PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS ARE A BINDING CONTRACT FOR THE USE OF FASTLY, INC.’s SERVICES.
BY ACCESSING OR USING FASTLY SERVICES YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT AND ITS AFFILIATES). IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE FASTLY’S SERVICES.
THESE TERMS WERE LAST UPDATED ON DECEMBER 8, 2014. PRIOR VERSIONS OF FASTLY’S TERMS OF SERVICE ARE AVAILABLE AT http://docs.fastly.com.
1. Agreement. These Fastly Terms of Service (these “Terms”) are made by and between the party on whose behalf they are accepted (“Subscriber”) and Fastly, Inc. (“Fastly”) and are effective as of the date they are accepted by Subscriber. The complete subscription agreement (the “Agreement”) that grants Subscriber a limited subscription to use Fastly’s online, support, professional, or other services (the “Services”) and Subscriber’s provision of data, credentials, configurations to the Services (“Subscriber Data”) is comprised, collectively and in order of precedence, of the documents listed below:
1.1 Any Fastly online registration form or ordering document entered into by Subscriber and Fastly (or one of Fastly’s authorized agents), which incorporates these Terms (each a “Service Order”);
1.2 These Terms;
1.3 The online documentation available at http://docs.fastly.com (the “Documentation”); and
1.4 The Fastly Acceptable Use Policy available at http://www.fastly.com/acceptable-use (the “AUP”).
2. Trial Accounts. Unpaid trial and developer accounts are made available for Subscribers to test the functionality of the Services without incurring payment obligations (“Trial Accounts”). Once a Subscriber’s use of a Trial Account exceeds an equivalent of US$50 in total usage charges as determined by the rates set forth on http://www.fastly.com/pricing, Fastly may suspend the Trial Account unless Subscriber converts its Trial Account to a paid account with a minimum monthly commitment of US$50. Additional terms and conditions presented to Subscriber in connection with the registration for a Trial Account shall be binding on Subscriber. Subscribers should review the Documentation thoroughly before executing a Service Order or exceeding US$50 of usage charges. ALL TRIAL ACCOUNTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). FASTLY DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION 14) FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA AND ANY DISRUPTION TO SUBSCRIBER’S OR THIRD PARTY SERVICES CONFIGURED TO WORK WITH THE TRIAL ACCOUNT. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. FASTLY’S INDEMNITY OBLIGATIONS UNDER SECTION 17 DO NOT APPLY TO TRIAL ACCOUNTS.
3. Fastly’s Obligations.
3.1 Services. Fastly will make the Services available to Subscriber as specified in Service Orders.
3.2 Documentation. Fastly will make available Documentation that describes, for each of the Services: (a) the features, functionality, and performance of the Services; (b) the Services’ administrative, physical, and technical safeguards for protection of the security and integrity of the Services and Subscriber Data (the “Security Measures”); (c) certifications and compliance programs applicable to the Services; and (d) any terms provided in connection with technology or third party services incorporated into the Services.
3.3 Personnel and Performance. Fastly will be strictly responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. Fastly enters into the Agreement on behalf of its Affiliates. An “Affiliate” of a party is any entity (a) that the party Controls; (b) that the party is Controlled by; or (c) with which the party is under common Control, where “Control” means direct or indirect control (including by ownership) of fifty percent (50%) of an entity’s voting interests.
3.4 Protection of Subscriber Data. Fastly will maintain the Security Measures only as described in the Documentation. Fastly will store, process, transmit and disclose Subscriber Data only according to the Documentation. The Services, independent of Subscriber Data, will not transmit code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses (“Malicious Code”).
3.5 Compliance with Laws. Fastly shall comply with all laws and governmental regulations applicable to the Services.
4. Subscriber’s Obligations.
4.1 Subscriber Data and Subscriber Offerings. Subscriber shall only provide or enable the provision of Subscriber Data to its end users and use the Services according to, in order of precedence, the Service Orders, these Terms, the Documentation and the AUP. Subscriber shall integrate the Services with its own offerings that provide substantial additional functionality to its end users (“Subscriber Offerings”).
4.2 Personnel, End Users and Performance. Subscriber shall be strictly responsible for the performance of its personnel (including employees and contractors) and end users and their use of the Services and Subscriber data in compliance with the Agreement, including use that Subscriber could not have prevented. Subscriber enters into the Agreement on behalf of its Affiliates.
