Terms of Service

Last updated: Aug 31, 2023

These Terms of Service, as may be amended from time to time, together with any other terms, agreements and policies referenced herein (which constitute an integral part hereof) (collectively the “Terms”) constitute a legally binding agreement between Memphis.dev. (Strech Inc.), a company incorporated under the laws of Delaware USA, d/b/a “Memphis.Dev”, and any affiliate thereof (collectively the “Company”) and the customer executing or otherwise accepting these Terms or the Order Form, as applicable, which refer to these Terms (respectively, the “Customer” and the “Order Form”). The Terms govern the manner in which the Customer and its users (each, a “User”) may install, integrate, use and access the Company’s Service (as defined below) in a subscription-based model. These Terms may be accepted, and the Order Form may be completed and entered-into, in various ways, including through an online form, in-product screen, or an offline form(s) of these Terms delivered by Customer to the Company, including via mail, email or any other electronic or physical delivery mechanism. The use of the Company’s Service (as defined below) shall be deemed as acceptance of these Terms.

1. The Service

1.1. Subscription to the Service. The Company’s Service is comprised of (i) hosted and managed Memphis environment provided in a subscription based software-as-a-service model (the “Managed Service”), and (ii) certain proprietary add-ons and features to the Memphis environment (the “Proprietary Features” and, together with the Managed Service, the “Service). Customer may access and use the Service, solely for Customer’s internal operations (the “Purpose”).

1.2. Subscription Limitations. The right to use and access the Service, is granted solely to the Customer and its Users, and is limited, non-transferable, non-exclusive, non-assignable and non-sub-licensable. The Service may only be used by individuals who: (i) can form legally binding contracts under any applicable law, and (ii) are authorized to use the Service pursuant to Customer’s procedures and policies (if any).

1.3. Modification or Discontinuation of the Service. The Company may change or update the Service at any time, including the availability of any feature, content or database, and may impose limitations or restrictions on certain features and services. In case of a material change, the Company will notify Customer by posting an announcement on the Company’s website, through the Service or by email. Furthermore, the Company may offer alternative or additional features to certain Customers, that may not be offered to others.

2. Free Trial; Pre-Released Services

2.1. Free Tier. The Company may offer, from time to time, certain features of the Service for limited free use (“Free Tier”). The term of the Free Tier and the limitations imposed on the Free Tier shall be as set forth in an Order Form. The Company reserves the right to modify, cancel and/or limit the Free Tier at any time and without liability.  

2.2. Pre-Released Services. The Company may offer, from time to time, certain services in alpha or beta versions (the “Pre-Released Services”) and will use best endeavors to identify the Pre-Released Services as such. Pre-Released Services are services that are still under development, and as such they may be incomplete, may contain bugs, suffer disruptions and not operate as intended and designated. 

2.3. Governing Terms of Free Tier and Pre-released Services. The Free Tier and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Free Tier and Pre-Released Services (i) Free Tier and Pre-Released Services are licensed hereunder on as “As-Is” “As Available” basis, with no warranties, express or implied, of any kind; (ii) The indemnity undertakings by the Company set forth in Section 14.1 herein shall not apply thereto; and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS AND/OR THE TRIAL SERVICE AND THE PRE-RELEASED SERVICES (INCLUDING THE SITES, THE SERVICE AND THE THIRD PARTY SERVICES), EXCEED  FIVE US DOLLARS (US$ 5). The Company makes no promises that any Trial Service and/or Pre-Released Services will be made available to the Customer or generally available.

3. Registration to the Service

3.1. Account Registration. In order to use the Service, each User shall register and create an account (the “Account”). In the event that a User is the first user of the Service on behalf of a Customer, such User will automatically be considered the Customer’s administrator (the “Administrator”), unless and until such time as such role is transferred to another User of the Customer. The Administrator is considered a representative of the Customer for any and all purposes.. 

