These Terms of Service are between Edgio, Inc., its Affiliates and subsidiaries, (together, “Edgio”) and the other signatory to the applicable Order Form (“Customer”). The parties agree as follows:
The following capitalized terms have the corresponding meanings, as set forth below. Capitalized terms used in these Terms of Service without definition have the meanings assigned to them in the Invoicing Methodologies Summary or the applicable Order Form.
“Acceptable Use Policy” means Edgio’s Acceptable Use Policy, which is incorporated by reference herein.
“Affiliate” means any entity controlling or controlled by or under common control with a party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity.
“Invoicing Methodologies Summary” means Edgio’s Invoicing Methodologies Summary, containing descriptions of how Edgio determines usage and calculates Fees, which is incorporated by reference herein.
“Content” means all data, regardless of format or owner (including, but not limited to, content, websites, applications, code and the like), provided or identified to Edgio to be sent or received using the Services or in connection with implementing, deploying or maintaining a Project, and content hosted, stored, or cached by Edgio at the direction of Customer or its Affiliates, agents, customers, or end-users.
“Data Protection Addendum” or “DPA” means Edgio’s Data Protection Addendum, which is incorporated by reference herein.
“Documentation” means the documentation made available by Edgio that describes the features, functionality, performance and implementation requirements or recommendations, if any, for the Services or Project.
“Order Form” means an order form fully executed by the parties, evidencing the Services ordered by Customer.
“Operative Documents” means the Order Form(s), the Service Level Agreement(s), the Invoicing Methodologies Summary, the Data Protection Addendum, and the Acceptable Use Policy.
“Project” means the version of a Customer website deployed using the Services, as identified in an Order Form.
“Service Level Agreement” or “SLA” means the Service Level Agreement(s) applicable to the Services ordered by Customer that defines the service levels.
“Services” means the particular Edgio services ordered by Customer, as set forth on an Order Form.
A Customer may order Services from Edgio pursuant to an Order Form for itself and on behalf of one or more of its Affiliates, subject to these Terms of Service. A particular Order Form is binding when signed by both parties, and is effective the first day of the month thereafter, unless otherwise set forth in the Order Form (the “Effective Date”). Edgio may, in its sole discretion, utilize third parties in providing Services, provided that Edgio remains responsible for its compliance with this Agreement. Notwithstanding the foregoing, Edgio solely warrants that the Services will be provided at the levels specified in the applicable Service Level Agreement, if any. Customer’s sole and exclusive remedy with respect to such warranty, as well as any interruption, suspension, failure, defect, impairment or inadequacy of the Service, is specified in the Service Level Agreement.
Customer will use the Services, and will deploy any Project, if applicable, according to the Documentation. Customer will comply with Edgio’s Acceptable Use Policy. Unless expressly permitted in writing by Edgio, Customer will not resell the Services (whether for a fee or gratis), in whole or in part, to any third party. The immediately preceding sentence does not prevent Customer from providing public or private access to end-users to its website. Neither these Terms of Service nor any of the Operative Documents establish any third party beneficiaries or third party rights.
Customer will pay all Fees and charges for Services as specified on the Order Form. Regardless of the actual Usage of Services, all payment obligations are committed for the Term (as defined below) and non-cancelable, and all amounts paid are nonrefundable. Payment terms are net 30 days from the invoice date, without offsets or deductions of any kind, and payment is due in the currency set forth on the Order Form. If Customer believes, in good faith, that Customer’s invoice is incorrect, Customer must give Edgio written notice within 30 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit for the disputed amount. Such notice must contain a detailed description of the Fees and charges in question and the good faith basis for disputing such amounts. Customer agrees to promptly remit payment for all other amounts and irrevocably waives its right to challenge any amount not disputed during such 30-day period. Nothing in this section will be deemed to limit Edgio’s right to seek judicial intervention at any time regarding any such disputed amount.
