Terms of Service

This AGREEMENT (this "Agreement") governs your ("Customer", "you" or "your") use of the Services (as defined below) offered by StepChange Labs, Inc., a Delaware corporation ("StepChange").

1. PURPOSE; AGREEMENT TO TERMS.

This Agreement provides the terms and conditions pursuant to which StepChange will provide Customer access to its APX software, together with any underlying software, interfaces, technology, user manuals or documentation, any software later developed by StepChange, any related development services and, if included as a part of the Customer's Subscription, supplementary consulting and other professional services (the foregoing collectively, the "Services"). By using the Services, Customer agrees to be bound by this Agreement.

2. SERVICES.

1. Development and Use of the Services. StepChange will use commercially reasonable efforts to develop the Services during the Term of this Agreement and allow Customer access to or use of the Services (or certain features or aspects thereto), as determined by StepChange in its sole discretion. Subject to Customer's compliance with the terms and conditions of this Agreement, StepChange grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 11) right to use and access the Services during the Term for its internal business purposes consistent with in accordance with any documentation or instructions provided by StepChange (the "Documentation").
2. Feedback. Customer will: (i) reasonably cooperate with StepChange to evaluate the Services (including through mutually agreed regular meetings with StepChange) and (ii) work with StepChange to identify and resolve any errors, problems or defects in the Services discovered by Customer or StepChange. All feedback, comments and suggestions for improvements that Customer provides to StepChange hereunder, whether within the Development Period (as defined below) or any other time during the Term, are referred to collectively as "Feedback." Customer hereby irrevocably transfers and assigns to StepChange, and agrees to irrevocably transfer and assign to StepChange, any right, title and interest that it may acquire or possess in and to the Services and any Feedback that Customer provides, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, "Intellectual Property Rights") therein. At StepChange's request, during and after the term of this Agreement, Customer will assist and cooperate with StepChange in all respects (and will cause its employees and subcontractors to assist and cooperate with StepChange in all respects), and will execute documents (and will cause its employees and subcontractors to execute documents), and will take such further acts reasonably requested by StepChange to enable StepChange to acquire, perfect, maintain and enforce StepChange's Intellectual Property Rights in and to the Services or Feedback. Customer hereby appoints the officers of StepChange as Customer's attorney-in-fact to execute documents on behalf of Customer and its employees and subcontractors for this limited purpose, with such power coupled with an interest.
3. Ownership.
   1. StepChange Materials. StepChange reserves and will solely own the Services, and all right, title and interest in and to the Services, the underlying tools, know-how, methodologies, algorithms, models and proprietary information used to provide or power the Services, any aggregate, derivative or usage data collected or generated in connection with the Services in de-identified form, all improvements, derivatives, enhancements and modifications to any of the foregoing, and all intellectual property rights therein (collectively, "StepChange Materials"). All rights not expressly granted hereunder are hereby reserved.
   2. Professional Services. To the extent StepChange performs professional services for Customer pursuant to this Agreement or the Customer's Subscription, the then except as expressly described therein, StepChange will own all right, title and interest in and to any intellectual property rights, work product or other materials generated by or on behalf of StepChange in the performance of such professional services, excluding any Customer Materials therein.
   3. Customer Materials. Customer will own and retain all right, title, and interest to any data, information, software, systems, materials and other content provided by Customer to StepChange in connection with Customer's use of the Services, or otherwise transmitted or stored through the Services, including without limitation, read-only access to the Customer's Datadog environment, Sentry environment, Postgres statistics and access to Customer's GitHub source code (collectively, "Customer Materials"). For clarity, "Customer Materials" excludes Feedback. StepChange may use and modify the Customer Materials solely in connection with the provision, operation, and improvement of the Services and to create aggregate and derivative data solely in de-identified form.
   4. Use Restrictions; Authorized Users. StepChange reserves all rights not expressly granted to Customer hereunder other than as expressly set forth in Section 2(a). Customer will not and will not permit any person or entity to, directly or indirectly, (i) use the Services in any manner or for any purpose that infringes, misappropriates, or violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law; (ii) reverse engineer, decompile, disassemble or modify the Services or authorize a third party to do any of the foregoing; (iii) distribute, sell, sublicense or otherwise transfer the Services; or (iv) use the Services or any other Confidential Information for benchmarking or competitive analysis, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services. Customer will not allow any person or entity to use the Services other than its employees or individual contractors that it authorizes to use the Services on its behalf ("Authorized Users"). Customer may permit Authorized Users to use the Services, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Services and their compliance with the terms and conditions of this Agreement. Customer will reproduce all StepChange's and its licensors' copyright notices and any other proprietary rights notices on all aspects of the Services that Customer makes hereunder.
   5. Third Party Resources. The Services may allow Customer to access third-party websites or other resources which may be subject to additional terms and conditions. Such third-party agreements are between Customer and the applicable third party, and StepChange is not a party to such agreements. StepChange provides access only as a convenience and is not responsible for the content, products or services on or available from such resources. Customer acknowledges sole responsibility for and assume all risk arising from, its use of any third-party resources.

