September 15, 2021
These Terms and Conditions will apply to the Order Form mutually executed between Slab, Inc. (“Slab”) and the party named on the Order Form (“Customer”). Subject to the Order Form and the below Order Form Terms and Conditions (together, this “Agreement”), Slab will provide the Services consistent with the selected plan indicated on the Order Form, as well as any Additional Features indicated on the Order Form. All capitalized terms not defined in these Terms and Conditions will have the definition given in the Order Form.
2.1 Use of the Services. Subject to the terms and conditions of this Agreement, Slab grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) right during the term of this Agreement to use the Services solely in connection with Customer’s internal business operations and by the number of Users specified in the Order Form.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Slab grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
2.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: a) rent, lease, or otherwise permit third parties to use the Services or Documentation; b) use the Services to provide services to third parties (e.g., as a service bureau); c) use the Services for any benchmarking activity or in connection with the development of any competitive product or for the purpose of bringing an infringement claim against Slab; nor d) circumvent or disable any security or other technological features or measures of the Services.
2.4 Compliance with Laws. Customer will use the Services and Documentation in compliance with all applicable laws and regulations.
2.5 Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Services and Documentation and immediately notify Slab in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Slab to prevent or terminate unauthorized use of the Services or Documentation.
2.6 Reservation of Rights. Slab grants to Customer a limited right to use the Services and Documentation under this Agreement. Customer will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Slab reserves to itself all rights to the Services and Documentation not expressly granted to Customer in accordance with this Agreement.
2.7 Feedback. If Customer provides any feedback to Slab concerning the functionality and performance of the Services (including identifying potential errors and improvements), Customer hereby grants to Slab a non-exclusive, perpetual, irrevocable, royalty-free license to use any such feedback for any purpose. For avoidance of doubt, any feedback is provided “as is” and does not include any User Content.
The Parties agree that the pricing and payment terms on the Order Form will govern. Customer shall pay Slab the fees set forth on the Order Form (“Fees”) within thirty (30) days of the date of Slab’s applicable and undisputed invoice. All Fees are non-refundable and shall be paid in U.S. Dollars. Notwithstanding the foregoing, if Customer terminates this Agreement as a result of a material breach by Slab, Customer will receive a pro rata refund of Fees paid to Slab for the remaining unused portion of the Services. Customer shall pay any applicable sales, use, value added, surtax and personal property taxes, duties, fees and other governmental assessments or charges arising out of this Agreement and the transactions contemplated in this Agreement, excluding taxes based on Slab’s income.
4.1 Term. This Agreement will commence upon the Effective Date and continue for one year unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
4.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 4.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Slab may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
4.3 Post-Termination Obligations. If this Agreement is terminated for any reason, a) Customer will pay to Slab any fees or other amounts that have accrued prior to the effective date of the termination, b) any and all liabilities accrued prior to the effective date of the termination will survive, and c) Customer will provide Slab with a written certification signed by an authorized Customer representative certifying that all use of the Services and Documentation by Customer has been discontinued.
Each party shall keep confidential all information identified by the other party as confidential or proprietary (“Confidential Information”). Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Information shall not, with respect to a party, be subject to such confidentiality obligations if it is or becomes: (a) publicly available through no fault of the receiving party, (b) known to such party prior to the time of disclosure by another party, (c) lawfully and rightfully disclosed to such party by a third party on a non-confidential basis, (d) developed by such party without reference to Confidential Information or (e) required to be disclosed by law, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders.
6.1 Mutual Warranties. Each party represents and warrants to the other that: a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
6.2 Slab Warranties. Slab represents and warrants that it will provide the Services in a professional and workmanlike manner. Slab warrants that, to its knowledge, the Service is and will be free from any software viruses, worms, Trojan horses or other code, files, or scripts intended to do harm (“Malicious Code”) and that Slab will not knowingly or intentionally transmit Malicious Code to Customer.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, SLAB MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SLAB EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SLAB DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. SLAB DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. SLAB DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE Services IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. SLAB EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES.
7.1 Defense of Infringement Claims. Slab will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: a) Customer gives Slab prompt written notice of the Claim; b) Customer grants Slab full and complete control over the defense and settlement of the Claim; c) Customer provides assistance in connection with the defense and settlement of the Claim as Slab may reasonably request; and d) Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services). Customer will not defend or settle any Claim without Slab’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Slab will have sole control over the defense and settlement of the Claim.
7.2 Indemnification of Infringement Claims. Slab will indemnify Customer from and pay a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 7.1; b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Slab’s consent after Slab has accepted defense of the Claim); and c) all amounts that Slab agrees to pay to any third party to settle any Claim under Section 7.1.
7.3 Exclusions from Obligations. Slab will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; b) the Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; c) use of the Services by Customer for purposes not intended or outside the scope of the license granted to Customer; d) Customer’s failure to use the Services in accordance with instructions provided by Slab, if the infringement or misappropriation would not have occurred but for such failure; or e) any modification of the Services not made or authorized in writing by Slab where such infringement or misappropriation would not have occurred absent such modification.
7.4 Limited Remedy. This Section 6 states Slab’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
8.1 Defense. Except to the extent a claim is caused by Slab’s duty to indemnify Customer under Section 7, Customer will defend Slab from any actual or threatened third party Claim arising out of or based upon Customer’s breach of any of the provisions of this Agreement if: a) Slab gives Customer prompt written notice of the Claim; b) Slab grants Customer full and complete control over the defense and settlement of the Claim; c) Slab provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and d) Slab complies with any settlement or court order made in connection with the Claim. Slab will not defend or settle any Claim without Customer’s prior written consent. Slab will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
8.2 Indemnification. Customer will indemnify Slab from and pay a) all damages, costs, and attorneys’ fees finally awarded against Slab in any Claim under Section 8.1; b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Slab in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 8.1.
9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EACH PARTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH OTHER PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SLAB’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SLAB DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SLAB TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10.1 Relationship. Slab will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
10.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
10.3 Subcontractors. Slab may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Slab remains responsible for all of its obligations under this Agreement.
10.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 10.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
10.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco, California in connection with any action arising out of or in connection with this Agreement.
10.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
10.9 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
10.10 Entire Agreement. This Agreement, including all Order Forms, is the final and complete expression of the agreement between these parties regarding Customer’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Slab may provide. No employee, agent, or other representative of Slab has any authority to bind Slab with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Slab will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Slab specifically agrees to such provision in writing and signed by an authorized agent of Slab.