3.2. Account Information. As part of the registration process, Users may be required to provide the Company with certain personal information (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. Customer is responsible that each User shall provide the Company with accurate, complete, and updated registration information. Customer shall notify the Company immediately of any breach of security or unauthorized use of an Account known to Customer. Customer is solely responsible and liable for the activity that occurs in the Accounts and for the use of the Service by its Users and for any losses, damages, liability and expenses incurred by the Company or a third party, due to any unauthorized use of the Account by either Customer or any other User or third party on Customer’s behalf. Customer shall (i) not allow anyone other than Customer’s Users to access and use the Accounts; (ii) keep and ensure that Users keep all Account login details and passwords secure at all times; (iii) ensure that the login credentials (the “Login Credentials”) for each User may only be used by such User, and prevent multiple people from sharing the same Login Credentials.

3.3. Suspension; Deletion. The Company reserves the right to (i) block User’s access to the Service in case of suspected violation of any applicable law or breach of these Terms, and (ii) delete any Account that has not been active (i.e., User that did not log in to the Account or transfer data to the Platform) for ten (10) consecutive days, without providing any prior notice to the Customer and/or the Administrator(s). 

3.4. Administrator Control. The Administrator shall have control over all Accounts and may have the ability to: (i) access information about Users’ activities; (ii) monitor and manage Users’ Accounts and (iii). The Administrator may specify additional Users who will gain Administrator privileges.

3.5. Administrator Responsibility. The Administrator is responsible for the internal management and administration of the Service within the Customer’s Accounts. In addition, the Administrator is responsible for: (i) maintaining the confidentiality of the Login Credentials of the Accounts; (ii) designating those individuals who are authorized to access the Accounts or a new Administrator; and (iii) performing monitoring to ensure the protection of Users’ privacy and compliance with applicable law. 

4. Customer’s Obligations

4.1. Customer shall provide Company with all reasonable cooperation, shall comply in a timely and efficient manner, and be responsible and liable for the Users’ compliance with these Terms, the Order Form and all applicable laws and regulations. Without derogating from the aforementioned, Customer shall provide the Company with the resources and fulfill the responsibilities set forth in the Order Form. In the event of any delays by the Customer, Company may adjust any agreed timetable or delivery schedule as reasonably necessary.

4.2. Customer is solely responsible for obtaining, maintaining and operating the User’s devices (including, without limitation, smartphones, tablets and computers), and any related equipment, hardware, software, backup systems, security systems and measures or ancillary services (the “Customer’s Infrastructure”) necessary in order to access and use the Service. Customer shall be solely responsible and liable for any fees charged by third parties in connection with the Customer’s Infrastructure. Customer’s Infrastructure shall, at minimum, meet the specifications set forth in the Order Form or otherwise provided by the Company (as applicable). Customer shall be solely responsible for procuring and maintaining its network connections and communications links, and for all malfunctions, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet, Company shall have no responsibilities, commitments of undertakings in connection with the above. Without limiting the generality of the aforementioned, Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the hosting, storage or transfer of software or data over communications networks and facilities, including the internet, and to the performance of any third-party communication, hosting or storage provider, and the Customer acknowledges that the Service may be subject to interruptions, limitations, delays and other risks associated with the use of such hosting, storage and communications facilities.

4.3. Customer is responsible for all acts or omissions of its Users and their use of the Service. The Company shall not have any liability towards Users, and the Customer is solely responsible for responding to any claims, requests and demands by the Users or any other third party related to the Customer. Company will, to the extent allowed by law, promptly notify Customer of its receipt of a claim, request or demand (as applicable) by a User or such related third-party and comply with Customer’s reasonable requests in connection with the handling of such claim, request or demand. 

4.4. Customer shall ensure that the Customer Data shall not contain any bugs, viruses, trojan horses or other harmful computer code or otherwise.

5. License to Customer Data

5.1. While using the Service, certain code, information and data may be uploaded or transferred to the Service to be processed by the Service on the Customer’s behalf (the “Customer Data”). As between the Customer and the Company, all rights in the Customer Data shall remain with Customer. Customer hereby grants the Company and its Sub-processors (as defined below) an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, use, process, copy, download, store, distribute and display the Customer Data, for the purpose of maintaining, developing and providing the Service and as required to resolve technical and security problems or otherwise as permitted by these Terms or in writing by Customer. 

