Layer0 Platform Terms of Service

Version Effective Date: April 2021

This Layer0 Platform Terms of Service (“Agreement”) is entered into by and between Layer0 Corporation (“Layer0”) and the entity or person (“Customer” or “you”) placing an order for or accessing the Service, Support, Professional Services or other related Layer0 services (“Products”). This Agreement consists of the terms and conditions set forth below and any Orders. If you are accessing or using the Products on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Products through any online provisioning, registration or order process or (b) the effective date of the first Order. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement. Layer0 may modify this Agreement from time to time as permitted in Section 20 (Modifications to Agreement).

By indicating your acceptance of this Agreement or accessing or using the Service, you are agreeing to be bound by the terms and conditions of this Agreement. Each party expressly agrees that this Agreement is legally binding upon it.

1.      Overview. The Layer0 Service is designed to enable Customer to deploy, manage and optimize its websites as Projects through a single platform that integrates with Customer’s back-end systems and Third-Party Platforms. Customer may use the Developer Tools to implement and maintain a Project itself and/or may purchase Professional Services from Layer0 to implement and maintain a Project.

2.      The Service.

2.1.  Permitted Use. During the Subscription Term, Customer may access and use the Service solely for its own benefit in accordance with the Documentation and this Agreement, including any scope of use restrictions in an Order. This includes the right to copy and use the Developer Tools to implement and maintain Projects as part of Customer’s authorized use of the Service.

2.2.  Users. Only Users may access or use the Service. Each User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Layer0’s breach of this Agreement). Customer will promptly notify Layer0 if it becomes aware of any compromise of its User login credentials. Layer0 uses User account information as described in its Privacy Policy.

2.3.  Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party, (b) use the Service on behalf of, or to provide any product or service to, third parties, (c) use the Service to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service, except to the extent expressly permitted by Law (and then only with prior notice to Layer0), (e) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Developer Tools), (f) remove or obscure any proprietary notices in the Service, (g) publish benchmarks or performance information about the Service, (h) transmit any viruses or other harmful materials to the Service or (i) use the Service in violation of the AUP.

3.     SLA and Support. During the Subscription Term, the Service will be subject to the SLA and Layer0 will provide Support in accordance with the Support Policy.

4.      Customer Data.

4.1.  Service Data Use. Customer grants Layer0 the non-exclusive, worldwide right to use, copy, store, transmit, modify and create derivative works of Service Data to provide the Products to Customer under this Agreement. Customer acknowledges and agrees that, in connection with providing the Products, Layer0 may use Service Data internally for security, product improvement and support purposes.

4.2.  Collected Data Use. Customer grants Layer0 the non-exclusive worldwide right to copy and transmit Collected Data but only as necessary to provide the Products to Customer under this Agreement. Customer acknowledges and agrees that Layer0 is acting solely as a passive conduit to transmit Collected Data to Customer and that the Service is not designed (and Layer0 has no responsibility) for any caching or storage of Collected Data.

4.3.  Security. Layer0 uses reasonable technical and organizational measures designed to protect the Service and Customer Data as described in the Security Policy.

4.4.  Personal Data. Each party agrees to comply with the DPA.

4.5.  Data Export. During the Subscription Term and for 30 days afterwards, Customer may export its Customer Data stored within the Service using the export features described in the Documentation. After this export period, Layer0 may delete any Customer Data stored within the Service in accordance with its standard schedule and procedures.

5.      Customer Assets. Customer grants Layer0 the non-exclusive, worldwide right to use, copy, store, transmit, distribute, adapt, modify, translate, publicly perform and display, and create derivative works of any Customer Assets provided to Layer0 solely for purposes of providing the Products to Customer under this Agreement. As between the parties, Customer will be solely responsible for compliance with any third-party license or other terms and conditions of use for Customer Assets (including for Third-Party Platforms as further described in Section 9 (Third-Party Platforms).

