IMPORTANT-READ CAREFULLY: YOUR USE OF THE DREAMFACTORY SOFTWARE IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS. BY UTILIZING THE DREAMFACTORY SOFTWARE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This is a legal agreement ("Agreement") between You (“Customer”) and DreamFactory Software (Trading Name of Integrate.io, Inc) ("DreamFactory"), for a subscription license to the DreamFactory Enterprise software (the "Product"), consisting of the DreamFactory Management Console (the “Management Console”) and one or more instances of the DreamFactory REST API Developer Environment (the “Developer Environment”). The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. LICENSE. DreamFactory hereby grants to Customer a non-exclusive, non-transferable, worldwide right for Customer to use the Developer Environment to develop applications (“Customer Apps”) and reproduce, license and distribute Customer Apps to End Users, subject to the terms and conditions of this Agreement and the limitations set forth in the preceding quote. “End Users” means individuals authorized by Customer to use Customer Apps. DreamFactory hereby grants to Customer a non-exclusive, non-transferable, worldwide right for Customer to use the Management Console to manage instances of the Developer Environment installed at Customer’s facilities or locations under Customer’s control, subject to the terms and conditions of this Agreement and the limitations set forth in the preceding quote. This quote identifies different “License Types” and specifies different limitations on use for each License Type. Customer may permit the Product to be accessed only by Customer’s employees or contractors. Customer is responsible for use of the Product by its employees and contractors and shall abide by all applicable local, state, national and foreign laws and regulations in connection with use of the Product. Customer shall notify DreamFactory immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Product. All rights not expressly granted herein are reserved by DreamFactory and its licensors.
2. PRICES AND FULFILLMENT.
2.1 Customer will be billed annually at the commencement of each Subscription Term (as defined in Section 6), at the then-current price for the selected License Type. The prices set forth in the preceding quote include all charges for the right to use the Product and updates for the Product made commercially available during the Subscription Term, but do not include sales taxes, use taxes, value added taxes, or duties, which may be specified separately on the DreamFactory invoice. DreamFactory reserves the right to modify its fees and charges and to introduce new charges. Any change in pricing will be effective at the commencement of Customer’s next Subscription Term, provided that Customer has been notified of such price change at least forty-five (45) days prior to the commencement of such Subscription Term. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
2.2 VIRTUAL CPU (vCPU) BASED PRICING. In instances where the Software is deployed within virtualized environments, including but not limited to Docker containers or Kubernetes clusters, the pricing and licensing of the Software will be based on the number of virtual CPUs (vCPUs) allocated to run the Software.
a) Definition of vCPU: For the purposes of this Agreement, a virtual CPU (vCPU) is defined as a unit of virtual processing power that is provided to the Software running within a virtualized environment.
b) Pricing Structure: You agree that DreamFactory will charge Your Account based on the number of vCPUs allocated to the Software. The specific pricing per vCPU and any associated tiered pricing structures will be as set forth in DreamFactory’s then-current price list, available on DreamFactory’s website or through direct communication with DreamFactory.
c) Billing and Payment: Billing will occur on a regular basis as determined by Your selected subscription plan. Failure to pay the fees as required may result in suspension or termination of Your access to the Software.
d) Quarterly and Annual Check-Ins for Usage Confirmation: d1. For the first year of this Agreement, You are required to participate in quarterly check-ins via email or video call with DreamFactory to confirm the usage of the Software and the number of vCPUs allocated. d2. After the first year, the check-ins will occur annually. d3. These check-ins are mandatory and are a condition of continued use of the Software under this vCPU pricing structure. d4. Your billing will be adjusted based on the usage determined during these check-ins, and any additional fees resulting from an increase in vCPU allocation will be charged to Your Account. e) Audit Rights: Since DreamFactory operates as an on-premises service, the company does not have direct access to audit your use of the Software. As such, we rely on your active cooperation to ensure compliance with this vCPU based pricing structure. You agree to provide reasonable assistance and grant access to accurate usage information during any compliance verification processes initiated by DreamFactory. f) Modifications to vCPU Pricing: DreamFactory may, at its sole discretion, modify the vCPU pricing structure from time to time. Any changes to the pricing will be effective immediately upon posting to DreamFactory’s website or communication to You and will apply to any subsequent billing cycles.