4.3 Non-Fastly Services. Subscriber may choose to use services not provided by Fastly (“Non-Fastly Services”) with the Services and in doing so grants Fastly permission to interoperate with the Non-Fastly services as directed by Subscriber’s use of the Non-Fastly Services. Subscriber’s acquisition of Non-Fastly Services, and any exchange of data between Subscriber and any provider of Non-Fastly Services, is governed solely by the terms of the relationship between Subscriber and the provider of the Non-Fastly Services. Subscriber bears (and releases Fastly from) all risk and liability associated with the use of Non-Fastly Services, including disclosure, modification or deletion of Subscriber Data. Unless specified in a Service Order: (a) Fastly does not warrant or support Non-Fastly Services and (b) Fastly shall have no liability for, and Subscriber is not relieved of any obligations or entitled to any refund, credit, or other compensation due to, any unavailability of the Non-Fastly Services or any loss of ability for Fastly to interoperate with the Non-Fastly Services.
4.4 Responsibilities. Subscriber shall be responsible for (a) the accuracy, quality, and legality of Subscriber Data and the means by which Subscriber acquired Subscriber Data; (b) using commercially reasonable efforts to prevent unauthorized access to or use of the Services; (c) promptly notifying Fastly of any unauthorized access or use of the Services; (d) publicly displaying its notice and takedown process under Title II of the Digital Millennium Copyright Act of 1998 (Section 512 of the U.S. Copyright Act) and any other intellectual property safe harbor law or regulation applicable to subscriber (each a “Safe Harbor Statute”); (e) complying with any notices received under a Safe Harbor Statute relating to Subscriber Data or Subscriber’s use of the Services and (f) providing Fastly with an email address (an “Abuse Contact”) that Fastly can provide to third parties that inquire about Subscriber Data or Subscriber’s use of the Services.
4.5 Restrictions. Subscriber shall not (a) use the Services to store, transmit or display Subscriber Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (b) make the Services available to, or use the Services for the benefit of, anyone other than Subscriber’s own personnel and the end users of Subscriber Offerings; (c) use the Services to store, transmit or display Malicious Code; (d) interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (e) attempt to gain unauthorized access to any of Fastly’s systems or networks; (f) permit direct or indirect access to or use the Services in a way that circumvents a usage limit set forth in the Agreement; (g) sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as integrated with Subscriber Offerings; (h) copy the Services or any part, feature, function, or user interface thereof; (i) access the Services or use the Documentation to develop a competitive product or service; or (j) reverse engineer the Services (to the extent a restriction on reverse engineering is permitted by law).
5. Acceptable Use. Fastly may provide the Abuse Contact to third parties inquiring about Subscriber Data or Subscriber’s use of the Services. If Fastly receives information that Subscriber Data present in the Services, the use of the Services by Subscriber, its personnel or its end users may violate Subscriber’s obligations under Section 4 (Subscriber’s Obligations), Fastly will notify Subscriber by e-mail to the Abuse Contact (an “Abuse Notice”) and require Subscriber to take reasonably appropriate action, including cessation of problematic usage, removal of the Subscriber Data or suspension of an end user’s access to the Services. If Subscriber does not promptly take the required action within the time period set forth in the Abuse Notice, Fastly shall have the right to suspend Subscriber’s access to the Services until the requested action has been taken; provided that Subscriber shall have at least two (2) business days to take required action that involves the removal of Subscriber Data that is not in violation of Section 4.5 (Restrictions). In the event that Subscriber fails to promptly take required action as set forth in an Abuse Notice within ten (10) days, or on two or more occasions during any rolling twelve-month period, Fastly may terminate this entire Agreement immediately for cause. All limitations of access, suspensions, and terminations for cause shall be made in Fastly’s sole discretion and that Fastly shall not be liable to Subscriber or any third party for any termination of Subscriber’s account or access to the Services. Fastly may, without notice to Subscriber, report to the appropriate authorities any conduct by Subscriber that Fastly believes violates applicable law; provide any information Fastly has about Subscriber, or Subscriber’s users or Subscriber’s use of the Services and cooperate in response to a formal or informal request from a law enforcement or regulatory agency investigating any such activity, or in response to a formal request in a civil action that on its face meets the requirements for such a request. Subject to Fastly’s obligations under Section 3 (Fastly’s Obligations), Fastly may, but is not obligated to, monitor or review the Subscriber Data at any time.
6. Term and Termination.
6.1 Term. These Terms are effective during the Term of any Service Order that incorporates them and remain in effect until Subscriber ceases use of the Services. The term of a Service Order shall be monthly, unless the Service Order specifies a longer term, such as in connection with a minimum commitment. Service Orders shall renew for successive terms, unless Subscriber gives Fastly at least one (1) month’s notice of termination. If Subscriber continues to use the Services following termination of all Service Orders, Subscriber will be liable for usage charges at Fastly’s then current list prices.