6.      Customer Obligations.

6.1.  Compliance. Customer is responsible for its Customer Data and Customer Assets, including their content and accuracy, and agrees to comply with Laws and the AUP in using the Service. Customer represents and warrants that (a) it has made all disclosures and has all rights, consents and permissions necessary to use its Customer Data and Customer Assets with the Service and grant Layer0 the rights in Sections 4.1 (Service Data Use), 4.2 (Collected Data Use) and 5 (Customer Assets), (b) the Customer Data and Customer Assets (and their use contemplated in this Agreement, including Customer’s collection and use of Collected Data) will not violate or infringe Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Data or the Customer Assets, and (c) there are no pending or threatened claims pertaining to Customer Data or Customer Assets that could impact Customer or Layer0 under this Agreement (and Customer will promptly notify Layer0 in event of such a claim).

6.2.  Prohibited Uses. Customer must not use the Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Layer0 is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Layer0 has no liability for Prohibited Data or use of the Service for High Risk Activities. Further, the Service is not designed to store or cache Collected Data, and Layer0 will have no responsibility for any Collected Data stored or cached as a result of modifications to or configuration of the Service by Customer.

6.3.  Configuration Requirements. Customer acknowledges and agrees that successful implementation and display of Projects is dependent upon the availability of Customer Assets and proper configuration of any Projects in accordance with the Documentation and any other configuration requirements provided to Customer by Layer0. Notwithstanding anything to the contrary in this Agreement, Layer0 will have no responsibility or liability: (a) with respect to the availability or uptime of Customer Assets, (b) for any inability to implement or display a Project if the Customer Assets become unavailable to the Service or (c) for maintaining backup copies of Customer Assets.

6.4.  Customer Assets and Third-Party Rights. Customer must promptly address any notices of alleged infringement or violation of third-party rights by Customer Assets, including Digital Millennium Copyright Act (“DMCA”) takedown requests, and must promptly notify Layer0 of any such notices applicable to its use of the Service. Notwithstanding the foregoing, without limiting Layer0’s other rights and remedies in this Agreement, Layer0 reserves the right to respond to any DMCA notices it receives by taking any actions necessary to comply with applicable Laws.

6.5.  End Users. Customer is solely responsible for all interaction with the Project by its End Users, including obtaining all End User clearances, consents and approvals required by Laws and implementing terms that govern End User interaction with the Project.

7.      Suspension of Service. Layer0 may suspend Customer’s access to the Service and related services (a) if Customer breaches Section 2.3 (Restrictions) or Section 6 (Customer Obligations), (b) if Customer’s account is 30 days or more overdue, (c) if Customer’s actions risk harm to other customers or the security, availability or integrity of the Service, (d) for suspected or actual violation of the AUP or (e) as required by Laws, court order or other governmental request. Layer0 may also suspend access to the Service or take down Customer Assets in response to notices of alleged infringement. Where practicable, Layer0 will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Layer0 will promptly restore Customer’s access to the Service in accordance with this Agreement.

8.     Third-Party Platforms. Customer may choose to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Layer0 does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use Customer Data or Customer Assets. If Customer enables a Third-Party Platform with the Service, Layer0 may access and exchange Customer Data or Customer Assets with the Third-Party Platform on Customer’s behalf.

9.     Professional Services.

9.1.  Scope. Any purchased Professional Services are as described in the relevant Order or SOW. Customer will give Layer0 timely access to Customer Assets reasonably needed for the Professional Services, and if Customer fails to do so, Layer0’s obligation to provide Professional Services will be excused until access is provided. If Layer0 provides Customer with deliverables as part of Professional Services, Customer may use the deliverables only as part of its authorized use of the Service, subject to the same terms as for the Service in Section 2 (The Service) and Section 6 (Customer Obligations).

9.2.  Implementation Code. As a limited exception to the use rights for Professional Services deliverables in Section 9.1 above and subject to the terms and conditions of this Agreement, Layer0 grants to Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable, perpetual license to use, reproduce, modify and create derivative works of any Implementation Code solely for its internal business purposes. Customer will not use Implementation Code for any competitive purpose, including to build or provide a competitive product or service to the Service. Layer0 will have no obligations with respect to Implementation Code following expiration or termination of this Agreement.

10. Commercial Terms.

10.1.    Subscription Term. Each Subscription Term will renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 90 days before the current Subscription Term ends.