3. INVOICES & PAYMENTS. Customer shall pay all invoices within 30 days of the date of receipt of such invoice from DreamFactory. Except as explicitly provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are non-refundable. The fees paid by Customer are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on DreamFactory’s income. Customer represents that the billing and contact information provided by Customer to DreamFactory is complete and accurate. If Customer believes its bill is incorrect, Customer must contact DreamFactory in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
4. NO COMMERCIAL USE. Other than using the Product in accordance with Section 1, and as permitted under the terms and conditions of this Agreement or other written agreements between Customer and DreamFactory, Customer may not sublicense, sell, resell, transfer, assign, distribute, allow others to make any commercial use of, use on a timeshare or service bureau basis, or generate income from allowing others to use the Product.
5. PROPRIETARY RIGHTS. DreamFactory or its licensors own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Product. DreamFactory shall retain ownership of any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Product. Customer acknowledges that the licenses granted under this Agreement do not provide Customer with title to or ownership of the Product, but only a right to use under the terms and conditions of this Agreement. Customer shall not cause or permit the modification, disassembly, decompilation or reverse engineering of the Product or otherwise attempt to gain access to the source code to the Product. Customer may not modify, adapt, translate or create derivative works based on all or any part of the Product. Customer shall not use the Product in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Product.
6. TERM AND TERMINATION. The initial term of this Agreement shall commence on the Effective Date and end one (1) year from the Effective Date. After the initial term, the Agreement shall automatically renew for an additional one (1) year term, unless (a) either party provides the other party at least thirty (30) days written notice prior to the next Effective Date anniversary or, (b) this Agreement is earlier terminated for breach pursuant to this Section 6. The initial term and each renewal term are each referred to herein as a “Subscription Term”. If either party fails to comply with any provision of this Agreement, this Agreement may be terminated immediately if such breach has not been cured within thirty (30) days of notice of such breach. Sections 2, 3, 4, 5, 6, 7.2, 8, 9, 10 and 11 shall survive any termination of this Agreement. Upon any termination of this Agreement, Customer shall cease any further use of the Product and destroy any copies of the Product within Customer’s possession and control.
7.1 LIMITED WARRANTY. DreamFactory warrants to Customer that the Product will, in all material respects, conform to the functionality described in the DreamFactory documentation for the Product. DreamFactory's sole and exclusive obligation, and Customer's sole and exclusive remedy for a breach of this warranty shall be that DreamFactory shall be required to use commercially reasonable efforts to modify the Product to conform in all material respects the DreamFactory documentation, and if DreamFactory is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Customer shall be entitled to terminate the Agreement upon written notice and shall be entitled to receive a pro-rata refund of the unused license fees which have been paid in advance (if any) under this Agreement. This warranty shall be in effect for the first thirty (30) days ("Warranty Period") from the date the Product is first provided to the Customer. In the event of any material non-conformance reported after the Warranty Period, DreamFactory's sole and exclusive obligation and Customer's sole and exclusive remedy shall be to obtain error corrections through DreamFactory's technical support services.
7.2 WARRANTY DISCLAIMER. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, DREAMFACTORY AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE PRODUCT AND/OR DREAMFACTORY SERVICES. DREAMFACTORY EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE PRODUCT.
8.1 DreamFactory agrees to indemnify, defend and hold harmless Customer from any third party suits, claims, or demands and any associated losses, liabilities, costs and expenses (including reasonable attorney and accounting fees) that Customer may sustain or incur arising from infringement or misappropriation solely by the Product (and not in combination with any software, hardware or other items not supplied by DreamFactory) of any copyright, trademark or trade secret of a third party, or any US patent issued or existing on or before the Effective Date (“Claim”), provided that Customer complies with the terms of Section 8.3 below. In the event that the licensed Product are, or in DreamFactory’s sole opinion is likely to be, enjoined due to a Claim, DreamFactory, at its option and expense, may (a) replace the Product with functionally equivalent non-infringing technology or (b) obtain a license for Customer’s continued use of the Product, or, if the foregoing alternatives are not reasonably available to DreamFactory (c) terminate this Agreement and refund any sums prepaid for the unused Subscription Term, if any. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DREAMFACTORY AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCT.