3. SUBSCRIPTIONS.

1. General. StepChange requires payment of a fee for use of the Services (or certain portions thereof) and you agree to pay such fees. You may purchase a subscription ("Subscription") in connection with your access to and use of the Services. When you purchase a Subscription (the initial Subscription purchase and the subsequent monthly fees, each, a "Transaction"), you expressly authorize StepChange (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification ("Payment Information"). You agree that StepChange may keep such Payment Information on-file for subsequent Transactions, and you represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. All payments for Transactions are non-refundable and non-transferable except as expressly provided in this Agreement. All fees and applicable taxes, if any, are payable in United States dollars.
2. Subscriptions. If you purchase a Subscription, you will be charged the monthly Subscription fee, plus any applicable taxes, and other charges ("Subscription Fee"), at the beginning of your Subscription and each month thereafter, at the then-current Subscription Fee. By purchasing a Subscription, you authorize StepChange to initiate recurring non-refundable payments as set forth below. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month on the anniversary of the commencement of your Subscription. StepChange will notify you of any Subscription Fee increase no less than thirty (30) days prior to the subsequent Transaction. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features, and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or StepChange. Your Subscription will continue until cancelled by you or until we terminate your access to or use of the Services or Subscription in accordance with this Agreement.
3. Cancellation. You may cancel a Transaction for a full refund within ten (10) calendar days of the initial Transaction. AFTER THAT, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF THE TRANSACTION. But, if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we will refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to [email protected]. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
4. Trial Period. StepChange is offering a trial of the Services for a period of thirty (30) days (the "Trial Period") to enable you to evaluate the Services for the purchase of a full-term Subscription. Unless otherwise agreed upon by the parties, no fees are due to StepChange under this Agreement for the Trial Period. YOU ACKNOWLEDGE THAT STEPCHANGE PROVIDES THE SERVICES ON AN "AS-IS" BASIS, AND STEPCHANGE MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE STEPCHANGE MATERIALS, THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. IN NO EVENT WILL STEPCHANGE'S TOTAL LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH SERVICES DURING THE TRIAL PERIOD EXCEED FIVE HUNDRED ($500) DOLLARS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT STEPCHANGE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. With respect to the Trial Period, these terms supersede any conflicting terms in this Agreement.

4. CUSTOMER RESPONSIBILITIES.

Customer will provide information, make available personnel, and take other such actions as requested by StepChange that is reasonably necessary for delivery of the Services. Customer will also cooperate with StepChange in establishing login and authentication control mechanisms or other procedures for verifying that only designated employees of Customer have access to the Services and StepChange Materials. Customer acknowledges that failure to reasonably cooperate with StepChange Labs, Inc. may result in additional fees due to StepChange Labs, Inc.

5. CONFIDENTIALITY.

Neither party will disclose any information to any third party that is marked as "confidential" or "proprietary" or should otherwise reasonably be considered to be confidential or proprietary ("Confidential Information") without the express written consent of the other party, other than (a) in confidence, to its employees or contractors as necessary with respect to this Agreement or (b) pursuant to an order or requirement of a court, administrative agency or other governmental body (provided that the party receiving such Confidential Information provides reasonable written notice to the other party to allow the other party to seek a protective order or otherwise contest the disclosure). In addition, neither party will use any Confidential Information other than in the performance of obligations or exercise or enforcement of rights under this Agreement. Confidential Information excludes any information: (a) generally available to or known to the public absent breach of this Agreement, (b) previously known to the receiving party, (c) independently developed by the receiving party outside the scope of this Agreement, or (d) disclosed by a third party absent breach of its confidentiality obligations or applicable laws or regulations. For the avoidance of doubt, Customer Materials constitutes Confidential Information of Customer and StepChange Materials constitute Confidential Information of StepChange.

