the self-service, managed and hosted version of Hazelcast’s In-Memory Data Grid (the “Services“). The Services includes any updates, upgrades, versions or add-ons supplied by us.
For clarity, these Terms of Service do not apply to any other versions of the Hazelcast on-premises software or other services, unless expressly stated by Hazelcast.
These Terms of Service set forth the legally binding terms and conditions for your use of the Services. By clicking on the “Accept,” “sign up free,“ “upgrade your plan,“ or equivalent access, agreement or purchasing button, you or the company or entity that you represent (“you,“ “your,“ “yours“ or “customer“) are consenting to be bound by and are becoming a party to these Terms of Service.
You are also representing and warranting that the individual clicking on the button is authorized to enter into this agreement and bind such entity. Your continued use of any portion of the services shall also constitute assent to the terms of these Terms of Service. If you are using the services on behalf of a company or other entity, then all references to “you“ or “your“ herein shall refer to both the individual and the entity.
If you do not unconditionally agree to all of the terms of these Terms of Service, you will have no right to use the Services (and you should immediately cease all such use). If these terms are considered an offer, acceptance is expressly limited to these terms to the exclusion of all other terms. If you do not agree to these terms, please cancel your subscription.
- Acceptance of Terms of Service.
- By registering for and/or using the Services in any manner, you agree to these Terms of Service, and all other operating rules, policies, and procedures that we may publish from time-to-time through the Services, each of which is incorporated by reference, and each of which may be updated from time-to-time without notice to you.
- The Services may be subject to additional terms and conditions specified by us from time-to-time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- If you have executed a separate written agreement with Hazelcast regarding your use of other services or software subscriptions, then that agreement, and not these Terms of Service, applies to those services. For example, if you purchased a subscription to use Hazelcast IMDG Enterprise software under the Hazelcast Enterprise License and Support Services Subscription Agreement, then your use will remain covered by such terms, available here.
- Arbitration notice and class action waiver: Except for certain types of disputes described in the arbitration section below (Section 14), you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
- Eligibility. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, register for an Account (defined below) or use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service and your use of the Services (a) are in compliance with all laws, rules and regulations applicable to you and (b) does not violate any other agreement to which you are a party. The right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third-party.
- Registration. To sign-up for the Services, you must register for an account on the Services (an “Account“). You must provide accurate and complete information for your Account. For Services subscriptions sold on any quantitative metric, access or use will be limited to that metric. Each Account shall only be used by the individual user that registered such Account. You may never use another person’s user Account without permission from Hazelcast or share your Account or access credentials with any other individual or entity. You should never publish, distribute, or post login information for your Account. You are responsible for maintaining the security of your Account, including passwords. You shall be responsible for acts, omissions, or breaches hereunder by any other individuals using your Account or credentials for the Services. You must keep your Account information updated, and you must notify us immediately of any change in your eligibility to use the Services or breach of security or unauthorized use of your Account.
Notwithstanding the other provisions in these Terms of Services, please note that if you are a user of an Account purchased by your employer or another person or entity, then these Terms of Service allow such person or entity to provision additional services, or to change or limit your access to the Services at any time. It is up to such person or entity to inform you of any particular rules, requirements or limitations regarding your use beyond those set forth in these Terms of Service. You agree to look solely to such person or entity regarding any dispute relating to such additional rules, requirements, or limitations.
Hazelcast reserves the right to suspend or delete any Account that has been inactive for six (6) months or more. If Hazelcast so terminates your Account, it will send you notice to your last know contact email address.
- The Services
- Services. Subject to these Terms of Service, Hazelcast will use commercially reasonable efforts to make the Services available to you.
- License. Subject to these Terms of Service, Hazelcast grants to you a limited, worldwide, non-exclusive, non-sublicensable, and non-transferable license to use the Services solely for your internal business use.
