Terms
Terms of Service

Terms of Service

Effective Date: March 28, 2025

(Prior version available here)

THESE HYPERDX SERVICE TERMS OF SERVICE (“TERMS”) GOVERN THE ACCESS TO AND/OR USE OF THE HYPERDX SERVICE (“HYPERDX SERVICE”), AND ARE PART OF A LEGAL CONTRACT BETWEEN DEPLOYSENTINEL, INC. (“DEPLOYSENTINEL”, “WE” OR “US”) AND PERSONS OR ENTITIES (“CUSTOMER” OR “YOU”) SEEKING TO ACCESS AND/OR USE THE HYPERDX SERVICE. THE TERMS, TOGETHER WITH ANY APPLICABLE ORDER FORM, AS WELL AS ADDITIONAL TERMS AND CONDITIONS AND/OR POLICIES REFERENCED AND INCORPORATED HEREIN, PROVIDE ALL OF THE TERMS AND CONDITIONS INCLUDED IN A LEGALLY BINDING CONTRACT BETWEEN YOU AND DEPLOYSENTINEL (“AGREEMENT”), WHICH BECOMES EFFECTIVE UPON YOUR REGISTRATION FOR AN ACCOUNT ON THE HYPERDX SERVICE OR OTHERWISE UPON STARTING USE OF THE HYPERDX SERVICE (“EFFECTIVE DATE”). IF YOU ACCESS OR USE THE HYPERDX SERVICE ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO DEPLOYSENTINEL THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.

IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS IN THE AGREEMENT, YOU SHOULD NOT ACCESS OR USE THE HYPERDX SERVICE, BECAUSE BY ACCESSING OR USING THE HYPERDX SERVICE, YOU IRREVOCABLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. NOTWITHSTANDING THE FOREGOING, ANY WRITTEN AGREEMENT CURRENTLY IN EFFECT BETWEEN DEPLOYSENTINEL AND YOU, OR AN ENTITY ON WHOSE BEHALF YOU ARE ACTING, THE TERMS OF WHICH ADDRESS YOUR USE OF THE HYPERDX SERVICE, SHALL GOVERN YOUR USE OF THE HYPERDX SERVICE IN LIEU OF THIS AGREEMENT.

  1. DeploySentinel Provision and Customer Use of the HyperDX Service

    1. Provision of the HyperDX Service. During the Term, and subject to the terms and conditions of this Agreement, DeploySentinel will provide to Customer, and Customer is hereby granted the right to access and use, the HyperDX Service.

    1. Compliance with Law. DeploySentinel will provide the HyperDX Service in accordance with laws and regulations, including, without limitation, laws and regulations concerning data privacy and data transfer, that are directly applicable to its provision of the HyperDX Service.

    2. Reserved.

    3. Suspension of Access to the HyperDX Service. DeploySentinel may suspend Customer’s access to the HyperDX Service if (i) amounts owed to DeploySentinel by Customer or Reseller are more than thirty (30) days past due, provided that such amounts are not subject to the payment disputes provision in Section 2.7 below, (ii) Customer’s use of the HyperDX Service materially degrades the performance of the HyperDX Service for other customers or presents a material security risk, or risks causing material harm to DeploySentinel or its other customers, (iii) Customer uses the HyperDX Service in violation of Section 1.2.3, or (iv) where DeploySentinel is required to do so by applicable law. Notwithstanding the foregoing, DeploySentinel will use its commercially reasonable efforts to provide Customer with prior notice (email sufficient) of any suspension and to work diligently with Customer to resolve the underlying issue.

    2. Customer’s Use of the HyperDX Service.

    1. Customer Account. To use the HyperDX Service in production, Customer must first register for a HyperDX Service account (“Account”). Subject to the security obligations of DeploySentinel set forth in Section 5.1, Customer is responsible for maintaining the security of Customer’s Account (including, but not limited to, login credentials and the correct configuration of access control lists), and remains fully responsible for all acts and omissions that occur under Customer’s Account, including any damages of any kind incurred as a result of such acts or omissions. Customer agrees to promptly notify DeploySentinel of any unauthorized use of its Account, or any other breaches of security related to Customer’s Account, of which Customer becomes aware.

