Terms and Conditions

Last Revised: April 28, 2016

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES OFFERED BY SPLIT SOFTWARE, INC. (“SPLIT”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”) OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Order Forms; Access to the Service

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Split grants Customer the right and license to access and use the Split platform to the extent made available by Split (collectively, the “Service,” or “Services”) during the term of this Agreement for the internal business purposes of Customer, only as provided herein.

To access the Services, you are required to sign up for an account through a third party authentication system then-designated by Split set forth at app.split.io/login. You represent and warrant that you are of legal age to form a binding contract. You will not share your account or password with anyone, and you must protect the security of your account and password. You will notify Split promptly of any unauthorized access to your account or password. You are responsible for all of your activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service.

2. Ownership; Feedback

Any software which is distributed or otherwise provided to Customer hereunder (including without limitation, any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to Split with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Split notwithstanding anything else. Customer shall, and hereby does, grant to Split a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Split’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

3. Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Split product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Split may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.

4. Fees

Split may offer a free (e.g. trial) and paid version of the Service which may have distinct features. Without limiting the foregoing, Split may at any time and without notice discontinue a Customer’s free access to the Services. 

To the extent specified in an Order Form, Customer shall pay Split fees for the Service (“Fees”). All Fees shall be invoiced as provided on the Order Form. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Split’s net income). All Fees paid are non-refundable and are not subject to set-off.

5. Confidentiality; Customer Data; Publicity

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Split, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Split shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Split is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Split’s gross negligence or willful misconduct.

Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is terminated. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Split may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated De-identified Data (as defined below), and (ii) freely use and make available Aggregated De-identified Data for Split’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Split’s products and services). “Aggregated De-identified Data” means data submitted to, collected by, or generated by Split in connection with Customer’s use of the Service, but only in aggregate, de-identified form which is not linked specifically to Customer or any individual.

Notwithstanding anything else, Split is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials).

6. Term; Term Length

This Agreement shall commence upon the earlier of (a) Your initial access to the Service and (b) the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all pilot terms and Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, shall continue for the initial term specified on the Order Form.  In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.

Without limiting the foregoing, Split may also suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than thirty (30) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Split’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Split shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Split may use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Split may reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

7. Indemnification

Customer agrees to indemnify and hold Split, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages, losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) Customer’s use of the Services (including any actions taken by a third party using Customer’s account), and (b) Customer’s violation of this Agreement.

8. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

9. Limitation of Liability

IN NO EVENT SHALL SPLIT, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE GREATER OF (A) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO SPLIT HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER OR (B) $100.

10. Miscellaneous

The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California, provided that either party may seek injunctive relief in any court of competent jurisdiction.

All notices under this Agreement shall be in writing, sent via email and deemed to have been duly given when receipt is electronically confirmed or twelve hours after sending (whichever is sooner). All notices to Split should be sent to info@split.io, and all notices to Customer will be sent to the most recent email provided by Customer to Split.

Split reserves the right to change this Agreement at any time, but if such a change occurs, Split will bring it to Customer’s attention by placing a notice on the www.split.io website, by sending Customer an email, and/or by some other means. If Customer does not agree with any terms of the new Agreement, Customer may not use or access the Service in any manner. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties.

Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

Customer will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with Customer’s activity in connection with the Services, provided that Split may, in its sole discretion, do any of the foregoing on Customer’s behalf or for Split as Split sees fit.

Customer may not assign, delegate or transfer this Agreement or its rights or obligations hereunder in any way (by operation of law or otherwise) without Split’s prior written consent. Split may transfer, assign, and delegate this Agreement and Splits’ rights and/or obligations without consent, and Split may utilize subcontractors in the performance of its obligations hereunder. The failure of either Customer or Split to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that this Agreement shall otherwise remain in full force and effect and enforceable. Customer and Split agree that this Agreement is the complete and exclusive statement of the mutual understanding between Split and Company, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.