Edgio may assess interest on any past due balances at the rate of 1 1/2% per month, or the maximum rate allowed by law, whichever is less. In addition to any other rights granted to Edgio herein, Edgio reserves the right to suspend or terminate Customer’s access to the Services if Customer’s account becomes delinquent. Customer agrees to pay all reasonable costs and attorneys’ fees incurred by Edgio with respect to collecting any past due balance. Any amount disputed by Customer pursuant to Section 4 (Fees and Payments) that is deemed by a judge or arbitrator to be due and payable to Edgio will be deemed to be past due as of the original due date for purposes of the calculation of interest and eligibility for attorneys’ fees and costs. No endorsement or statement to the contrary on any check or payment, or on any letter accompanying any check or payment, or elsewhere will be construed as an accord or satisfaction. Edgio reserves the right to require payment assurance at any time.
Edgio’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer is responsible for payment of all such taxes, levies, or duties, except for taxes based solely on Edgio’s income. If Edgio has the legal obligation to pay or collect any such amounts for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Edgio with a valid tax exemption certificate authorized by the appropriate taxing authority (along with an English translation, if applicable) covering such amount.
To the extent applicable, Edgio will process any personal data of Customer (as defined by applicable data protection and privacy laws), including that which may be included in Content, in accordance with the Data Protection Addendum.
The initial term of an Order Form will begin on the Effective Date and will continue for the period set forth in the Order Form (“Initial Term”) and will automatically renew for successive periods of equal length, (each, a “Renewal Term”), unless either party notifies the other of its intent not to renew at least 30 days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
A party may terminate these Terms of Service and all outstanding and effective Order Forms if the other party breaches any material term of these Terms of Service and fails to cure such breach within the 30 days following the date of written notice identifying such breach. If the non-breaching party fails to terminate within a reasonable period following such 30-day period, then it will be deemed to have waived its termination right with respect to such uncured breach. Customer will only receive one such cure period per calendar year for a breach based on a past due amount, and such cure must include payment for any accrued interest. If Edgio exercises its termination right for any reason, it will immediately cease to provide Services, and all amounts outstanding under the Order Form(s), including all committed Fees for the remainder of the then-current Initial Term or Renewal Term, as applicable, will become immediately due and payable as of the date of termination. Within the 30 days following termination for any reason or non-renewal by either party, Customer must, at its own expense, remove Content related to the terminated or non-renewed Order Form (“Ineligible Content”) from Edgio's network, by using file transfer methods then-available to Customer for the terminated Services. AFTER SUCH 30-DAY PERIOD, EDGIO WILL DELETE OR OTHERWISE REMOVE ALL INELIGIBLE CONTENT, AND CUSTOMER WILL THEREAFTER HAVE NO RIGHT OR ABILITY TO RETRIEVE SUCH CONTENT AND EDGIO WILL HAVE NO RESPONSIBILITY OR LIABILITY ASSOCIATED WITH SUCH CONTENT.
TO THE EXTENT NOT PROHIBITED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2 (ORDER FORM AND ACCESS TO SERVICES), THE SERVICES ARE PROVIDED “AS IS,” AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR SECURITY. EDGIO DOES NOT WARRANT THAT THE SERVICES OR DISPLAY OF PROJECTS WILL BE ERROR FREE, UNINTERRUPTED, WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT CONTENT WILL BE SECURE. THIS DISCLAIMER AND EXCLUSION APPLIES EVEN IF AN EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH IN SECTION 2 (ORDER FORM AND ACCESS TO SERVICES), OR ELSEWHERE, FAILS ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF EDGIO IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY THAT IS NOT EXPLICITLY STATED IN SECTION 2 (ORDER FORM AND ACCESS TO SERVICES).
Except for the limited rights expressly granted in these Terms of Service, neither party transfers or otherwise licenses to the other party any technology, software, or other intellectual property rights. Customer retains all right, title, and interest in and to Content. Content will not be deemed part of any Services by virtue of being located on or served from Edgio servers.
Edgio does not control and has no liability for any third-party products, platforms or tools, including their security, functionality, operation, availability or interoperability that Customer chooses to use in connection with the Services or display of any Projects. Any use of third-party products, platforms or tools is governed by Customer’s agreement with such third-party provider, or, if applicable, such third-party open source license.
Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the Services and only during the Term. Additionally, Customer agrees that, subject to Customer's brand guidelines, Edgio may include Customer name and logo in lists of other customers of the Services, on its website and in Edgio's marketing presentations. If requested, Customer will work in good faith with Edgio to develop and release one public communication about Customer's use of the Services, subject to Customer's prior written approval. Any other use of a party’s Brands requires such party’s prior written consent.
If the parties are subject to an effective nondisclosure or confidentiality agreement with rights and obligations at least as favorable to Edgio as this section, then that agreement will be deemed to supersede in its entirety the language of this section until such time as that agreement no longer applies to the then-current exchange of information. “Confidential Information” is non-public information that includes, but is not limited to, the terms of these Terms of Service, any Order Form, and any Service Level Agreement; information concerning a party’s (the “Disclosing Party”) pricing terms, operations, methods of doing business, technologies, technical designs, research and development, know-how, trade secrets, software source code, computer programs, algorithms, technical specifications and data, testing and bench-marking procedures and results, customers, personnel, financial information and other confidential or proprietary information belonging to or provided by or on behalf of the Disclosing Party, or information the party receiving such information (the “Receiving Party”) should reasonably know is confidential to the Disclosing Party. The term “Confidential Information” as used in this section does not include information that (i) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its directors, officers, employees, agents, contractors or advisors (“Representatives”); (ii) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided such source is not bound by a confidentiality obligation with the Disclosing Party; or (iii) was within the Receiving Party's possession prior to it being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided the source of such information was not bound by a confidentiality obligation owed to the Disclosing Party with respect thereto. Each party agrees that it will not use, modify, copy, or disclose to any third party Confidential Information, except in furtherance of the relationship between the parties or as required by law. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Representatives solely as necessary to meet their obligations under these Terms of Service. The Receiving Party will also ensure that all Representatives are aware of the confidential and/or proprietary nature of the Confidential Information and have themselves an obligation of confidentiality, providing no less restrictive and substantially the same protections as are provided under these Terms of Service. The Receiving Party will take measures to protect Confidential Information at least as stringent as those measures that it takes to protect the confidentiality and security of its own confidential information of a similar nature, but in no event will the Receiving Party use less than reasonable care.
Edgio agrees to indemnify and defend Customer against any and all third-party claims, liabilities, costs and expenses, including reasonable attorneys’ fees, for claims based on allegations that a Service directly infringes an issued patent or other intellectual property right under the laws of a country in which such Service is actually provided to Customer (a “Customer Claim”). Notwithstanding the foregoing, Edgio will have no obligation hereunder if the Customer Claim is based on: (i) use of a Service in conjunction or combination with one or more products or services not provided by Edgio to Customer; or (ii) use of a Service or software in a fashion other than as set forth in the Documentation or in the Operative Documents, as applicable.
Edgio is only liable to indemnify Customer so long as: (i) Customer gives written notice to Edgio within 20 days from the date Customer first receives notice of the Customer Claim; (ii) Edgio is allowed to control the defenses of the Customer Claim using legal counsel of its choice; (iii) Customer cooperates and assists Edgio in investigating and defending such Customer Claim when Edgio makes reasonable requests for cooperation and assistance; and (iv) Edgio is allowed to enter into an agreement to settle the Customer Claim without prior Customer consent. Notwithstanding Edgio’s ability to settle the Customer Claim, Customer will have the right to approve any non-monetary settlement that involves a Customer commitment, and Customer will not unreasonably withhold, condition or delay that approval. Customer will have the right to control the defense of the Customer Claim only if Edgio does not give written notice to Customer within 30 days from the date it receives notice from Customer of the Customer Claim that it will assume that defense.
If any Service(s) becomes the subject of a Customer Claim under this section, or in Edgio’s opinion is likely to become the subject of such a Customer Claim, then Edgio may, at its option, either (i) replace or modify the alleged infringing Service(s) to make it/them non-infringing, while maintaining reasonably equivalent functionality; (ii) procure for Customer the right to continue using the alleged infringing Service(s) pursuant to these Terms of Service; or (iii) at Edgio’s sole option, terminate these Terms of Service and any outstanding Order Forms with respect to the allegedly infringing Service on 30 days’ written notice with both parties having no further obligations to the other, other than the respective party’s obligations under this section.