10.2.    Fees and Taxes. Fees are as described in each Order or SOW. Layer0 will charge Customer for Professional Services at the rates set forth in the applicable Order or SOW (or, if not specified, Layer0’s then-standard rates). Customer will reimburse Layer0 for reasonable travel and lodging expenses it incurs in providing Professional Services. Fees are invoiced on the schedule in the Order or SOW and reimbursable expenses are invoiced in arrears. Unless the Order or SOW provides otherwise, all fees and expenses are due within 30 days of the invoice date. Fees for renewal Subscription Terms are at Layer0’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as set out in Section 11.2 (Warranty Remedy), Section 15.4 (Mitigation and Exceptions) and the SLA. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Layer0’s income tax. Fees and expenses are exclusive of Taxes.

10.3.    Affiliate Orders. An Affiliate of Customer may enter its own Order(s) as mutually agreed with Layer0. This creates a separate agreement between the Affiliate and Layer0 incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with Layer0, and breach or termination of any such agreement is not breach or termination under any other.

11.     Warranties and Disclaimers.

11.1.     Limited Warranty. Layer0 warrants to Customer that:

(a)   the Service will perform materially as described in the Documentation (the “Performance Warranty”) and

(b)   Layer0 will perform any Professional Services in a professional and workmanlike manner and in substantial conformity with the specifications set forth in the applicable SOW (the “Professional Services Warranty”).

11.2. Warranty Remedy. If Layer0 breaches Section 11.1 (Limited Warranty) and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Layer0 will use reasonable efforts to correct the non-conformity. If Layer0 determines such remedy to be impracticable, either party may terminate the affected Order as relates to the non-conforming Service or Professional Services. Layer0 will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). These procedures are Customer’s exclusive remedy and Layer0's entire liability for breach of the warranties in Section 11.1.These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.

11.3.    Disclaimers. Except as expressly provided in Section 11.1 (Limited Warranty), the Products are provided “AS IS”. Layer0 and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or non-infringement. Without limiting its express obligations in Section 3 (SLA and Support), Layer0 does not warrant that Customer’s use of the Service or display of Projects will be uninterrupted or error-free, that Layer0 will review Customer Data for accuracy or that it will maintain Customer Data without loss, and Layer0 expressly disclaims all obligations with respect to storage or caching of Collected Data. Layer0 is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside Layer0’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

12.  Term and Termination.

12.1.    Term. This Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms and SOWs.

12.2.    Termination. Either party may terminate this Agreement (including all Orders and SOWs) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. Layer0 may terminate this Agreement without notice to Customer if the Service has been suspended under Section 7 (Suspension of Service) and Customer fails to cure the precipitating event to Layer0’s satisfaction within 15 days after notice.

12.3.    Effect of Termination. Upon expiration or termination of this Agreement or an Order or SOW, Customer’s access to the Service and Professional Services will cease, other than limited use of the Service to export Customer Data as described in Section 4.5 (Data Export), and Customer must pay any outstanding amounts due for the Service and any Professional Services provided through the termination date or otherwise contractually committed, as applicable. Upon expiration or termination of this Agreement, all Orders and SOWs will terminate, and at the disclosing party’s request the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Data, which is addressed in Section 4.5). Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.

12.4.    Survival. These Sections survive expiration or termination of this Agreement: 2.3 (Restrictions), 4.5 (Data Export), 6 (Customer Obligations), 10.2 (Fees and Taxes), 11.3 (Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 17 (Required Disclosures), 20 (General Terms) and 22 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

13.   Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Layer0’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Data and Customer Assets provided to Layer0. Except for Customer’s use rights in this Agreement, Layer0 and its licensors retain all intellectual property and other rights in the Products, Professional Services deliverables (including any Implementation Code) and related Layer0 technology, templates, formats and dashboards, including any modifications or improvements to these items made by Layer0. If Customer provides Layer0 with feedback or suggestions regarding the Products, Layer0 may use the feedback or suggestions without restriction or obligation.

