Customer Agreement

Last updated September 29, 2017.

This Azion Customer Agreement (“Agreement”) establishes the general conditions applicable to your access and use of Azion Products and Services, and is entered into between Azion Technologies LLC, a company registered in Delaware, USA (“Azion”) and you or the entity that represents (“Customer”), jointly referred to as “Parties” and individually and indistinctly as “Party”. From now on, you declare that you are legally able to enter into contracts and have legal authority with the entity you represent.

1. Use of Products and Services

1.1. Customer may access and use the Azion Products and Services according to this Agreement. A Service Level Agreement may apply to Products and Services. Customer is required to comply with all of the terms in this Agreement and all laws, rules and regulations applicable to the use of our Products and Services, including our Terms of Service, Acceptable Use Policy and other terms set in Section 14, as well as any documents attached hereto.

1.2. To access our Products and Services, Customer must hold an account with Azion associated to a valid e-mail address. Information on initial provisional access will be emailed by Azion. Once expressly allowed, Customer may create a main account and multiple access accounts, but always one account per email address. Customer is responsible for setting their policy on the access password use and all activities taking place through their account, regardless of whether such activities are carried out by Customer, Customer’s employees or a third party (including their contractors and representatives) and, save for a breach of this Agreement, Azion and our affiliates will not be liable for unauthorized access to Customer’s account. Customer will immediately notify Azion in case Customer believes an unauthorized third party has been using Customer’s account or in the event Customer’s account information has been lost or stolen.

2. Statement of Liability

2.1. Customer is entirely responsible for developing, implementing, operating, keeping and using Customer’s Content and our Products and Services, such as (a) technical operations, including controlling and managing the use and overage use and ensuring the calls made to any Product or Service are compatible with Service APIs; (b) compliance with our Acceptable Use Policy, other policies and the law by Customer’s Content; (c) any Customer Content-related needs; (d) properly handling and processing notices (even those received by Customer’s affiliates) sent by any persons or entities claiming Customer’s Content violates their rights, including notices under the Digital Millennium Copyright Act (DMCA).

2.2 Customer states to be entirely aware of the risks involved in using the internet, which may lead to significant losses, especially financial ones, and Customer agrees Customer is solely responsible for taking precautions regarding such risks which include, but are not limited to, Content theft, theft of signal, hotlinks, improper redistribution of Content, hacker attacks, copyright violations, and others.

2.3 Azion will not be accountable for any direct or indirect damage or losses Customer may suffer or cause to third parties as a result of Customer’s use of the internet. In case any lawsuits or administrative proceedings are brought against Azion by third parties as a result of damage or losses caused by Customer, Azion will notify Customer and Customer will take over as defendant and request the immediate exclusion of Azion. Nevertheless, in case Azion is forced to make any expenditures as a result of the action, Customer will fully reimburse Azion within 10 (ten) business days counted from the date of our request.

2.4 Customer is responsible for properly configuring and using our Products and Services and for taking steps to keep Customer’s Content safe, protected and duly backed up, which may include not only the use of encryption technology to protect Customer’s Content from unauthorized access but also making backups of said content on a regular basis.

2.5 Azion login credentials are for Customer’s sole use. Customer is not allowed to sell, assign, or sublicense them to any other entities or persons other than by creating an Azion account for Customer’s representatives and contractors working on Customer’s behalf.

2.6 Customer will be solely accountable for the use of our Products and Services, End Users, and Customer’s Content, and must make sure all End Users fulfill their duties hereunder and that the terms in each End User’s Agreement are in accordance with this Agreement. In case Customer becomes aware of any breach of duties hereunder by an End User, Customer must immediately terminate said user’s access to Customer’s Content and our Products and Services.

3. Notices

3.1. Azion will notify you by: (a) posting a notice to the Azion Real Time Manager; or (b) sending a message to the e-mail addresses then associated to Customer’s account. Notices posted to Azion’s website or the Azion Real Time Manager will take effect when they are posted online, and notices sent via e-mail will take effect when our e-mail is sent, regardless of whether Customer has actually received them or not. Customer is required to keep a working e-mail address to receive notices.