5.2. Customer represents and warrants that (i) Customer owns or has all the necessary licenses, rights, consents, approvals, permissions, power and authority, necessary to grant the Company the aforementioned right and license and to authorize the Company and its Sub-processors to access, use, process, copy, download, store, distribute and display the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary rights of any third party; (ii) any Customer Data and any use thereof do not and shall not violate any applicable laws, including without limitation those related to data privacy or data collection, transfer and export or any policies and regulations governing or that may govern such Customer Data; and (iii) no sensitive data that is protected under a special legislation or regulation and that requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Service.

5.3. Other than Company’s security and data protection obligations expressly set forth in Section ‎‎7.2 herein, Company assumes no responsibility or liability for Customer Data, and Customer will be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that the Company shall not monitor and/or moderate the Customer Data and there shall be no claim against the Company for not acting so. The Customer shall indemnify and hold harmless the Company or anyone on its behalf from any liability, cost, damage and expense (including reasonable legal fees) caused in connection with the Customer Data.

6. Intellectual Property and Right to Use

6.1. Company Intellectual Property. All right, title and interest in the Service, including without limitation, any content, materials, software, know-how, data files, documentation, code, SDK, API, design, text, media, methodologies, artwork, names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any updates, upgrades, new versions, modifications, improvements, developments or derivatives thereof, as well as the Feedback (as defined below), if provided by Customer (as applicable) are the sole and exclusive property of the Company and its licensors (including if such improvements and developments are created as a result of processing the Customer Data). These Terms do not convey to the Customer or the Users any interest in or to the Service, except for a limited right of use as set forth herein, terminable in accordance with these Terms. 

6.2. Prohibited Use. Customer and its Users may not, and may not permit or aid others to: (i) use the Service for any purpose other than the Purpose; (ii) copy, modify, alter, translate, emulate, create derivative works based on, or reproduce the Service; (iii) give, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these Terms to any third party, including without limitation to Customer’s affiliates, or use the Service in any service bureau arrangement; (iv) reverse engineer, de-compile, decrypt, revise or disassemble the Service or any part thereof, or extract source code from the object code of the Service; (v) access or use the Service in order to build a competing product or service or for benchmarking purposes; (vi) bypass any measures the Company may use to prevent or restrict access to the Service, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Service; (vii) access the Service or Company’s systems via any means other than through the interface provided by the Company, or via automated means, including by crawling, scraping, caching or otherwise; (viii) use the Service in any manner that is illegal or not authorized by these Terms; (ix) take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or Company’s service providers’) infrastructure; (x) interfere or attempt to interfere with the integrity or proper working of the Service; (xi) remove, deface, obscure, or alter Company’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service; or (xii) provide any third party access to the Service. Customer will be solely and fully liable for any acts, omissions, or violation of these Terms by its Users and to any losses, damages, liability and expenses incurred by Company or a third party due to any unauthorized use of the Service by the Customer or by any of its Users or third party on behalf of the Customer. 

6.3. Feedback. Customer shall notify the Company of any and all design or functional errors, anomalies, and problems associated with the Service discovered or brought to its attention by its Users, and may provide the Company suggestions, comments or any other feedback regarding the Service (collectively the “Feedback”). Any such Feedback shall become the Company’s property and the Company may use any Feedback in its sole discretion, free from any right of the Customer or any third party and without any obligation towards Customer. Customer hereby assigns to Company all right, title, and interest worldwide in the Feedback and any intellectual property rights related thereto, and explicitly and irrevocably waives any and all claims associated therewith. Customer shall not provide the Company with any Feedback which infringes any third-party’s right.

6.4. Intellectual Property Infringements. In the event that the Company believes that the Service, or any part thereof, may infringe intellectual property rights of third parties, then, the Company may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Service; (ii) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the Company determines that the foregoing remedies are not reasonably available, then the Company may require that use of the (allegedly) infringing Service (or any such part thereof) shall cease and in such an event Customer shall receive a prorated refund of any Fees paid for the unused portion of the Subscription Term. THIS SECTION STATES THE COMPANY’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE COMPANY AND/OR ANY SUPPORTING SERVICES AND UNDERLYING TECHNOLOGY. 

7. Privacy

7.1. Privacy. Customer acknowledges and agrees that the use of the Service by the Customer and the Users is governed by the Company’s Privacy Policy available at: https://memphis.dev/privacy-policy/ (“Privacy Policy”). The Privacy Policy shall constitute an integral part of these Terms. 