    2. Authorized Users. Customer’s Affiliates and contractors (“Authorized Users”) are also permitted to use the HyperDX Service during the Term, provided that such use must be solely for the benefit of Customer, and Customer shall be responsible for all acts and omissions of Authorized Users in connection with their use of the HyperDX Service, including any use of the HyperDX Service by Authorized Users that is contrary to the terms and conditions of this Agreement.

    3. Restrictions on Use of the HyperDX Service. Customer shall not: (i) modify, make derivative works of, disassemble, decompile or reverse engineer the HyperDX Service or any component thereof; (ii) access or use, or allow any other party to access or use, the HyperDX Service for purposes of monitoring its availability or functionality for the purpose of designing and/or developing, in part or in whole, any competitive products or services; (iii) except for Authorized Users, make its access to the HyperDX Service available to any third party; (iv) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, the HyperDX Service; (v) use the HyperDX Service to process any protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996) without first entering into a BAA with DeploySentinel; (vi) use the HyperDX Service to store or process any classified information (i.e., information given a security classification by a government body and protected against unauthorized disclosure under applicable law) or data subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State; (vii) use the HyperDX Service for High Risk Activities, or (viii) otherwise use the HyperDX Service in violation of the Acceptable Use Policy.

  2. Plan Purchases; Payment; Taxes and Disputes

    1. Monthly Plans. Provided that you have supplied DeploySentinel with a valid credit card, you may use the HyperDX Service month-to-month at your chosen tier. You will be billed the then-current monthly fee for the applicable tier at the start of each monthly cycle. The applicable Storage Allotment will be made available to you in each month to store your Content.

    2. Term Plans. As an alternative to using the HyperDX Service month-to-month as set forth in Section 2.1 above, you may, through (i) the execution of one or more Order Forms with DeploySentinel or (ii) issuance by Customer of a Qualifying PO, which will be deemed to constitute, for the purposes of this Agreement, the execution by Customer of the Order Form referenced in the applicable Qualifying PO, prepay fees for use of the HyperDX Service at your chosen tier for the Order Form Term specified on such Order Form (“Term Plan”). The applicable Storage Allotment will be made available to you in each month of the Order Form Term to store your Content.

    3. Exceeding Storage Allotments. If Customer exceeds its Storage Allotment in a given month, Customer will be charged for the incremental usage at the same unit price(s) per Storage Dimension set forth on the Order Form or otherwise at then-current list prices, and Customer will be billed for such usage monthly in arrears, provided that DeploySentinel may bill you more frequently for fees accrued if DeploySentinel reasonably believes there is a risk of non-payment.

    4. Unused Storage Allotments. Unused portions of a Storage Allotment in a given month do not carry over to any subsequent month.

    5. Payment. DeploySentinel will invoice Customer for the fees due under each Order Form or otherwise under this Agreement and, subject to Section 2.7 below, Customer will pay such fees within thirty (30) days after receipt of an applicable invoice. All invoices will be paid in U.S. dollars. Payments will be made without right of set-off or chargeback. Except as otherwise expressly provided in this Agreement, any and all payments made by Customer pursuant to this Agreement or any Order Form are non-refundable, and all commitments to make any payments hereunder or under any Order Form are non-cancellable.

    6. Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value added and excise taxes levied upon the delivery or use of the taxable components, if any, of any Term Plans purchased by Customer under this Agreement (collectively, “Taxes”). Taxes do not include any taxes on the net income of DeploySentinel or any of its Affiliates. Unless Customer provides DeploySentinel a valid state sales/use/excise tax exemption certificate or Direct Pay Permit and provided that DeploySentinel separately states any such taxes in the applicable invoice, Customer will pay and be solely responsible for all Taxes. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the HyperDX Service under this Agreement, Customer shall increase the sum paid to DeploySentinel by an amount necessary for the total payment to DeploySentinel to equal the amount originally invoiced.