As between Customer and Edgio, Customer is responsible for its Content, which includes but is not limited to: maintaining backups; providing services and maintenance; and implementing and maintaining measures to keep the Content secure from unauthorized access (such as encryption). Customer represents and warrants that it owns all right, title and interest in the Content, or possesses the necessary rights and consents to permit the Content to be stored, sent or received using the Services, or displayed in the Project. Customer warrants that its use of the Services will not violate any applicable law, rule or regulation including without limitation any data security, data privacy or export compliance law or regulation, breach an agreement with, or infringe the copyright or other intellectual property rights of a third party. Customer assumes all responsibility for implementation of the Services (or cooperating with Edgio to implement the Services) in accordance with the Documentation, and for modifying (or its failure to modify) its Content identifiers consistent with the Documentation. Each of the covenants, representations and warranties in this paragraph is a material term of these Terms of Service.
Customer agrees to indemnify and defend Edgio against any and all third-party claims, liabilities, costs and expenses, including reasonable attorneys’ fees, and fines imposed by governmental or regulatory or any other authorities, based on claims relating to any Content, access to and use of Projects, operation of Customer’s websites or applications (including any activities or aspect of commerce conducted thereon), breach by Customer of Section 3 (Use of Services), breach by Customer of the representations, warranties and covenants in the immediately preceding paragraph or any violation of applicable law, rule or regulation by Customer (a “Edgio Claim”). Customer is only liable to indemnify Edgio so long as: (i) Edgio gives written notice to Customer within 20 days from the date Edgio first receives notice of the Edgio Claim; (ii) Customer is allowed to control the defenses of the Edgio Claim using legal counsel of its choice; (iii) Edgio cooperates and assists Customer in investigating and defending such Edgio Claim when Customer makes reasonable requests for cooperation and assistance; and (iv) Customer is allowed to enter into an agreement to settle the Edgio Claim without prior Edgio consent. Notwithstanding Customer’s ability to settle the Edgio Claim, Edgio will have the right to approve any non-monetary settlement that involves a Edgio commitment, and Edgio will not unreasonably withhold, condition or delay that approval. Edgio will have the right to control the defense of the Edgio Claim only if Customer does not give written notice to Edgio within 30 days from the date it receives notice from Edgio of the Edgio Claim that it will assume that defense.
EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 14 (CONFIDENTIALITY) AND CUSTOMER’S OBLIGATIONS UNDER SECTION 3 (USE OF SERVICES), IN NO EVENT IS EITHER PARTY LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, CONTENT OR BUSINESS INFORMATION, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY.
WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LIABILITY FOR ALL CLAIMS UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE (INCLUDING ALL TERMS AND CONDITIONS THAT ARE INCORPORATED HEREIN BY REFERENCE), WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO EDGIO UNDER THESE TERMS OF SERVICE OR ANY OTHER OPERATIVE DOCUMENT DURING THE TWELVE (12) MONTHS PRECEDING THE MOST RECENT CLAIM. THE IMMEDIATELY PRECEDING SENTENCE DOES NOT APPLY TO EITHER PARTY’S CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, OR CUSTOMER’S OBLIGATIONS UNDER SECTIONS 3 (USE OF SERVICES) THROUGH 5 (NON-PAYMENT).
All notices, requests, waivers and other communications made pursuant to these Terms of Service or an Order Form (each, a “Notice”) must be in writing and will be conclusively deemed to have been duly given upon receipt: (i) when hand delivered to the other party; (ii) when sent by U.S. registered or first class mail (receipt requested and postage prepaid); (iii) when sent by a national or international delivery service (delivery confirmation requested, postage prepaid); or (iv) the next business day (according to recipients local time) when sent by electronic mail. Any Notice sent to a party must be sent to the authorized person for such party listed on the Order Form using the listed physical or electronic mailing address, and Edgio legal (email@example.com) must be copied on any Notice sent with respect to Sections 10 (Disclaimer of Warranties) through 17 (Limitation of Liability), 19 (Assignment, Successors), or 21 (Governing Law, Venue) through 29 (Attorneys’ Fees) for such Notice to be valid. Submission by Customer of a service ticket (or so-called “trouble ticket”) does not constitute Notice. Either party may change or supplement the address given under this Section by providing Notice of the new contact person and address in the manner set forth above.