7.2. Personal Data. Customer acknowledges and agrees that in order to use the Platform, no Personal Data, as such term is defined in the General Data Protection Regulation ((EU) 2016/679) and any other applicable data protection regulation (“Personal Data”) should be transferred to the Platform or processed by the Platform. Customer is responsible that no Personal Data or other data that is protected under a special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Platform.

7.3. Anonymous Information. The Company may collect, monitor and freely use Anonymous Information (as defined below), inter alia to provide, develop, maintain, improve, demonstrate and market the Service. For the purposes of these Terms, “Anonymous Information” means information about the use of the Service which does not enable identification of an individual, such as aggregated data, metadata and analytic information. Anonymous Information shall not be considered Customer’s Confidential Information. 

7.4. Security. Company agrees, during the Subscription Term, to implement reasonable industry-standard, technical, and organizational security measures to protect Customer Data.

8. Third-Party Software and Services

8.1. Sub-processors. Customer acknowledges that the Service is hosted and made available by certain sub-processors of the Company (the “Sub-processors”). The Company may from time to time remove, add or replace its Sub-processors, at its sole discretion without providing any notices or notifications to a Customer or its Users in connection therewith.

8.2. Free Software. The Service may include third party “open source” or “Free Software” components that are subject to third party terms and conditions (“Third Party Terms”). If there is a conflict between any Third Party Terms and the terms of these Terms, then the Third Party Terms shall prevail but solely in connection with the related third party component and solely with respect to such conflict. The Company represents and warrants that it is in compliance with the notice and attribution aspects of the Third Party Terms. The license terms, copyright notices and available source code with respect to Third Party Terms can be found at: https://memphis.dev/terms-of-service-list-of-dependencies/

8.3. Other Products and Services. The Service may rely on, integrate with, and contain links to other third-party services, or may enable Customer and its Users to access, engage and procure certain services and products provided by third parties (the “Third-Party Services”). Customer acknowledges and agrees that regardless of the manner in which such Third-Party Services may be presented or offered to Customer, Company does not endorse any such Third-Party Services or shall be in any way responsible or liable with respect to any such Third-Party Services. BY ACCESSING AND/OR USING THE THIRD-PARTY SERVICES, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD-PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD-PARTY SERVICES ARE IN COMPLIANCE WITH CUSTOMER’S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION. COMPANY BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD-PARTY SERVICES’ OPERABILITY OR INTEROPERABILITY WITH COMPANY’S SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES.

9. Subscription; Payments

9.1 Subscription Term and Fees. The Service is provided on a subscription basis for the term specified in Customer’s Order Form (the “Subscription” and the “Subscription Term”). The Subscription Term for Free Tier shall be determined by the Company at its sole discretion and may be terminated by the Company any time in its sole discretion. During the Subscription Term Customer shall pay the Company the applicable fees set forth in the Order Form(s) (the “Fees”). Unless expressly indicated otherwise, Fees are stated in US dollars. Customer hereby authorizes the Company, either directly or through the Company’s payment processing services, to charge the Fees via Customer’s selected payment method, upon the due date. Unless expressly set forth herein, the Fees are non-cancelable and non-refundable. The Company reserves the right to change the Fees at any time, upon notice to Customer, provided that any increase shall only become effective upon the end of the then-applicable Subscription Term.

9.2. Subscription Auto-Renewal. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription shall automatically renew by default, unless canceled by a written notice, by either the Company or the Customer at least 30 days prior to its expiration, for a renewal period equal in time to the original Subscription Term (excluding any renewal period) at the then applicable Fees.

9.3. Taxes. The Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties (the “Taxes”), except for income tax imposed on the Company. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to the Company, Customer shall promptly notify the Company in writing and the Company shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be “grossed up” and added on top of the Fees payable by Customer.

9.4. Payment Terms. The Fees set forth in each Order Form are final. Customer shall pay each invoice according to the payment terms set forth in the Order Form. Unless otherwise set forth in the Order Form, the Fees shall be paid annually, in advance, upon receipt of an invoice. All Fees are non-cancelable and non-refundable, unless required otherwise by mandatory law. Delinquent payments may bear compounded interest, as of the payment due date and until paid in full, at a rate equal to the lower of: (i) 1.5% per month, or (ii) the highest rate permitted by law. The aforesaid shall not derogate from any other right or remedy to which the Company may be entitled. Customer will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by the Company in collecting any payment(s). The Service shall be made available to Customer for the applicable Subscription Term only following receipt by the Company of the amounts due by Customer. Payment in installments shall not imply that the Customer may terminate the Subscription during the Subscription Term prior to the payment of any installment.  