    7. Payment Disputes. Customer has thirty (30) days from receipt of an invoice from DeploySentinel to dispute such invoice by providing written notice to DeploySentinel stating the good faith basis for such dispute, and DeploySentinel agrees not to exercise its contractual remedies in connection with Customer’s failure to pay any amount that is disputed by Customer in good faith within such thirty (30) day period. The parties agree to work in good faith to resolve any such payment dispute, provided that if any such dispute is not resolved within thirty (30) days of the receipt by DeploySentinel of a dispute notice, and notwithstanding the foregoing sentence, each party shall be free to pursue any remedies available under this Agreement, in equity or at law.

    8. Purchases Through Resellers. The parties agree that Customer may purchase Term Plans through Resellers, the use of which are subject to this Agreement. Orders purchased through a Reseller, including multi-year commitments, are not subject to cancellation by Customer. Where Customer purchases a Term Plan through a Reseller, the Reseller will enter into an Order Form with DeploySentinel for the purchase of the Term Plan that references this Agreement and shows Customer as the “ship to” party and Reseller as the “bill to” party, and Reseller and Customer will enter into a separate agreement setting forth the fees to be paid by Customer to Reseller for such Term Plan, as well as any other terms or conditions that apply between them. DeploySentinel hereby agrees that, subject to receiving payment from the Reseller, it shall be responsible to Customer, pursuant to the terms and conditions of this Agreement, for providing the HyperDX Service under any such Order Form. Customer hereby acknowledges that DeploySentinel will not be responsible for the obligations of any Reseller to Customer under such separate agreement, for the acts or omissions of Reseller, or for any third-party products or services furnished to Customer by any Reseller. For the avoidance of doubt, Sections 2.5, 2.6 and 2.7 above will be of no effect where Customer purchases a Term Plan through a Reseller, as payment and taxes will be addressed in the agreement between Reseller and Customer.

  3. Support Services

Support Services are provided on a good faith effort basis, with no guaranteed response or resolution times. Any Support Services provided by DeploySentinel shall be solely for Customer’s internal use in connection with the use of the HyperDX Service under this Agreement and may not be used in connection with your use of DeploySentinel software licensed under any other license, including without limitation any open source or source available license. In addition, Customer agrees to not use the Support Services to supply any consulting, support or training services regarding the HyperDX Service to any third party other than Authorized Users.

  1. Intellectual Property Rights

    1. HyperDX Service. This Agreement grants Customer a limited right to use the HyperDX Service. Nothing in this Agreement shall be understood to transfer from DeploySentinel to Customer any intellectual property rights, and all right, title and interest in and to the HyperDX Service will remain (as between the parties) solely with DeploySentinel or its third-party suppliers. The DeploySentinel trademarks, service marks, graphics and logos used in connection with the HyperDX Service are trademarks or registered trademarks of DeploySentinel or DeploySentinel’s third party suppliers. Other trademarks, service marks, graphics and logos used in connection with the HyperDX Service may be the trademarks of other third parties. DeploySentinel grants to Customer no right or license to reproduce, or otherwise use any DeploySentinel or third-party trademarks under this Agreement.

    2. Usage Data. DeploySentinel collects tracking and operational data related to Customer’s use of the HyperDX Service, including query logs, metadata (object definitions and properties) and feature usage information (“Usage Data”). For the avoidance of doubt, Usage Data does not include any Confidential Information (including Content) of Customer. DeploySentinel owns all right, title and interest in and to Usage Data, which it reproduces, analyzes, modifies and adapts to provide, maintain, protect and improve the HyperDX Service.

    3. Customer Content. As between DeploySentinel and Customer, Customer owns all rights, title and interest in and to the Content, including all intellectual property rights therein and thereto. By submitting Content to DeploySentinel, Customer hereby grants DeploySentinel a sublicensable, worldwide, royalty-free, and non-exclusive right to process the Content solely for the purpose of enabling DeploySentinel to provide Customer with the HyperDX Service and Support Services, to prevent or address service or technical problems, or as otherwise may be required by law. If Customer wishes to delete Content from Customer’s Account, DeploySentinel will use reasonable efforts to remove it, but Customer acknowledges that backups, caching or references to the Content may not be made immediately unavailable.