- Restrictions on Use of the Services. You will not directly or indirectly:
- sell, license, sublicense, distribute, copy, rent, or lease the Services, or include the Services in a service bureau, time-share outsourcing offering, or otherwise make the Services available to, or use the Services for the benefit of, any third party such as your customers, or transfer any of the rights that you receive hereunder;
- interfere with or disrupt the integrity or performance of the Services or any third-party data contained in the Services or attempt to gain unauthorized access to the Services or its related systems or networks;
- copy, modify, translate, or create derivative works based on the Services or any underlying software or any part, feature, function, or user interface thereof, including by framing (except as expressly allowed by Hazelcast) or mirroring any part of any Services;
- access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service;
- decompile, disassemble, decipher, or reverse engineer the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, (except to the extent such restriction is prohibited by applicable statutory law);
- remove any copyright notices, information, and restrictions contained in the Services;
- bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services) or take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third-party providers’) infrastructure;
- use manual or automated software, devices, or other processes to “crawl“ or “spider“ any page of the Services; or
- otherwise take any action in violation of our guidelines and policies, including these Terms of Service.
- Availability. We are not and will not be responsible or liable for any failure in the Services resulting from or attributable to (i) Customer Data or any failures to deliver Customer Data to Hazelcast; (ii) failures in any telecommunications, network or other service or equipment outside of Hazelcast’s facilities; or (iii) any force majeure or other cause beyond Hazelcast’s reasonable control. We do not guarantee that the Services will be available.
- Limits. We may impose certain limits on the use of the Services, including usage limits for different Services plans, including without limitation the amount of Customer Data that may be stored, features that may be accessed or other rate or usage limitations at any time in our sole discretion.
- Proprietary Rights. As between the parties, all right, title and interest in and to the Services, and all copies, modifications and derivative works thereof is and will remain the sole and exclusive property of Hazelcast. Except as expressly set forth herein, no license or other right, title or interest in the Services is granted by Hazelcast to you.
- Free Tier Restrictions. Hazelcast Cloud has a free option limited to 200MB per cluster. It is subject to the following restrictions:
- Not for production use.
- excessive usage - should a free cluster be excessively used it can be terminated.
- excesssive number of free clusters - should an excessive number of clusters be craeated, they can be terminated
- clusters that are unused for 16 hours or more, will be stopped.
- repreated excessive use can result in your account being suspended.
- Customer Data.
- Definition. “Customer Data“ means any and all electronic data and information uploaded or submitted to the Services by you or by a third party on your behalf. You retain all of your rights to your Customer Data.
- License to Customer Data. You hereby grant Hazelcast a non-exclusive, worldwide, royalty-free, fully paid-up right and license to use, copy, access, process, reproduce, modify, distribute, and transmit your Customer Data in connection with the Services. You acknowledge and agree that (i) the quality of the Services depend on the uploading or other provisioning of the Customer Data into the Services, as applicable and (ii) Hazelcast will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data.
- Aggregate Data.Notwithstanding anything to the contrary set forth herein, Hazelcast may collect and use data regarding the use and performance of the Service in anonymized and aggregated form, to analyze and improve the Service and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of Customer or its users is revealed.
- Representations and Warranties.You represent, warrant, and covenant that (i) all Customer Data is accurate and compliant with all applicable laws, rules, and regulations; (ii) you own all rights, title, and interest in and to the Customer Data, or have otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use, and distribution thereof as contemplated by these Terms of Service; (iii) you shall only use the Services in accordance with all applicable laws, rules, and regulations, these Terms of Service and any relevant documentation provided by Hazelcast; and (iv) you will not, and will not permit any third party to upload, download, post, submit, provide, transmit, distribute, or otherwise make available to or through the Services any Customer Data that (A) is unlawful, infringing, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or that otherwise violates any other right of any third party, including any intellectual property, proprietary, or privacy rights, or that is otherwise inappropriate, as determined by us in our sole discretion; (B) contains any viruses, code, files, or programs designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive; (C) constitutes unauthorized or unsolicited advertising, junk, or bulk email (“spamming“) or otherwise violates federal CAN-SPAM regulation; or (D) contains any personally identifying information subject to specialized security regimes including without limitation the Health Insurance Portability and Accountability Act (“HIPAA“), and the standards promulgated by the PCI Security Standards Council (“PCI“). You acknowledge and agree that Hazelcast is not a “Business Associate“ under HIPAA, and you will not provide any protected health information to Hazelcast. You will not provide Hazelcast with any personally identifying information except for your information as necessary to allow you to establish an Account and ccess the Services as set forth in these Terms of Service. You are responsible for complying with CAN-SPAM, including without limitation for supplying an “Unsubscribe“ link in any emails required to include such link.