9.5. Credit Card. Credit card details may be needed to complete an order, and the Service will be available to Customer following successful completion of billing. Customer will be notified accordingly. Customer authorizes the Company to continue to charge its credit card or any replacement card upon the beginning of each billing period for the agreed amount of such period, but failure to charge Customer’s card does not derogate from Customer’s payment obligation.

10. Termination

10.1. Termination for Cause. A breach of obligations by either party hereto which is not cured within 10 days from receiving notice thereof, shall entitle the non-breaching party to immediately terminate these Terms by written notice. Notwithstanding anything to the contrary, if a party files for petition or action for relief under any bankruptcy, reorganization, insolvency, receivership or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes or becomes subject to any action in furtherance of any of the foregoing, the other party will be entitled to terminate these Terms immediately by a written notice.

10.2. Termination or Suspension by Company. Company may terminate or suspend Customer’s use of and access to the Service (or any part thereof) immediately, without prior notice or liability, in each of the following events: (i) the Company believes, in its sole discretion, that Customer or any third party is using the Service in a manner that may impose a security risk, may cause harm to the Company or any third party, and/or may create any liability to the Company or any third party; (ii) if the Company believes, in its sole discretion, that Customer or any third party is using the Service in breach of these Terms or applicable laws; or (iii) if the Company is unable to charge the Fees through Customer’s approved payment means or if any payment is or is likely to become overdue. The aforementioned rights are in addition to any rights and remedies that may be available to the Company in accordance with these Terms and/or under any applicable law.

10.3. Termination by Customer. Customer may terminate its Subscription to the Service by cancelling its Subscription, whereby termination will take effect at the end of the then-current Subscription Term and shall not derogate from Customer’s obligation to pay the applicable Fees for the Subscription Term.

10.4. Effect of Termination. Unless expressly indicated otherwise in these Terms, the termination or expiration of these Terms and or an Oder Form (as applicable) shall not relieve Customer from its obligation to pay due Fees in connection therewith. Upon termination or expiration of these Terms and Customer’s Subscription, all rights granted to Customer and the Users hereunder or under any outstanding Order Form (i) shall terminate,  (ii) Customer shall cease to have access to the Service and any Customer Data, and (iii) Customer shall remove any Service components or any other Company intellectual property from Customer’s systems. Customer is solely responsible to export all available Customer Data prior to such termination or expiration, and following termination or expiration, the Company may delete all Customer Data without retaining any copy thereof. In addition, Customer shall return or destroy, at Company’s choice, all Company’s Confidential Information (as defined below) then in Customer’s possession and Customer shall have no claim against the Company in this regard.

10.5. Survival. All the provisions of these Terms which by their nature should survive termination (including, without limitation, (11) Confidentiality, (6) Intellectual property and Right to Use, (12) Warranty and Disclaimer, (13) Limitation of Liability and (14) Indemnification) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination or expiration of these Terms shall not relieve Customer from any obligation arising or accruing prior to such termination or expiration or limit any liability which Customer otherwise may have to the Company.

11. Confidentiality

11.1. Confidential Information. For purposes of these Terms, the term “Confidential Information” shall mean any and all non-public business, product, technology and marketing data and information, whether written, oral or in any other medium disclosed or otherwise provided by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information which the Receiving Party can prove: (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no act or omission of the Receiving Party in breach of these Terms; (b) is known to the Receiving Party at the time of disclosure; (c) is disclosed to the Receiving Party free from confidentiality obligations by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; or (d) was or is independently developed by the Receiving Party without use of or reliance upon the Confidential Information. 