6.2 Termination for Cause. In addition to Fastly’s right to terminate the entire Agreement under Section 3 (Acceptable Use), Subscriber or Fastly may terminate the entire Agreement for cause upon 30 days written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period
6.3 Survival. Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including the Subscriber Obligations, Confidentiality, Proprietary Rights, Fees and Payment, Indemnification, Limitation of Liability, Term, and Agreement Sections.
7. Beta Services. From time to time, Fastly may offer services identified as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). Subscriber may accept or decline Beta Services. Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by Subscriber for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available. Fastly may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. FASTLY DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
8. Fees and Payment.
8.1 Fees. Subscriber will pay all fees specified in Service Orders and provide accurate and updated billing contact information. Minimum commitments in Service Orders are (a) based on Services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term. Fees paid for minimum commitments and actual usage are not refundable. Subscriber’s payments of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement.
8.2 Utilization Spikes. Subscriber’s bandwidth utilization, measured in megabits per second, will be sampled every five minutes on a region-by region basis each month (the “Samples”). Subscriber’s “Average Utilization” for a region in a month will be the average of the Samples. Subscriber’s “Peak Utilization” for a region in a month will be calculated by the 95th percentile method, according to which the Samples will then be ordered from highest to lowest, and the highest five percent (5%) of Samples will be discarded and the remaining highest Sample will be Subscriber’s Peak Utilization for the region in that month. Subscriber’s “Permitted Utilization” in a month for a region will be five (5) times Subscriber’s Average Utilization in that month for that region. A “Utilization Spike” will occur if Subscriber’s Peak Utilization exceeds its Permitted Utilization in a region. In any month that a Utilization Spike occurs, in addition to the fees specified in a Service Order, Subscriber will pay for the amount by which Subscriber’s Peak Utilization exceeds its Average Utilization according to the then-current regional spike rates.
8.3 Payments By Credit Card. If Subscriber is paying for Services by credit card, Subscriber will provide Fastly with valid credit card information and promptly notify Fastly of any changes necessary to charge the credit card. The provision of credit card information to Fastly authorizes Fastly to charge the credit card for all Services specified in a Service Order, and any renewal subscription terms as set forth in Section 6.1 (Term), either (a) monthly or (b) according to the billing frequency stated in the Service Order.
8.4 Invoicing Terms. If the Service Order specifies that payment will occur by a method other than a credit card, Subscriber will provide a purchase order number in the applicable amount (or reasonable alternative proof of Subscriber’s ability to pay the fees specified in a Service Order), and promptly notify Fastly of any changes necessary for payment of an invoice. Fastly will invoice Subscriber either monthly or according to the Service Order. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net 15 days from the invoice date. If any invoiced amount is not received by Fastly by the due date, then without limiting Fastly’s rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) Fastly may condition future subscription renewals and Service Orders on shorter payment terms.
8.5 Suspension of Service and Acceleration. If any amount owing by Subscriber is 30 or more days overdue (or 10 or more days overdue in the case of invoices to be paid by credit card), Fastly may, without limiting any rights and remedies, accelerate Subscriber’s unpaid fee obligations to become immediately due and payable, and suspend the provision of Services to Subscriber until the overdue amounts are paid in full. Fastly will give Subscriber at least 10 days prior notice that its account is overdue, in accordance with Section 19 (Manner of Giving Notice), before suspending services to Subscriber.
8.6 Payment Disputes. Fastly will not exercise any rights to suspend Services, accelerate payments, impose late charges or change payment terms under Section 8.4 (Invoicing Terms) for so long as Subscriber is: (a) disputing the charges in good faith and (b) cooperating diligently to resolve the dispute.
8.7 Refund or Payment upon Termination. If Subscriber terminates the Agreement in accordance with Section 6.2 (Termination for Cause), Fastly will refund any prepaid fees covering the remainder of the term of all Service Orders after the effective date of termination. If the Agreement is terminated by Fastly in accordance with Section 6.2 (Termination for Cause), Subscriber will pay any unpaid fees covering the remainder of the term of all Service Orders. In no event will termination relieve Subscriber of its obligation to pay any fees payable for the period prior to the effective date of the termination for cause.
8.8 Taxes. Fees for Services do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its Service Orders. If Fastly is obligated by law to pay or collect Taxes for which Subscriber is responsible, Fastly will invoice Subscriber and Subscriber will pay that amount unless Subscriber can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Fastly is solely responsible for taxes assessable against its income, property, and employees.