    4. Feedback. Customer, Customer’s Affiliates, and their respective agents, may volunteer feedback to DeploySentinel, and/or its Affiliates, about the HyperDX Service (“Feedback”). DeploySentinel and its Affiliates shall be irrevocably entitled to use that Feedback, for any purpose and without any duty to account, provided that, in doing so, they may not breach their obligations of confidentiality under Section 6 of this Agreement.

  2. Security; Customer Content and Data Processing

    1. DeploySentinel Security. DeploySentinel will implement reasonable and appropriate security measures for the HyperDX Service, in accordance with the DeploySentinel Security Standards, that are designed to protect Content against unauthorized access, modification, destruction or disclosure. DeploySentinel may modify the DeploySentinel Security Standards from time to time, but will continue to provide at least the same level of security as is described in the DeploySentinel Security Standards as of the Effective Date.

    2. Customer Responsibility for Content and Content Retrieval. Customer is fully responsible for its Content, including for the content, accuracy and completeness of the Content, and any loss, liabilities or damages resulting therefrom. Customer is solely responsible for backing up or otherwise making duplicates of its Content. Customer is solely responsible for verifying that its use, and that of its Authorized Users, of the HyperDX Service complies with any requirements under applicable law or regulation governing access to or use of the Content. Customer is solely responsible for deleting or retrieving Content from the HyperDX Service prior to termination or expiration of this Agreement.

    3. Data Processing. The parties agree to comply with the DPA.

    4. Reserved.

  3. CONFIDENTIAL INFORMATION

    1. Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature (“Confidential Information”). Confidential Information includes materials and all communications concerning DeploySentinel's or Customer's business and marketing strategies, including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with the HyperDX Service, anything provided by either party to the other in connection with the HyperDX Service and/or Support Services provided under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party. Content will be deemed Confidential Information of Customer without specific designation. The HyperDX Service and Support Services will be deemed Confidential Information of DeploySentinel without specific designation.

    2. Non-use and Non-disclosure. The parties shall at all times, both during the Term and thereafter, keep in trust and confidence all Confidential Information of the other party, using the same degree of care that the receiving party uses to protect its own Confidential Information of a similar nature or value, but in no event less than commercially reasonable care, and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than to Affiliates or as necessary to carry out its duties under this Agreement without the other party's prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.

    3. Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party's breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party's possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.

    4. Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, referral partners involved in an applicable transaction, accountants, attorneys and Affiliates pursuant to the terms of a non-disclosure or confidentiality agreement. 

    5. Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party's Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party's cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party's Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.

  4. Representations, Warranties and Disclaimer of Warranties

    1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) it is a duly organized, validly existing, and in good standing as may be required under the laws of the jurisdiction of its organization; (ii) it has the full right, power, and authority to enter into, and perform its obligations under, this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement and/or on an Order Form (as applicable) has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

    2. Support Services Warranty. DeploySentinel warrants that it will perform the Support Services in a professional, workmanlike manner, consistent with generally accepted industry practice, and in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, DeploySentinel’s sole obligation, and Customer’s exclusive remedy, shall be for DeploySentinel to re-perform the applicable Support Services.

    3. HyperDX Service Performance Warranty. DeploySentinel warrants that during the Term, the HyperDX Service will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, DeploySentinel’s sole obligation, and Customer’s exclusive remedy shall be for DeploySentinel to (i) correct any failure(s) of the HyperDX Service to perform in all material respects in accordance with the Documentation or (ii) if DeploySentinel is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, Customer may elect to terminate the applicable Order Form and DeploySentinel will promptly refund to Customer any pre-paid, unused fees paid by Customer to DeploySentinel under such Order Form.