11.2. Confidentiality Obligations. Receiving Party undertakes and warrants that: (i) it shall hold the Confidential Information of Disclosing Party in confidence and shall take all reasonable steps to safeguard and protect the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature; (ii) it shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to those of its employees who have a need to know such Confidential Information for the purpose of fulfilling these Terms and provided that such employees are bound by written confidentiality obligations which are at least as restrictive as those contained herein; (iii) it shall not copy or use the Confidential Information for any purpose except to the extent required to perform its obligations, or exercise its rights, hereunder, whilst maintaining the Disclosing Party’s interests; and (iv) if the Receiving Party is requested or legally compelled to disclose any Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, the Receiving Party shall make best efforts to provide the Disclosing Party prompt notice thereof, and, at the request and expense of the Disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested by such court, administrative agency, or other governmental body, as applicable. Receiving party’s obligations with respect to Confidential Information shall expire five (5) years from the date of termination or expiration of the last Subscription Term, unless under applicable law, a longer period of protection applies. 

11.3. Right to Disclose. Company reserves the right to access, read, preserve, and disclose any information that it obtains in connection with the Service as the Company reasonably believes necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Customer’s support requests, and/or (v) protect the rights, property or safety of the Company, its users or the public.

12. Warranty and Disclaimer

12.1. THE COMPANY DOES NOT WARRANT, UNDERTAKE OR GUARANTEE THAT ANY OR ALL SOFTWARE BUGS AND SECURITY ISSUES WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY BUGS OR SECURITY BREACHES OR VULNERABILITIES IN CUSTOMER’S SOFTWARE, PRODUCTS, SYSTEMS OR SERVICES. THE COMPANY DOES NOT WARRANT, UNDERTAKE OR GUARANTEE THAT ANY ACTION OR RECOMMENDATION BY THE PLATFORM WILL SATISFY CUSTOMER’S NEEDS OR WILL BE OPTIMAL UNDER THE CIRCUMSTANCES. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ACCESS TO AND USE OF THE PLATFORM, AS WELL AS ANY RELATED SERVICES PROVIDED BY THE COMPANY, ARE AT CUSTOMER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS IS SOLELY WITH CUSTOMER. FURTHERMORE, SUBJECT TO THE TERMS OF THIS SECTION 12, CUSTOMER SHALL NOT HAVE THE RIGHT TO RISE ANY CLAIMS IN CONNECTION WITH THE QUALITY, PERFORMANCE, ACCURACY AND RESULTS OF THE SERVICE PROVIDED BY THE COMPANY.

12.2. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE PLATFORM AND ANY PROFESSIONAL SERVICES ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE, REGARDING THE PLATFORM AND CUSTOMER’S USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY PROCESS, ACTION, INFORMATION OR ADVICE OBTAINED BY CUSTOMER AS A RESULT OF THE USE OF THE PLATFORM WILL BE ACCURATE, RELIABLE, EFFECTIVE, PROPER, LAWFUL OR OTHERWISE IN ACCORDANCE WITH THE CUSTOMER’S EXPECTATIONS. 

12.3. CUSTOMER IS RESPONSIBLE TO ASSURE THAT THE SERVICE WILL NOT INTERFERE WITH THE OPERATION OF THE CUSTOMER’S PRODUCES AND SERVICES, SUCH THAT THE CUSTOMER’S PRODUCTS AND SERVICES SHALL PROPERLY FUNCTION EVEN IF THE SERVICE, OR ANY PART THEREOF, IS DISABLED. 

13. Limitation of Liability

13.1. NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

13.2. IN NO EVENT SHALL COMPANY, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS, EMPLOYEES OR SERVICE PROVIDERS BE LIABLE UNDER ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES; (II) LOSS OF, INTERFERENCE OR DAMAGE TO CUSTOMER’S SYSTEMS, DEVICES, DATA, INFORMATION, GOODWILL, REVENUE, PROFITS, SAVINGS, OR PURE ECONOMIC LOSS; AND/OR (III) THE FAILURE OF INDUSTRY STANDARD SECURITY MEASURES AND PROTECTIONS; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; REGARDLESS OF (A) WHETHER COMPANY, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE; OR (B) THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).

13.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY’S AGGREGATE AND CUMULATIVE LIABILITY FOR ALL DIRECT CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), IS LIMITED TO THE FEES PAID TO THE COMPANY FOR USE OF THE SERVICE IN THE SIX (6) MONTHS PRECEDING THE CAUSE OF THE CLAIM.