3.2 Any notices Customer needs to provide Azion regarding any and all issues deriving from this Agreement will be sent in writing and deemed delivered upon acknowledgment of receipt in person, via an express delivery service, a letter sent against receipt or registered mail to Azion at the address first given above. Notices delivered in person will take effect immediately. Notices sent via an express delivery service will take effect on the business day immediately following their delivery. Notices sent via a letter sent against receipt or registered mail will take effect 3 (three) business days after their delivery.

4. Changes

4.1. Except as otherwise provided for, Azion may change the terms and conditions of this Agreement or any other documents attached hereto, such as the Service Level Agreement, Terms of Service and Acceptable Use Policies, at any time by posting a revised version on the Azion website and notifying Customer according to Section 3 above. The revised documents will take effect 30 days from being posted and, by continuing to use Azion’s Products and Services after said timeframe, Customer agrees to the new terms and conditions.

4.2 Azion may change or discontinue any Products or Services, in addition to changing or removing characteristics and features, including those related to APIs. Azion will use reasonable commercial efforts to keep on providing support to the previous version except when (a) a security or intellectual property issue is raised; (b) doing so becomes economically or technically cumbersome, or (c) we are required to stop in order to comply with the law or government orders. Azion will notify Customer about any discontinuance of Products and Services purchased and substantial changes that may negatively impact Customer.

5. Temporary Suspension

5.1. Azion may immediately suspend Customer’s or any End User’s right to access or use any portion or all of the Products and Services upon notice in case:

(a) The use or purchase of our Products and Services by Customer or End User (i) poses a security risk to our Products and Services or any third parties; (ii) comes to damage any other Azion Customers’ Products and Services, systems or Content; (iii) creates a liability on the part of Azion, our affiliates or any third parties; (iv) fails to comply with documents and good practices suggested by Azion, or (v) may be fraudulent;

(b) Customer or any End User has violated this Agreement, including in the event Customer has provided misleading information regarding Customer’s registration data or about the ownership of Customer Content copyright;

(c) Customer is behind on payments owed by Customer, including occasional costs for excess use, for over 5 (five) days; or

(d) Customer fails to operate in Customer’s regular course, makes an assignment to the benefit of creditors or a similar disposal of Customer’s assets, or has become subject to bankruptcy, reorganization, liquidation, dissolution or a similar procedure.

5.2. In the event Azion suspends Customer’s access rights, as well as Customer’s use or any portion or all of our Products and Services:

(a) Suspension days will neither be discounted from nor made up for in future bills;

(b) Customer will remain the sole party responsible for the amounts applicable hereto with respect to any Products and Services to which Customer continues to have access;

(c) Azion will not delete any portion of Customer’s Content as a result of Customer’s suspension, save for any other reason described herein.

5.3. Azion’s right to suspend Customer’s access or use, or the use by any End User, is additional to Azion’s right to terminate this Agreement under Section 6.

6. Term and Termination

6.1 This Agreement takes effect when Customer clicks on the “I agree” button or checkbox shown in this document or uses any of Azion’s Products and Services for the first time, and will remain in effect until it is terminated by either Party for any reason by (i) sending notice and (ii) closing Customer’s account for all services to which Azion provides an online account closing mechanism. This Agreement may also be terminated for cause at any time in the event of any non-performance or substantial breach hereof by the other Party, provided the breaching Party has failed to remedy the fault or material violation within the 30 (thirty) day timeframe the aggrieved Party will grant the breaching Party, via notice to be sent once the fault or material breach has been detected.