14.  Limitations of Liability.

14.1.     Consequential Damages Waiver. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.

14.2.     Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Layer0 during the prior 12 months under this Agreement.

14.3.     Excluded Claims. Excluded Claims” means: (a) Customer’s breach of Sections 2.3 (Restrictions) or 6 (Customer Obligations), (b) either party’s breach of Section 16 (Confidentiality) (but excluding claims relating to Customer Data) or (c) amounts payable to third parties under the indemnifying party’s obligations in Section 15 (Indemnification).

14.4.     Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

15.       Indemnification.

15.1.     Indemnification by Layer0. Layer0 will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Layer0 resulting from the claim.

15.2.    Indemnification by Customer. Customer will defend Layer0 from and against any third-party claim to the extent resulting from (a) Customer Data, Customer Assets, or End User access to and use of Projects (including collection of Collected Data in accordance with this Agreement) or (b) Customer’s breach or alleged breach of Section 6 (Customer Obligations), and will indemnify and hold harmless Layer0 against any damages or costs awarded against Layer0 (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.

15.3.    Procedures. The indemnifying party’s obligations in this Section 15 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party's prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of any materials licensed by one party to the other in this Agreement). The indemnified party may participate in a claim with its own counsel at its own expense.

15.4.    Mitigation and Exceptions. In response to an actual or potential infringement claim, if required by settlement or injunction or as Layer0 determines necessary to avoid material liability, Layer0 may at its option: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. Layer0’s obligations in this Section 15 do not apply (1) to infringement resulting from Customer’s modification of the Service or use of the Service in combination with items not provided by Layer0 (including Third-Party Platforms), (2) to infringement resulting from Developer Tools other than the most recent release, (3) to unauthorized use of the Service, (4) to any action arising as a result of Customer Data or Customer Assets, (5) to any action arising as a result of customizations or modifications to the Service or any Project by Layer0 or any third party that are based on Customer’s specifications, (6) if Customer settles or makes any admissions about a claim without Layer0’s prior consent or (7) to Trials and Betas or other free or evaluation use. This Section 15 sets out Customer’s exclusive remedy and Layer0’s entire liability regarding infringement of third-party intellectual property rights.

16.   Confidentiality.

16.1.     Definition.Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Layer0’s Confidential Information includes the Products and any technical or performance information about the Service. Customer’s Confidential Information includes Customer Data. The terms and conditions of this Agreement constitute Confidential Information of both parties.

16.2.     Obligations. As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Service Data Use), 4.2 (Collected Data Use) and 21.11 (Open Source) and (b) only use Confidential Information to fulfil its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Layer0, the subcontractors referenced in Section 21.8), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.

16.3.     Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.

16.4.     Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.

17.  Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

18. Trials and Betas. If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Layer0 (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Layer0 may never release, and their features and performance information are Layer0’s Confidential Information. Notwithstanding anything else in this Agreement, Layer0 provides no warranty, indemnity, SLA or support for Trials and Betas and its liability for Trials and Betas will not exceed US$500.

19.  Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Layer0 may include Customer and its trademarks in Layer0’s customer lists and promotional materials but will cease this use at Customer’s written request.

20.  Modifications to Agreement. Layer0 may modify this Agreement (which may include changes to Service pricing and plans) from time to time by giving notice to Customer by email or through the Service. Unless a shorter period is specified by Layer0 (e.g., due to changes in the law or exigent circumstances), modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order. If Layer0 specifies that the modifications to this Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Layer0 of its objection to the modifications within 30 days after the date of such notice, Layer0 (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

21.   General Terms.

21.1.     Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. No assignment will be valid unless the permitted assignee agrees in writing to be bound by the terms of this Agreement, and any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

21.2.     Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.

21.3.    Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to Layer0, notice must be provided to 340 Pine Street, Suite 400, San Francisco, CA 94104. Either party may update its address with notice to the other party. Layer0 may also send operational notices to Customer by email or through the Service.

21.4.     Entire Agreement. This Agreement (which includes all Orders, the Policies and the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

21.5.     Amendments. Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Layer0. Nonetheless, with notice to Customer, Layer0 may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Layer0’s overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Layer0; any of these Customer documents are for administrative purposes only and have no legal effect.