    4. Warranty Exclusions. The warranty set forth in the foregoing Section 7.3 does not apply: (i) to any trial use of the HyperDX Service, (ii) to any non-production features of the HyperDX Service (as may be designated by DeploySentinel from time to time), (iii) if the HyperDX Service or any portion thereof has not been configured in accordance with the Documentation or has not been used in accordance with this Agreement and/or (iv) any bug, defect or error caused by or attributable to software or hardware not supplied by DeploySentinel. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to DeploySentinel during the applicable Order Form Term.

    5. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7.2 AND 7.3, THE HYPERDX SERVICE AND THE SUPPORT SERVICES ARE PROVIDED WITHOUT FURTHER WARRANTY OF ANY KIND AND DEPLOYSENTINEL HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE HYPERDX SERVICE, AND/OR THE SUPPORT SERVICES OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DEPLOYSENTINEL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE HYPERDX SERVICE AND THE SUPPORT SERVICES AND ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT THE HYPERDX SERVICE AND THE SUPPORT SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN HIGH RISK ACTIVITIES.

  5. Indemnification

    1. DeploySentinel Obligations. DeploySentinel will, at its expense, defend or settle any Infringement Claim and will indemnify Customer against and pay (i) any settlement of such Infringement Claim consented to by DeploySentinel or (ii) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim. DeploySentinel shall not enter into any settlement agreement with respect to an Infringement Claim if such settlement agreement requires any admission of liability or wrongdoing on the part of Customer or imposes on Customer any obligation other than the obligation to cease using the HyperDX Service or Support Services that are subject to the Infringement Claim, unless Customer has first consented in writing to the applicable terms of such settlement agreement that are in conflict with the foregoing limitations.

    2. Exclusions. DeploySentinel will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) use of the HyperDX Service other than in accordance with the terms and conditions of this Agreement, or (ii) the combination, operation, or use of the HyperDX Service with any other applications, portions of applications, products or services not provided by DeploySentinel, where there would be no Infringement Claim but for such combination.

    3. Certain Remedies. If the HyperDX Service is, or in DeploySentinel's reasonable opinion is likely to become, the subject of an Infringement Claim and/or an injunction as the result of an Infringement Claim, DeploySentinel may, at its expense and option: (i) obtain the right for Customer to continue to use the HyperDX Service; (ii) modify the HyperDX Service to make it non-infringing, but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are, in DeploySentinel's reasonable judgement, commercially reasonable options, terminate Customer's right to use the HyperDX Service, in which case DeploySentinel will promptly refund to Customer any pre-paid unused fees.

    4. Obligations of Customer. Except with respect to a matter addressed under Section 8.1 of this Agreement, Customer will, at its expense (i) defend, or at its option settle, but subject to DeploySentinel's prior written consent, not to be unreasonably withheld, a claim brought against DeploySentinel, its contractors, suppliers, licensors, and or respective directors, officers, employees and agents, arising out of or related to Customer's use of the HyperDX Service in violation of applicable law or which results in the alleged infringement of the intellectual property rights of any third party, and (ii) indemnify DeploySentinel against and pay (1) any settlement of such claim or (2) any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.

    5. Conditions. The obligations of the parties in this Section 8 are conditioned upon the indemnified party (“Indemnitee”) (i) notifying the indemnifying party (“Indemnitor”) promptly in writing of any threatened or pending claim for which indemnification is being sought (“Claim”), provided that failure to provide such notice will only relieve Indemnitor of its obligations under this Section 8 to the extent its ability to defend or settle an applicable Claim is materially prejudiced by such failure to provide notice, (ii) giving Indemnitor, at Indemnitor's expense, reasonable assistance and information requested by Indemnitor in connection with the defense and/or settlement of the Claim and (iii) tendering to Indemnitor sole control over the defense and settlement of the Claim. Indemnitee's counsel will have the right to participate in the defense of the Claim, at Indemnitee's own expense. Indemnitee will not, without the prior written consent of Indemnitor, make any admission or prejudicial statement, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim.

    6. Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DEPLOYSENTINEL, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, OR TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT, OR MISAPPROPRIATION OF ANY TRADE SECRET, BY THE HYPERDX SERVICE AND/OR THE SUPPORT SERVICES.