6. TERM AND TERMINATION.

1. Term. This Agreement commences on the upon Customer's initial use of the Services and expires sixty (60) days following the last Transaction made under this Agreement (the "Term").
2. Termination.
   1. Either party may terminate this Agreement for convenience upon thirty (30) days' written notice to the other party; provided that, if Customer terminates this Agreement for convenience, Customer will be responsible for any costs incurred by StepChange in connection with this Agreement that are non-refundable or non-cancellable.
   2. StepChange may suspend or otherwise terminate this Agreement in the event it determines or believes in its discretion that continuing to provide the Services may result in harm to StepChange, or that there is unauthorized access or misuse of the Services or StepChange Materials.
   3. In the event of any termination or expiration of this Agreement, all rights and licenses granted hereunder will immediately cease, but the following provisions will survive any termination or expiration of this Agreement: Sections 2, 4, 5, 6, 8, 9, and 11.

7. REPRESENTATIONS AND WARRANTIES.

1. Mutual. Each party represents and warrants to the other that (a) it has all right, power and authority to enter into this Agreement and (b) its duties and obligations under this Agreement do not conflict with any other duties or obligations assumed by it under any agreement with another party.
2. By Customer. Customer represents and warrants that StepChange's use of the Customer Materials will not violate any applicable laws or regulations or infringe or violate any intellectual property rights or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third party.

8. DISCLAIMER.

THE SERVICES, STEPCHANGE MATERIALS AND ANYTHING ELSE PROVIDED BY STEPCHANGE, ITS VENDORS AND LICENSORS, AS APPLICABLE, IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS AND STEPCHANGE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, THAT THE SERVICES OR STEPCHANGE MATERIAL ARE FREE FROM DEFECTS, ERRORS, INACCURACIES OR BUGS. WITHOUT LIMITING THE FOREGOING, STEPCHANGE HEREBY DISCLAIMS ANY WARRANTY THAT (1) USE OF THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR BE ERROR-FREE OR UNINTERRUPTED, AND (2) ANY WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE SERVICES.

CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE SERVICES USE EXPERIMENTAL TECHNOLOGY LIKE GENERATIVE ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING ALGORITHMS, AND MAY SOMETIMES PROVIDE INACCURATE OR OFFENSIVE CONTENT THAT DOES NOT REPRESENT STEPCHANGE'S VIEWS. ACCORDINGLY, STEPCHANGE DOES NOT MAKE ANY WARRANTIES REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE GENERATED MATERIALS, INCLUDING ANY INFORMATION OR CONTENT THEREIN. CUSTOMER FURTHER ACKNOWLEDGES THAT THE GENERATED MATERIALS ARE GENERATED BY GENERATIVE ARTIFICIAL INTELLIGENCE TOOLS AND MAY NOT BE PROTECTABLE UNDER APPLICABLE INTELLECTUAL PROPERTY LAWS, AND STEPCHANGE HEREBY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE OWNERSHIP OR PROTECTABILITY OF, OR APPLICABILITY OF INTELLECTUAL PROPERTY RIGHTS TO, SUCH GENERATED MATERIALS. CUSTOMER'S USE AND RELIANCE OF THE GENERATED MATERIALS IS AT CUSTOMER'S OWN RISK, AND STEPCHANGE IS NOT LIABLE FOR ANY LOSS OR DAMAGES ARISING FROM THE USE OF OR RELIANCE ON THE GENERATED MATERIALS.

9. LIMITATION OF LIABILITY.

IN NO EVENT WILL STEPCHANGE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUE, LOSS OF USE, LOST BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, OR COST OF REPLACEMENT PRODUCTS OR SERVICES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES, STEPCHANGE MATERIALS, OR ANY ANYTHING ELSE PROVIDED BY STEPCHANGE HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, INTELLECTUAL PROPERTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT STEPCHANGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL STEPCHANGE'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO STEPCHANGE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY STEPCHANGE TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, PROVIDED THAT IN NO EVENT WILL STEPCHANGE'S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS MADE UNDER OR RELATED TO THIS AGREEMENT EXCEED $10,000.00, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT STEPCHANGE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

10. PUBLICITY.

Customer hereby grants to StepChange a non-exclusive license to use and display Customer's name, logos, trademarks and other identifiers (collectively, "Customer Marks"): (i) on StepChange's website and marketing materials, including without limitation for press releases, advertisements, brochures, and in connection with case studies or other publications or marketing materials publicizing Customer's use of the Services; (ii) reasonably serve as a reference for StepChange's existing or potential customers of the Services; and (iii) reasonably serve as a reference for StepChange's prospective investors. Except as set forth herein, neither party will individually make or issue any press release or public statement related to this Agreement or any of the rights or obligations undertaken by either party hereunder unless otherwise agree to in writing by both parties prior to the issuance of any such press release or public statement.

11. MISCELLANEOUS.

Neither Party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other party's prior written consent, except to a successor entity in the event of a reorganization, merger, acquisition, or "change of control" transaction, and any attempt by either party to do so, without such consent, will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. "Including" means "including, without limitation." If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient). This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.