Customer may not assign or delegate, in whole or in part, by operation of law or otherwise, any right, interest or obligation under these Terms of Service or the Operative Documents to any third party (including its Affiliates), without Edgio’s prior written consent. Such consent will not be unreasonably withheld, conditioned or delayed. Any purported assignment or delegation in violation of this section is null and void. Subject to the two immediately preceding sentences, these Terms of Service and the Operative Documents will be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of the parties (if applicable).
Edgio reserves the right to amend these Terms of Service, the Invoicing Methodologies Summary, the Data Protection Addendum, the Service Level Agreement, and the Acceptable Use Policy at any time. Customer will receive 60 days prior written notice of an amendment of these Terms of Service, the Invoicing Methodologies Summary, or the Service Level Agreement; such amendment will become effective at the commencement of the next successive Renewal Term after the expiration of the 60-day notice period. The Order Form may only be amended by a newly issued Order Form, or by a written amendment, signed by both Parties.
These Terms of Service and the Operative Documents are to be construed in accordance with and governed by the internal laws of the State of Arizona, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. All disputes and controversies arising out of or in connection with these Terms of Service or the Operative Documents will be resolved exclusively in the state and federal courts located in Maricopa County in the State of Arizona. Each party agrees to submit to the jurisdiction of such courts and agrees that venue will lie exclusively with such courts.
If any provision or portion of any provision of these Terms of Service or the Operative Documents is held to be invalid, illegal or unenforceable in any respect under any applicable law in any jurisdiction, such provision or portion will be enforced to the maximum extent permissible, and all other provisions shall remain in effect
These Terms of Service and the Operative Documents constitute the entire agreement among the parties with respect to the subject matter hereof and no party shall be liable or bound to any other party in any manner by any warranties, representations, covenants or otherwise, except as specifically set forth in these Terms of Service and the Operative Documents.
In the event of a conflict, the controlling priority of the agreements will be: the Order Form, the Service Level Agreement, these Terms of Service, Invoicing Methodologies Summary, and then the Acceptable Use Policy.
Neither party is responsible for any failure to perform its obligations under these Terms of Service or the Operative Documents if such party is actually prevented from or delayed in performing (the “Prevented Party”) those obligations by an event of force majeure. In any such instance, the Prevented Party must immediately notify the other party giving full particulars of the event of force majeure and the reasons that such event prevents or delays that party from performing its obligations. The Prevented Party must then use commercially reasonable efforts to mitigate the effect of the event of force majeure upon its performance of its obligations. Upon the completion or mitigation of the event of force majeure, the Prevented Party must recommence its performance as soon as reasonably practicable. As used herein, “an event of force majeure” means an event or circumstance that is beyond the control of either party, occurs without the fault or negligence of the Prevented Party, and, through the exercise of reasonable diligence, the Prevented Party was unable to prevent such event or circumstance, including, but not limited to: (i) riot, war (whether or not declared), rebellion, revolution, acts of terrorism, acts of piracy, military insurrection, usurpation of governmental power, or other armed conflict; (ii) contamination by radiation, nuclear fuel or waste, or other materials that create significant risk to human life; (iii) earthquake, flood, fire, tsunami, tornado or other physical natural disaster, but excluding general weather conditions, regardless of severity; (iv) strikes or industrial disputes at a national level; or (v) destruction or extensive damage of factories, colocation centers, or company headquarters.
The Order Form may be executed in two or more counterparts, including counterparts by electronic mail, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument.
The provisions regarding preservation and ownership of intellectual property rights, confidential information, limitations of liability, indemnification, payments owed as of termination or expiration (including the accrual of interest on delinquent amounts), and Sections 19 (Assignment, Successors) through 29 (Attorneys’ Fees) will survive the expiration or termination of these Terms of Service.
Nothing in these Terms of Service or the Operative Documents is intended to, nor shall it be construed to, create any agency, partnership, or joint venture relationship between the parties.
If, in any action at law or in equity (including arbitration), it is necessary to enforce or interpret any of the terms of these Terms of Service, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements, in addition to any other relief that such party may be entitled.