21.6.     Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

21.7.     Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

21.8.     Subcontractors. Layer0 may use subcontractors and permit them to exercise Layer0’s rights, but Layer0 remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

21.9.     Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

21.10.  Export. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Service. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Service any information controlled under the U.S. International Traffic inArms Regulations.

21.11.  Open Source.

(a)   Proprietary Developer Tools. The Developer Tools may incorporate third-party open source software (“OSS”), as listed in the Documentation or by Layer0 upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

(b)   OpenSource Developer Tools. To the extent a particular Developer Tool is made available under through Layer0’s download center under an OSS license, Customer’s use of the Developer Tool is subject to that OSS license and not this Agreement.

21.12. Government End-Users. Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction ,release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of thisAgreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.

21.13. Insurance. During the term of this agreement, Layer0 will maintain full force and effect the insurance policies listed here at its own cost and expense.

21.14.  No Third-Party Beneficiaries. No third party will be deemed to be an intended or unintended third party beneficiary of this Agreement.

22.       Definitions.

Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

AUP” means the Layer0 Acceptable Use Policy.

Collected Data” means any information or other data of any type which is input by or on behalf of End Users into a Project (e.g., using web input forms or similar functionality used to submit information to Customer from a Customer website).

Competitor” means an entity other than Layer0 that provides website hosting, content delivery, server-side rendering, Progressive Web Application creation or similar services.

Customer Assets” means any materials provided by Customer to Layer0 in connection with implementing, deploying or maintaining a Project, including (a) the Customer websites specified in an Order, (b) any systems, APIs, code, scripts or applications (including for Third-Party Platforms) and(c) any images, graphics, photos, digital media, brand features, logos, trademarks, service marks, written text, copy or similar materials.

Customer Data” means Service Data and Collected Data.

Developer Tools” means any tools, files, libraries or other developer tools provided to Customer by Layer0 for use with the Service.

Documentation” means Layer0’s usage guidelines and standard technical documentation for the Service, the current version of which is at

DPA” means Layer0’s data processing addendum.

End User” means an end user who visits and interacts with a Project.

End User Logs” means standard web access information logged when an End User interacts with a Project.

High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.

Implementation Code” means any code or scripts delivered to Customer by Layer0 in connection with any Professional Services.

Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.

Order” means an order for access to the Products referencing this Agreement that is executed by the parties or that Customer completes through a Layer0-provided online order form.

Privacy Policy” means the Layer0 Privacy Policy.

Policies” means the AUP, Security Policy, Support Policy and SLA.

Professional Services” means professional consulting services related to implementing and maintaining Projects on behalf of Customer, as identified in an Order or SOW.

Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health InsurancePortability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (d) social security numbers, driver’s license numbers or other government ID numbers or (e) any data similar to the above protected under foreign or domestic Laws.

Project” means the version of aCustomer website deployed using the Service, as identified in an Order.

Security Policy” means the Layer0 Security and Disaster Recovery Policy.

Service” means Layer0’s proprietary cloud service, as identified in the relevant Order and as modified from time to time.The Service includes the Documentation and the Developer Tools, to the extent made available by Layer0 to Customer under this Agreement, but does not include Professional Services deliverables or Third-Party Platforms.

Service Data” means (a) any account settings or similar business information or data which is input by or on behalf of Customer into the Service and (b) End User Logs.

SLA” means the Layer0 Service Level Agreement.

SOW” means a Statement of Work referencing this Agreement and executed by both parties describing the ProfessionalServices to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information.

Subscription Term” means the term forCustomer’s use of the Service as identified in an Order.

Support” means support for the Service as described in the Support Policy. Customer’s Support level will be identified in its Order.

Support Policy” means the Layer0 Support Policy.

“Third-Party Platform” means any platform, data source or other service not provided by Layer0 that Customer elects to integrate or enable for use with the Service.

User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Service on its behalf. Competitors may not be Users.

Please refer to the following pages for additional information: 

1. Service Level Agreement

2. Customer Support Policy

3. Security and Disaster Recovery Policy

4. Insurance Notice

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