8.2 Provided that DreamFactory complies with the terms of Section 8.3 below, Customer agrees to indemnify, defend and hold harmless DreamFactory, its affiliates, officers, directors, employees, consultants, and agents from any and third party suits, claims, or demands and any associated losses, liabilities, costs and expenses (including reasonable attorney and accounting fees) arising from: (i) Customer’s violation of this Agreement; (ii) any Customer App, including but not limited to the infringement or violation by a Customer App of any law or regulation or of any intellectual property or other right of any person or entity.
8.3 In claiming any indemnification under this Section 8, the indemnified party shall promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations relative to the settlement of any such claim. Any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which consent shall not be unreasonably withheld or delayed.
9. LIMITATION OF LIABILITY.
9.1 DREAMFACTORY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (i) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (ii) ANY UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF THE WEB SITE, ANY CONTENT, CUSTOMER DATA, SYSTEM DATA, OTHER DATA FILES, PROGRAMS OR INFORMATION THROUGH ERROR, OMISSION, ACCIDENT OR FRAUDULENT MEANS OR DEVICES NOT DIRECTLY ATTRIBUTABLE TO DREAMFACTORY’S NEGLIGENT ACTS OR OMISSIONS, OR FOR OTHER CIRCUMSTANCES OUTSIDE OF DREAMFACTORY’S REASONABLE CONTROL, OR (iii) ANY MALFUNCTION OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDER OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET WHICH MAY AFFECT THE OPERATION OF THE PRODUCT.
9.2 IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY AGREES TO TAKE REASONABLE ACTION TO MITIGATE ITS DAMAGES.
9.3 IN NO EVENT SHALL DREAMFACTORY’S LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID AND OWED TO DREAMFACTORY UNDER THIS AGREEMENT IN THE PRIOR 12 MONTHS OR $500, WHICHEVER IS GREATER. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY AND OTHER TORTS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
10. FORCE MAJEURE. Neither party hereto will be liable for defaults or delays due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence.
11.1 Choice of Law and Forum.This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, U.S.A., without regard to its conflict of law principles. The parties hereby consent to the personal jurisdiction of and venue in the state and federal courts located within the State of Nevada. Any actions, suits, or proceedings arising out of or relating to this Agreement shall be venued in such courts.
11.2 Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
11.3 General Provisions. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of either parties upon breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on either party, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this agreement or use of the Product.
11.4 Assignment; Change in Control. This Agreement may not be assigned by either party without the prior written approval of the other, but may be assigned without such consent to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of a party’s assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
11.5 Marketing. Customer agrees that DreamFactory may refer to Customer by trade name and logo, and may briefly describe Customer’s business in DreamFactory’s marketing materials and website. DreamFactory and Customer may, upon the parties’ mutual agreement, issue a joint press release to announce the relationship of the parties hereunder. Neither party will issue any separate press release related to this Agreement without obtaining the other party’s prior approval, which shall not be unreasonably withheld.
11.6 Notice. DreamFactory may give notice by means of a general Product notices, electronic mail to Customer’s e-mail address on record in Customer’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Customer’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to DreamFactory (such notice shall be deemed given when received by DreamFactory) at any time by any of the following: letter sent by confirmed facsimile to DreamFactory at +1-415-993-5877; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to DreamFactory at the following: 5940 S Rainbow Blvd Ste 400 #97691 Las Vegas, NV 89118 US, addressed to the attention of: Legal Department.
11.7 Modifications. Any modification to this agreement must be in writing and signed by both parties
11.8 Additional services. Any requests for services beyond the support offered in the Customer’s support package will be available, upon customer request agreed to between the parties.