  6. Limitation of Liability

    1. Excluded Damages. IN NO EVENT SHALL CUSTOMER OR DEPLOYSENTINEL, OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    2. Damages Caps. EXCEPT WITH RESPECT TO (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER (EXCLUDING A BREACH GIVING RISE TO A SECURITY INCIDENT), (II) THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, (III) BREACHES ARISING OUT OF GROSS NEGLIGENCE OR WILFULL MISCONDUCT, (IV) VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, (V) FEES OWED BY CUSTOMER TO DEPLOYSENTINEL UNDER THIS AGREEMENT, (VI) CUSTOMER’S VIOLATIONS OF ITS OBLIGATIONS UNDER SECTION 1.2.3 AND (VII) SECURITY INCIDENTS, IN NO EVENT SHALL EITHER PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO DEPLOYSENTINEL UNDER AN APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING SENTENCE, THE TOTAL LIABILITY OF DEPLOYSENTINEL TO CUSTOMER RELATED TO OR ARISING OUT OF ANY TRIAL OR OTHER NON-PAID USE OF THE HYPERDX SERVICE, OR THE USE OF ANY NON-PRODUCTION FEATURES OF THE HYPERDX SERVICE, SHALL NOT EXCEED $10,000.

    3. Enhanced Damages. NOTWITHSTANDING SECTION 9.2 ABOVE, DEPLOYSENTINEL’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT RELATED TO OR ARISING FROM A SECURITY INCIDENT SHALL NOT EXCEED THE GREATER OF $100,000 OR TWO TIMES THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO DEPLOYSENTINEL UNDER AN APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO THE SECURITY INCIDENT.

  7. TERM AND TERMINATION

    1. Order Form Term. Any Order Form entered into by the parties will commence upon the start date set forth therein, and will expire on end date set forth therein (“Order Form Term”).

    2. Agreement Term. This Agreement will commence upon the Effective Date and continue for so long as you are using the HyperDX Service (“Term”).

    3. Termination. Either party may terminate this Agreement (and any active Order Form) upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Termination of this Agreement in accordance with the foregoing sentence will automatically terminate any existing Order Forms. In addition, either party may terminate this Agreement upon written notice to the other party if no Order Form is or will be active under the Agreement on the effective date of such termination.

    4. Survival. Upon the termination of this Agreement, (i) Customer shall have no further rights hereunder to use the HyperDX Service; and (ii) the provisions of Sections 2, 4, 6, 7, 8, 9, 10.4, and 11 of this Agreement will survive such expiration or termination.

  8. GENERAL

    1. Anti-Corruption. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti-Corruption Laws”). Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this Agreement.

    2. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party's assets. Any assignment in violation of this Section shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.

    3. Attorneys' Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, “prevailing party” includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.

    4. Customer Identification. Customer agrees that DeploySentinel may identify Customer as a user of the HyperDX Service on its website, through a press release issued by DeploySentinel and in other promotional materials and may use Customer’s name, logo, trademarks and service marks in connection with such activities.

    5. Export Control and Sanctions Compliance. Customer acknowledges that the HyperDX Service and the Support Services and technologies related thereto are subject to the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774 (2010)) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control. Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any DeploySentinel goods, software or technology or disclose any DeploySentinel software or technology to any person contrary to such laws or regulations. Customer acknowledges that remote access to the HyperDX Service may in certain circumstances be considered a re-export of the HyperDX Service, and accordingly, may not be granted in contravention of U.S. export control laws and regulations.

    6. Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party's reasonable control.

    7. Future Features and Functions. Customer understands and agrees that any features or functions of the HyperDX Service referenced on any DeploySentinel website, or in any presentations, press releases or public statements, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for the HyperDX Service remains at DeploySentinel's sole discretion. Accordingly, Customer agrees that it is purchasing the HyperDX Service based solely upon features and functions that are currently available as of the Effective Date, and not in expectation of any future feature or function.

    8. Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if that court lacks subject matter jurisdiction, in any Delaware State Court located in New Castle County, Delaware. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense. A breach or threatened breach, by either party of Section 6 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.