- Third-Party Resources. The Services are used in connection with other applications, websites, services, or resources on the Internet (“Third-Party Resources”) that are not under our control. When you connect the Services to Third-Party Resources you do so at your own risk. You acknowledge that we are not responsible or liable for the compatibility, content, functions, accuracy, legality, appropriateness, or any other aspect of such Third-Party Resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Resources when used with the Services. Hazelcast will also not be responsible or liable for any failure in the Services attributable to your or any third party’s products, services, negligence, willful misconduct, intentional act, fraud, breach of these Terms of Service, or other unauthorized access or use.
- Payments and Billing.
- Services. You will pay us the applicable fees and charges (“Fees”) for use of the Service in accordance with the terms and as described on https://www.hazelcast.com/pricing. We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on https://www.hazelcast.com/pricing, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. If you have any questions, please click here to access our FAQ or contact our support department: support@Hazelcast.com.
- Payment; Late Fees. Please note that any payment terms presented to you in the process of using or signing up for a Services are deemed part of these Terms of Services. All amounts are stated in, and shall be paid in, U.S. dollars. Invoices will be sent to the email address provided on registration, and charges applied to the credit card provided. By signing up to receive the Services, you (i) agree to pay us, in accordance with all applicable payment terms set forth on https://www.hazelcast.com/pricing and in these Terms of Service, the applicable Fees for such Services; (ii) authorize us, through the Payment Processor (defined below), to charge your chosen payment provider (“Payment Method“) for the applicable Fees and (iii) agree to make payment using that selected Payment Method. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If our collection efforts fail, unpaid debts will be reported to all available credit reporting agencies.
- Suspension of Services. We may suspend your right to access or use any portion or all of the Services immediately upon notice to you if we determine:
- your use of the Services
- poses a security risk to the Services or any third party,
- could adversely impact our systems, the Services,
- could subject us, our affiliates, or any third party to liability, or
- could be fraudulent;
- you are in breach of the Agreement;
- you are in breach of your payment obligations; or
- you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
- your use of the Services
- Effect of Suspension. If we suspend your right to access or use any portion or all of the Services you remain responsible for all fees and charges you incur during the period of suspension.
- Taxes. All Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes“). You will be responsible for paying all Taxes associated with the Services (without any offset or deduction to the fees paid to Hazelcast) other than U.S. taxes based on Hazelcast’s net income.
- Payment. We use a third-party payment processor (the “Payment Processor“) to bill you through a payment account linked to your Account on the Services (your “Billing Account“) for use of the Services. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to these Terms of Service. We are not responsible for error by the Payment Processor. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if the Payment Processor has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Auto-Extension. Unless you cancel or change your Services subscription in accordance with these Terms of Service, any subscriptions you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription originally selected, at the then-current non-promotional rate. By signing up for a subscription, you agree that we may submit the charges associated with such subscription for payment on the applicable schedule and you will be responsible for such charges. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Premium Service and/or Subscription.
- CONTINUING AUTHORIZATION. BY PURCHASING A SERVICES SUBSCRIPTION YOU ACKNOWLEDGE AND AGREE THAT WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO THE BILLING SECTION OF THE SERVICES. PLEASE CONTACT US AT SUPPORT@HAZELCAST.COM IF YOU NEED ANY ASSISTANCE. This does not waive our right to seek payment directly from you.
- CURRENT INFORMATION REQUIRED. YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR ACCOUNT CREDENTIALS OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE DIRECTLY BY YOU USING THE SERVICE. PLEASE CONTACT US AT SUPPORT@HAZELCAST.COM IF YOU NEED ANY ASSISTANCE. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF THE SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SERVICES SUBSCRIPTIONS SET FORTH ABOVE.