6.2 Additionally, Azion may immediately terminate this Agreement without notice (a) for cause, in case anything Customer or any End User does or fails to do results in the suspension described in Section 6.1; (b) in case Azion’s relationship with a third-party supplier of software or other technologies used by Azion to provide our Products and Services ends or requires changes to the way we provide software or other technologies; (c) in case Azion believes the supply of our Products and Services may create a technical or economic encumbrance or substantial security risk for Azion; (d) to comply with the law or requirements from government agencies; or (e) in case the use of our Products and Services by Customer or any End User, or yet the supply of Products and Services by Azion to Customer or any End User, has become impracticable or unviable for any legal or regulatory reason.

6.3 Upon the termination hereof: (i) all Customer’s rights agreed upon herein will be immediately extinguished, except as provided for in Section 6.4; (ii) Customer will remain liable for all amounts owed, including all those agreed upon in this Agreement or any documents attached hereto, in addition to overages and all fees and expenses incurred, including expenses incurred in the post-termination period; (iii) at Azion’s discretion, Customer will immediately return or destroy all Azion Contents held by Customer; and (iv) Sections 2.1, 6.3, 8, 10, 11, 12, 13, 14 will survive the termination hereof as applicable.

6.4 Upon the termination hereof, except in case Azion discontinues Customer’s use of our Products and Services under either Section 6.1 or 6.2, (i) Azion will take no steps to block or remove Customer’s Content as a result of said termination; and (ii) Azion will allow Customer to retrieve Customer’s Content from our Products and Services only when Customer has paid all of the amounts owed hereunder.

6.5 This Agreement’s terms will apply to any use of our Products and Services after the termination hereof, and Customer will pay the amounts owed as set forth in Section 7.

7. Compensation and Adjustments

7.1 Azion calculates and bills the amounts owed on a monthly basis but we may do billing more often in case we suspect Customer is fraudulent or a default risk. Customer will pay the owed amounts applicable to our Products and Services as described on the Azion website and using one of the payment options supported by Azion. All amounts owed by Customer hereunder will be paid to Azion without offsetting or counter charges, and with no deductions or withholding.

7.2 The prices charged for any new Product, Service or new Product or Service feature will take effect when we post the updated prices on the Azion website, except when we expressly state otherwise in a notice. We may raise or add new fees and change the way we calculate and bill any existing Products and Services used by Customer. Azion may annually adjust prices upon sending you notice at least 30 days in advance, and may charge interest at the rate of 1.5% a month (or at the highest interest rate allowed by law, in case it is lower) on all amounts in arrears, until the date payment is made.

8. Exclusive Rights

8.1 To Azion, Customer holds all rights and ownership over Customer’s Content. Except as provided for in Section 8, Azion will have no rights to Customer’s Content or similar intellectual property rights. Customer authorizes the use, posting, transformation and alteration of Customer’s Content by Azion for the supply of Products and Services to Customer and any End User, or to comply with any requests by a regulatory or government agency (including subpoenas and court orders).

8.2 Customer represents and warrants that (a) Customer holds all of the rights, ownership and control relative to Customer’s Content; (b) Customer holds all of the rights to Customer’s Content necessary to grant the rights mentioned herein; and (c) no Customer’s Content or End User’s use of Customer’s Content or our Products and Services will breach our Acceptable Use Policy.

8.3 Neither Customer nor any End User may use our Products and Services in any way or for any purposes other than as expressly provided for in this Agreement. Neither Customer nor any End User may or attempt to (a) modify, alter, tamper with, fix or otherwise create services derived from any software included in our Products and Services (except when Customer is provided with a separate license expressly authorizing the creation of derivative services); (b) reverse engineer, take apart or decompile our Products and Services or use any other processes or procedures to obtain the source code of any software used in our Products and Services; (c) access or use our Products and Services in order to avoid incurring fees or exceed use rates, or (d) resell or sublicense our Products and Services. All licenses given to Customer hereunder are conditioned to Customer’s permanent performance of this Agreement, which will be immediately terminated in case Customer fails to comply with any terms or conditions hereof. While this Agreement remains in effect and after that, Customer will not, nor will Customer authorize, help or encourage any third party to, make any claims against us or any of our affiliates, customers, suppliers, business partners or licensors with respect to any patent violations or other violations of intellectual property rights over the Products and Services used. Customer is only allowed to use Azion brands according to the guidelines on the use of registered trademarks.