    9. Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party's right to assert or rely upon such provision, right or remedy in that or any other instance.

    10. Notices. Any notice or other communication under this Agreement shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail. Notices for DeploySentinel will be sent to legal@clickhouse.com. Notices to Customer will be sent to the e-mail address provided by Customer when registering for an Account. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address or e-mail addresses for notices by giving the other party notice of the change in accordance with this Section.

    11. Relationship of the Parties. The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.

    12. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.

    13. Entire Agreement; Amendment. This Agreement and the DPA where applicable, which is hereby incorporated herein by this reference, constitutes the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Execution of a scanned copy will have the same force and effect as execution of an original, and a scanned signature will be deemed an original and valid signature. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. or equivalent laws in other jurisdictions (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. In the event of any conflict between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) an applicable DPA, (ii) an applicable Order Form (but only for the transaction thereunder), and (iii) this Agreement. By entering into this Agreement, whether prior to or following receipt of any Customer purchase order or similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and DeploySentinel's performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement, nor (iii) an agreement to amend this Agreement. DeploySentinel may modify this Agreement from time to time by posting a modified version, and any such modifications will be effective thirty (30) days after the date of update stated in the modified Agreement. If Customer does not agree to the modifications, it must stop using or accessing the HyperDX Service. Customer’s continued use and access will be deemed acceptance of the modified Agreement.  The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations. Therefore, the rule of construction that any ambiguity shall apply against the drafter is not applicable and will not apply to this Agreement. Any ambiguity shall be reasonably construed as to its fair meaning and not strictly for or against one party regardless of who authored the ambiguous language.

 

Definitions

Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.

“Acceptable Use Policy” means the acceptable use policy located at: https://clickhouse.com/legal/agreements/acceptable-use-policy (opens in a new tab), with references to “ClickHouse” deemed to mean DeploySentinel, and the term “Services” deemed to include the HyperDX Service.

“Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.

“DeploySentinel Security Standards” means the security standards set forth in the DeploySentinel Security Addendum located at: https://www.hyperdx.io/terms/security (opens in a new tab)/.

“Content” means any and all information, content and data ingested into the HyperDX Service by Customer and/or its end users.

“Documentation” means the end user documentation for the HyperDX Service published at https://www.hyperdx.io/docs (opens in a new tab).

“DPA” means the DeploySentinel Customer Data Processing Addendum located at: https://www.hyperdx.io/terms/dpa (opens in a new tab).

“Effective Date” means the date on which this Agreement is fully executed.

“High Risk Activities” means activities where the use or failure of the HyperDX Service would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).

“Infringement Claim” means a claim brought against Customer by an unaffiliated third party alleging that Customer's use of the HyperDX Service in accordance with this Agreement, during the applicable Term, infringed such party's patent, copyright or trademark, or made unlawful use of such party's trade secret.

“Order Form” means an ordering document provided by DeploySentinel pursuant to which Customer, or a Reseller acting on Customer's behalf, purchases Term Plans under this Agreement.

“Qualifying PO” means a purchase order issued by customer for the purpose of purchasing Term Plans, which (i) references the number of an applicable Order Form provided to Customer by DeploySentinel and (ii) clearly states the purchase order is subject to the terms and conditions of this Agreement.

“Reseller” means a third party authorized by DeploySentinel to promote and resell the HyperDX Service.

“Security Incident” means DeploySentinel’s breach of Section 5.1 (DeploySentinel Security), Section 5.3 (Data Processing), or a breach of Section 6.2 (Non-use and Non-disclosure), which breach results in the unauthorized disclosure of Content.

“Storage Allotment” means, for an applicable tier, the amount of data storage (in units of the relevant Storage Dimension(s)) that is allocated to Customer each month in connection with its use of the HyperDX Service.

“Storage Dimension” means the dimension(s) of data storage that is metered with use, or allocated for potential use, of the HyperDX Service, as specified at https://www.hyperdx.io/pricing (opens in a new tab).

“Support Services” means maintenance and support services for the HyperDX Service, as more fully described in Section 3.