- Cancelling or Changing Services. To change or resign your Services subscription at any time, stop your running clusters and delete them. No charges will be incurred after that point. Please contact us at firstname.lastname@example.org if you need any assistance. Any request for cancellation must be sent three (3) days prior to the end of the Services subscription term to allow for adequate processing time. Your non-termination or continued use of the Service reaffirms that we are authorized to charge your Payment Method the Fees for such Services subscription, including any associated fees (e.g. overage fees or late fees, to the extent applicable). If you terminate the Services subscription, your paid Services subscription will not be renewed; however, you will not be eligible for a prorated refund of any portion of any Fees paid.
- Amount Authorized. We will provide notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- No Refunds. Once initiated by you, payment obligations are non-cancelable. Except as expressly set forth in these Terms of Service, Hazelcast will not, under any circumstances, issue refunds for any reason, including for any unused Services or if your actual usage of the Services falls below the purchased amount applicable to your subscription level for the Services.
- Chargeback Policy; Disputes. If you have a question about charges made to your Account, please contact us immediately. If the charges were made in error, we will credit your Billing Account or Payment Method for the appropriate amount. Please note that Hazelcast has a zero-tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid will be permanently banned from use of any and all Hazelcast Services.
- Free Trials and Other Promotions. Any beta test, free trial or other promotion that provides access to the Services (“Reduced Fee Services”) must be used within the specified time of the trial and your use must stay within the parameters outlined in the plan. If Hazelcast determines, in its sole and ultimate discretion, that you are not using the Services solely for evaluation, Hazelcast reserves the right to suspend or terminate your account immediately. You must stop using the Reduced Fee Trial Services before the end of the trial period in order to avoid being charged at the list prices for the Services. If you cancel prior to the end of the trial period and are inadvertently charged for the Services, please contact us at email@example.com.
- Feedback. At all times Hazelcast will have the unrestricted right to use and act upon any suggestions, ideas, enhancement requests, feedback and recommendations you provide specifically relating to the features, functionality and performance of the Services.
- Confidentiality. “Confidential Information” means all information disclosed by Hazelcast to the you, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Hazelcast’s Confidential Information includes the Services, as well as business and marketing plans, technology and technical information, product plans and designs, source code and business processes disclosed by Hazelcast. You will use a reasonable degree of care to protect the Confidential Information. You will not use any Confidential Information for any purpose outside the scope of these Terms of Service or disclose Confidential Information to any third party. You may disclose Confidential Information to the extent compelled by law, provided you give Hazelcast prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Hazelcast’s cost, if Hazelcast wishes to contest the disclosure.
- Data Security. Hazelcast will maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Services and Customer Data.
- Termination by Either Party. You have the option of canceling your Account at any time by following the instructions through the Services or by contacting us at firstname.lastname@example.org. We reserve the right to terminate your Account or access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately. All provisions of these Terms of Service which by their nature should survive termination or expiration will survive termination, including provisions regarding ownership, aggregate data use, payment (to the extent any payment obligations remain outstanding), warranty disclaimers, indemnity and limitations of liability.
- Customer Data After Termination. Termination or cancellation of your Account by either party may result in the forfeiture and destruction of all information and data, including Customer Data, associated with your Account. Termination, cancellation or expiration of your Account will result in a loss of your Customer Data; we may delete or destroy all copies of your Customer Data in our systems or otherwise in our possession or control, unless legally prohibited. We reserve the right, including after termination, to access, read, preserve, and disclose any information, including without limitation Customer Data, as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to support requests; or (v) protect the rights, property or safety of us, our users and the public.
- Fees Due Upon Termination. In the event of termination, you must pay Hazelcast all Fees due as of the effective date of termination which will be the sooner of i) five (5) days after following the XXXX procedure; or ii) when actually acknowledged in writing by Hazelcast.
- Prohibited Transactions.In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service, including your transfer and processing of Customer Data and compliance with any data privacy or data security laws. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. We reserve the right to refuse transactions (or terminate Accounts) that do not otherwise comply with this Section.
- Warranty Disclaimer.