14. Indemnification 

14.1. By Company. Company hereby agrees to defend and indemnify Customer against any direct damages awarded against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that the grant of right to use the Service within the scope of these Terms infringes any valid U.S. patent. Company shall have no obligations or liability hereunder in case (i) the Service is used in an unlawful manner or in violation of these Terms; (ii) features are provided at the request of the Customer; (iii) the Service is used in combination with other products, equipment, software, or data not provided by the Company; (iv) the alleged infringement is resulting from processes developed by the Customer or at the Customer’s request within the Service; or (v) the alleged infringement is based on the Customer Data or any other content provided by Customer or its Users or use of the Service by the Customer. SECTIONS ‎‎6.4 AND ‎‎14.1 STATE THE COMPANY’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE COMPANY AND/OR THE SERVICE AND UNDERLYING TECHNOLOGY.

14.2. By Customer. Without derogating from Company’s rights under these Terms and under applicable law, Customer hereby agrees to defend and indemnify Company against any damages awarded against Company by a court of competent jurisdiction, or paid in settlement, in connection with (i) a third party claim, suit or proceeding that use of the Customer Data and any other content provided by Customer and/or the Users, or the use of the Service by the Customer and/or the Users infringes any intellectual property rights of a third party; (ii) the use or misuse of the Service by Customer, the Users or any third party using an Account.

14.3. General. The defense and indemnification obligations of the indemnifying Party under this Section ‎14 are subject to: (i) the indemnifying Party being given prompt written notice of the claim; (ii) the indemnifying Party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified Party providing cooperation and assistance, at the indemnifying Party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying Party’s defense of, or response to, such claim.

15. Miscellaneous

15.1. Export Control. The Service may be subject to U.S. or foreign export controls, laws and regulations (the “Export Controls”), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use of the Service.

15.2. Customer’s Reference. Customer acknowledges and agrees that the Company has the right to use Customer’s name and logo to identify Customer as a customer of Company or user of the Service, on Company’s website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting Company at: support@memphis.dev. The publication of any additional content related to the Customer’s use of the Service (other than mere reference to the Customer as set forth above) shall require the Customer’s prior approval (which may not be unreasonably withheld or delayed). Customer agrees that the Company will publish a case study on the Customer’s use of the Service, subject to the Customer’s approval of the content of the case study (which may not be unreasonably withheld or delayed).

15.3. Force Majeure. Neither Company nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, pandemic, terrorism, and governmental action.

15.4. Governing Law; Jurisdiction. These Terms and its performance shall be governed by the laws of the State of Delaware, without regard to conflict of laws’ provisions that would result in the application of the laws of any other jurisdiction. The parties hereto submit the exclusive jurisdiction to the courts in the district of Delaware.

15.5. Class Action Waiver. WHERE PERMITTED UNDER APPLICABLE LAWS, CUSTOMER AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and the Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

15.6. Relationship of the Parties; No Third-Party Beneficiaries. The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to these Terms.

15.7. General. The headings used in these Terms are for convenience only and shall in no case be considered in construing these Terms. The schedules and exhibits attached hereto are incorporated herein by this reference. 

15.8. Entire Agreement. These Terms (and the other terms, agreements and policies referenced herein) constitute the entire agreement between Customer and the Company with respect to Customer’s use of the Service, and supersede all prior or contemporaneous understandings regarding such subject matter.

15.9. Assignment. Company may assign at any time any of its rights and/or obligations hereunder to any third party without Customer’s consent. Customer may not assign any of its rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Company, and any attempt by a Customer to do so shall be deemed null and void.

15.10. Notice. All notices or reports permitted or required under these Terms shall be made by personal delivery, by express courier service (such as FedEx or UPS) that requires proof of delivery, certified or by registered mail, return receipt requested, or by electronic mail, and shall be deemed effective (a) if mailed, 5 business days after mailing; (b) if made by personal delivery or sent by messenger or express courier service, upon delivery; and (c) if sent via electronic mail, upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt.

15.11. Severability. In the event that a court of competent jurisdiction finds any provision of these Terms to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.

15.12. No Waiver. The failure of the Company to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Company in writing.

For any questions or queries about these Terms or the Service in general, please do not hesitate to contact us at the following e-mail address: team@memphis.dev

Last Updated: 29.5.2023