8.4 In the event Customer makes any suggestions for Product and Service improvement, such as source code, features, handbooks, and others, all property rights on and control of said suggestions will be held by Azion, even when Customer has said such suggestions are confidential. Azion and our affiliates may use those suggestions unrestrictedly. Customer hereby irrevocably assigns all property rights on and control of Customer’s suggestions to Azion, and agrees to provide Azion with any assistance Azion may need in order to document, improve and uphold our rights over such suggestions.

9. Confidentiality and Disclosure

9.1. The parties agree that all information exchanged relative to this Agreement is to be deemed confidential. In the event any of the parties is court-ordered to disclose any confidential information, the party so ordered must promptly provide the other with written notice about that fact, as long as court records are not under seal, so that said other party may have time enough to file the applicable defense, seek provisional remedies, or pursue another proper course of action, as the case may be.

9.2 Customer will take all reasonable steps to prevent the disclosure, dissemination or unauthorized use of Azion’s Confidential Information, including, at least, the same steps Customers would take to protect Customer’s similar confidential information.

9.3 This non-disclosure commitment will remain in force for 5 (five) years following the termination hereof, and the confidentiality of any and all data or information obtained as a result of this Agreement must be protected. Azion will not be liable for any violations of data or information resulting from the acts of employees, agents or persons authorized by Customer, or for those deriving from third-party criminal or unlawful acts.

9.4 Without Azion’s authorization, Customer will not release any notes to the press or make public announcements related to this Agreement or Customer’s use of our Products and Services. Customer will not misrepresent or embellish the relationship between Customer and Azion (including by stating or implying that Azion supports, sponsors, endorses or contributes to Customer or Customer’s commercial efforts). Additionally, Customer will not state or imply there is any relationship or affiliation between Azion and Customer or any other persons or entities, except when expressly authorized by Azion. Customer agrees Azion may show Customer’s brands in any and all types of media, even after the termination hereof, in materials including, albeit not limited to, customer portfolios and case studies.

10. Indemnification

10.1. Customer will defend, indemnify and exempt Azion, our affiliates and licensors and each one of our respective employees, directors, chief officers and representatives from any and all claims, damage, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) stemming from or related to any third-party claims regarding (a) Customer’s or any End User’s use of our Products and Services (including any activities through Customer’s Azion account and use by Customer’s employees and personnel); (b) Customer’s or any End User’s breach of this Agreement or violation of applicable laws; (c) Customer’s Content or combination of Customer’s Content and other applications, contents or processes, including any claims involving an alleged violation or misappropriation of third-party rights by Customer’s Content, or the use, development, design, production, ad or sale of Customer’s Content; or (d) a litigation between Customer and any End User. In case Azion or our affiliates are forced to respond to third-party summons or another court order or lawsuit, Customer will also reimburse Azion for the attorneys’ fees paid, as well as for the time and materials used by Azion’s employees and contractors to respond to a third-party summons or said court order or lawsuit, based on the rates then charged per hour.

10.2 Azion will promptly notify Customer about any claim as mentioned in Section 10.1. Azion’s failure to immediately notify Customer will only impact Customer’s duties under Section 10.1, considering Azion’s omission impairs Customer’s ability to defend the claim. Customer may (a) retain the attorney of Customer’s choice (subject to Azion’s written consent) to defend any claims; and (b) settle the claim as Customer deems appropriate, as long as Customer has obtained prior written consent from Azion between entering into any such agreement. Azion may also take over control over the claim’s defense and settlement at any time.