- THE SERVICES ARE PROVIDED “AS IS“, “AS AVAILABLE“ AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND PARTNERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
- You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor“.
- Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction.
- Indemnification. You are solely responsible for Customer Data and your conduct related to the Services. You will defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services or your Customer Data, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
- Limitation of Liability IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS OR SUPPLIERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS TWELVE (12) MONTH PERIOD OR (II) $500.00.
- ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
- ARBITRATION; CLASS ACTION WAIVER. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS THEN IN EFFECT, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. AS AN ALTERNATIVE, YOU MAY BRING YOUR CLAIM IN YOUR LOCAL “SMALL CLAIMS“ COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT'S RULES AND IF WITHIN SUCH COURT’S JURISDICTION, UNLESS SUCH ACTION IS TRANSFERRED, REMOVED OR APPEALED TO A DIFFERENT COURT. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THESE TERMS OF SERVICE TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms must be filed within one (1) year after such claim of action arose or be forever banned.
- 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 14, you must notify us in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to us at the following address: Hazelcast Inc. 2 West 5th Ave., Suite 300, San Mateo, CA 94402 USA. If you do not notify us in accordance with this Section 14(b), you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (i) your name; (ii) your user name; (iii) your mailing address and (iv) a statement that you do not wish to resolve disputes with us through arbitration. If we make any changes to the Arbitration and Class Action Waiver section of these Terms (other than a change to the address at which we will receive notices of dispute, opt-out notices, or rejections of future changes to the Arbitration and Clause Action Waiver section), you may reject any such change by sending us written notice within 30 days of the change to the address set forth in this 14(b). It is not necessary to send us a rejection of a future change to the Arbitration and Class Action Waiver section of these Terms if you had properly opted out of the arbitration and class-action waiver provisions in this Section 14 within the first 30 days after you first accepted these Terms of Service. If you have not properly opted-out of the arbitration and class-action waiver provisions in this Section 14, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject. This notification affects these Terms of Service only; if you previously entered into other arbitration agreements with us or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms of Service shall not affect the other arbitration agreements between you and us.
- Severability. If the prohibition against class actions and other claims brought on behalf of third-parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration and Class Action Waiver section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
- Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of Hazelcast to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
- Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- Subcontractors. We use subcontractors to provide certain aspects of the Services and in some cases permit them to access Customer Data subject to appropriate obligations of security, confidentiality and compliance with applicable laws. We remain responsible for our subcontractors’ compliance with these Terms of Service with respect to their services provided hereunder.
- Assignment.These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
- Agency.No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
- Notices.Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com. You acknowledge and agree that Hazelcast may occasionally send you communications regarding your account or the Services via email or by posting on the Services. You acknowledge and agrees that Hazelcast may occasionally send notices to you regarding your Account or the Services via email or via the Services.
- No Waiver.Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
- Open Source.The Services contain or are distributed with open source software or other third-party software which are covered by a different license. Notwithstanding anything to the contrary, the obligations of Hazelcast set forth in these Terms of Service do not extend to any open source software or such other third-party software which may be made available by Hazelcast, or otherwise obtained or used by you. You agree that all open source software or such other third-party software shall be and shall remain subject to the terms and conditions under which it is provided, and you shall be responsible for compliance with such terms. To the fullest extent possible, Hazelcast disclaims all warranties and liability regarding such open source and third-party software in accordance with the terms of these Terms of Service.
- Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Hazelcast to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
- Headings; Interpretation.The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of “including“ “for example“ or “such as“ in these Terms of Service shall be read as being followed by “without limitation“ where appropriate.
- Publicity.You hereby consent to inclusion of your name and logo in client lists that may be published as part of Hazelcast’s marketing and promotional efforts.
- Legal Claim Timing Limitations.Any claim related to these Terms of Service, the Site(s) or the Service must be brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to you and your successors.
Hazelcast commits to being GDPR compliant.
Contact. You may contact us at the following address: Hazelcast Inc. at firstname.lastname@example.org or 2 West 5th Ave., Suite 300, San Mateo, CA 94402 USA.