11. Disclaimer

11.1. Azion and our affiliates make no representations or warranties whatsoever, whether expressed, implied, legal or otherwise as to our Products and Services or Customer’s Content, including to the effect that our Products and Services or Third-Party Contents will be uninterrupted, error-free or free from harmful components, or that any Contents, including Customer’s Content or Third-Party Content, is safe and will not be lost or damaged. Except as barred by law, Azion, our affiliates and licensors disclaim any and all responsibility for warranties, including implied ones, regarding marketability, satisfactory quality, suitability for a given purpose, non-violation or peaceable use and any warranties deriving from any business practices or previously established use.

12. Limitation of Liability

12.1. Azion and our affiliates and licensors will not be liable to Customer for any direct, indirect, emerging, special, or unforeseen damage or exemplary pecuniary penalty (including damages for loss of profit, goodwill, use or data), even when one of the Parties had been notified about the possibility of such losses. Furthermore, neither Azion nor any of our affiliates or licensors will be liable for compensation, reimbursements or damages stemming from (a) Customer’s inability to use our Products and Services, including as a result of any (i) termination or suspension of this agreement or Customer’s use of or access to our Products and Services; (ii) Azion’s discontinuance or any or all of our Products and Services; or, (iii) without limitation to any duties under the SLA, any unforeseen or unscheduled downtime of all or a portion of our Products and Services for any reason, including as a result of a power outage, system failures or other interruptions; (b) costs to purchase substitute assets or services; (c) Customer’s investments, expenditures or commitments regarding this Agreement or Customer’s use of or access to our Products and Services; or (d) any unauthorized access, alteration or elimination, destruction, damage, loss or failure regarding the storage of Customer’s Content or other data. In any event, the total liability on the part of Azion and our affiliates and licensors is limited to the amount actually paid by Customer hereunder and for the service which has led to the claim over the 12 (twelve) months prior to said claim.

13. Miscellaneous Provisions

13.1. Azion will use commercially reasonable efforts to provide our services according to the SLA and notify Customer up to 10 (ten) days in advance about interruptions needed for technical adjustments or maintenance to our Products and Services. This information duty does not apply to emergency cases, meaning those which may jeopardize the regular operation of our Products and Services or the safety of our entire customer base against detected vulnerabilities.

13.2 To clarify possible doubts about technical terms used on the internet and which may be relevant for the interpretation of this Agreement or our Products and Services, the definitions contained in the glossary herein, Azion’s website or issued by NIST (*National Institute of Standards and Technology, U.S. Department of Commerce*).

13.3. This Agreement sets forth the parties’ full understanding relative to the subject matter hereof and supersedes all prior agreements, whether written or verbal, between the parties relative to the subject of the provisions herein.

13.4 Customer’s Agreement and any documents attached thereto are complementary. However, in the event of a conflict between them, the provisions in the attached document will prevail. Similarly, in case a supplementary document is added and the documents clash, the latest attached document will prevail.

13.5 Azion and Customer are independent parties and none of the parties or any of their respective affiliates represents the other party in any way or has powers to bind said other party. For their products, both parties reserve the right to (a) develop or commission the development of services, concepts, systems or techniques which are similar to or complete the products, services, concepts or techniques developed or provided by the other party; and (b) help third-party developers or system integrators that may offer Products and Services competing against the other party’s Products and Services.

13.6 Customer may not assign this Agreement, nor delegate or sublicense any of Customer’s rights hereunder without Azion’s prior written consent. Any assignment or transfer in violation of this Section will be null. Subject to the foregoing, this Agreement will be for the benefit of and binding upon the parties and their respective successors and assigns.

13.7 This Agreement does not create any third-party rights for any individuals or entities other than the parties hereto.

13.8 Azion and our affiliates will not be liable for any delays or failures to fulfill any duties agreed upon herein when such delays or failures derive from force majeure beyond our reasonable control, including misfortunes, employment claims or other disruptions to facilities, electricity grid, telecommunications or other public service failures, earthquakes, storms or other natural disasters, blockages, embargos, mutinies, government acts or orders, terrorist attacks or war.

13.9 Azion’s failure to enforce any provision hereof will in no way be construed to be a present or future waiver of such provision, nor in any way affect Azion’s right to enforce each and every such provision thereafter. All waivers on our part must be in writing to be valid.

13.10 In case any portion of this Agreement is deemed not valid or unfeasible, the remaining portions will remain in full force and effect. Any portions deemed not valid or unfeasible will be construed according to the effect and intention of the original portion. In case such construction is not possible, the portions deemed not valid or unfeasible will be excluded from this Agreement and the remainder hereof will remain in full force and effect.

13.11 The parties hereby state they have freely entered into this Agreement, which has been drawn up in strict compliance with the boundaries of its economic or social purpose, good faith and proper practice. The parties further state they are not in a state of duress and have ample experience enabling them to fulfill all of the terms and conditions which make up their rights and duties hereunder.

13.12 Customer agrees that upon accepting the services purchased and paying for them Customer will become legally bound by the terms set forth in this Agreement and under no circumstances whatsoever may Customer allege Customer’s representatives or charter documents lack the power or other formalities to do so.

13.13 Any disputes or claims in any way related to Customer’s use of our Products and Services will be resolved in a binding manner via arbitration instead of being heard by the courts, except when Customer is allowed to submit Customer’s claims to the small claims courts in case said claims meet the applicable requirements. There are no judges or jury in arbitration procedures, and there is limited review of arbitration decisions by the courts. However, an arbitrator may individually issue decisions about the same damages and remedies subject to court decisions (including provisional remedies, declarations or statutory damages), and must keep to the terms of this Agreement the same way a court would. To initiate an arbitration procedure, Customer must send an e-mail requesting the arbitration and describing Customer’s claim to our legal department at legal@azion.com. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Filing, administrative and arbitrators’ fees will be governed by AAA’ rules and paid by the defeated party. The Parties agree that any dispute resolution procedures will be individually conducted instead of via class actions and consolidated or representative lawsuits. In case for any reason a claim is to be submitted to a judge or court instead of to arbitration, Azion and Customer agree to waive any rights to a judgment by the courts of law. According to the provisions in Section 8.4, the parties agree they may submit to the tribunal a case to establish whether there has been a violation or any undue use of intellectual property rights, as well as to enforce payment and collect any amounts owed under this Agreement.

13.14 This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware.

14. Terms and Definitions

Azion Real Time Manager – or Azion Manager, Azion’s online control and management interface, accessed through the internet, that allows the management of Products and Services.

Content – Data, text, audio, video, images, software (including server images), web applications, and other contents.

Azion Content – Content provided by Azion or our affiliates relative to our Products and Services, documents, code samples, software libraries, command line tools, and other related technologies.

Third-Party Content – Content provided to Azion by any third parties through our Products and Services, Azion Real Time Manager or Azion’s website.

Customer’s Content – Content which Customer or any End User (a) hosts, runs or accesses via our Products and Services, (b) interfaces with our Products and Services, or (c) uploads/downloads to or from our Products and Services using Customer’s account or otherwise transfers, processes, uses or stores relative to Customer’s account.

Service Level Agreement – or SLA, defines aspects related to the quality at which our Products and Services are to be provided, available at https://www.azion.com/en/docs/agreements/sla/.

Products and Services – Azion-provided Products and Services (including related APIs) and Azion Content, hereunder.

Acceptable Use Policy – Policy which defines the acceptable use of our Products and Services, available at https://www.azion.com/en/docs/agreements/acceptable-use-policy/.

Azion website – It is the https://www.azion.com website or any other website or page belonging to Azion, or a website replacing this one, as long as it is indicated by Azion.

Terms of Service – Rights and restrictions related to certain Products and Services, available at https://www.azion.com/en/docs/agreements/tos/.

End User – Any individual or entity that directly or indirectly through another user (a) accesses or uses Customer’s Content; or (b) otherwise accesses or uses our Products and Services using Customer’s account.