9.1 Confidential Information. “Confidential Information” means all information about the relationship created by the Agreement disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Confidential Information of each party includes the terms and conditions of the Agreement and all Service Orders, including pricing, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Recipient; (b) was known to the Recipient prior to disclosure by Discloser, as proven by records of Recipient; (c) is disclosed to Recipient by a third party who did not directly or indirectly obtain the information from Discloser subject to any confidentiality obligation; or (d) is at any time independently developed by Recipient as proven by records of Recipient.
9.2 Protection of Confidential Information. Except as provided in Section 9.3 (Compelled Disclosure) Recipient shall not disclose or otherwise make available any Confidential Information of the Discloser to anyone except those of its employees, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party shall safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information.
9.3 Compelled Disclosure. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, then to the extent legally permitted, Recipient shall provide the Discloser with prior notice of the compelled disclosure and reasonable assistance, at Discloser’s cost, if the Discloser wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required, and shall be subject to confidentiality protections to the extent practicable. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.
10. Licenses and Proprietary Rights.
10.1 Subscriber Data. Subscriber grants Fastly a worldwide, nonexclusive, revocable, and limited license during term of Subscriber’s use of the Services to store, copy, transmit, and display Subscriber Data, and to interoperate with any Non-Fastly Services as necessary in order for Fastly to provide the Services in accordance with the Agreement. Subject to this limited license, Fastly acquires no right, title, or interest from Subscriber under the Agreement in or to Subscriber Data.
10.2 Feedback. Subscriber grants to Fastly worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Subscriber.
10.3 Deliverables. Fastly hereby grants Subscriber a worldwide, perpetual, non- exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Fastly for Subscriber and delivered by Fastly to Subscriber in connection with support or professional services (“Deliverables”). Subject to Subscriber’s ownership of its proprietary and Confidential Information disclosed to Fastly under Section 9 (Confidentiality) Fastly shall retain all ownership rights to the Deliverables.
10.4 Proprietary Rights. The Services and the Documentation are the proprietary information of Fastly. Subject to the limited rights expressly granted in the Agreement, Fastly and Fastly’s licensors reserve all right, title, and interest in and to the Services and the Documentation, including all related intellectual property rights. No rights are granted to Subscriber except as expressly set forth in the Agreement. No rights are granted to Fastly except as expressly set forth in the Agreement.
11. Government Rights. The Services may include access to software. In such case, such software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Subscriber is an agency of, or contractor to, the US Government, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Subscriber is a government agency that has a need for rights not granted under the Agreement, it must negotiate with Fastly to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.
12. Export Compliance. The Services and Documentation may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.
13. Anti-corruption. Subscriber has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Fastly personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Subscriber becomes aware of any violation of the above restriction, Subscriber will promptly notify Fastly’s General Counsel at email@example.com.
14. Limitation of Liability. A PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 8 (FEES AND PAYMENT) OR THE SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 17 (INDEMNIFICATION).
15. Exclusion of Consequential and Related Damages. IN NO EVENT WILL A PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
16.2 Support and Professional Services Warranty. The support and professional services specified in the applicable Service Order will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. Subscriber’s exclusive remedies for breach of the warranty in this Section 16.2 shall be either (a) re-performance of the Support or Professional Services by Fastly; (b) to claim the credits set forth in the applicable service level agreement; or (c) to exercise the express rights described in Sections 6.2 (Termination For Cause) and 8.7 (Refund or Payment upon Termination).
16.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 16.1, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
17.1 Indemnification by Fastly. Fastly will defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by a third party alleging that the use of the Services in accordance with the Agreement infringes or misappropriates the third party’s intellectual property rights (a “Claim Against Subscriber”), and will indemnify Subscriber from any damages, attorney fees, and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a court-approved settlement of, a Claim Against Subscriber, provided Subscriber (a) promptly gives Fastly written notice of the Claim Against Subscriber; (b) gives Fastly sole control of the defense and settlement of the Claim Against Subscriber (except that Fastly may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability related to the Claim Against Subscriber); and (c) gives Fastly all reasonable assistance, at Fastly’s expense. If Fastly receives information about an infringement or misappropriation claim related to the Services, Fastly may in its discretion and at no cost to Subscriber (x) modify the Service so that it no longer infringes or misappropriates, without breaching Fastly’s obligations under Section 3 (Fastly’s Obligations); (y) obtain a license for Subscriber’s continued use of that Service in accordance with the Agreement; or (z) terminate Subscriber’s subscriptions for that Service upon 30 days’ written notice and refund Subscriber any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from Subscriber Data, Subscriber’s use of Beta Services, a Non-Fastly Application or Subscriber’s breach of the Agreement.
17.2 Indemnification by Subscriber. Subscriber will defend Fastly against any claim, demand, suit or proceeding made or brought against Fastly by a third party alleging that Subscriber Data, or Subscriber’s use of the Services in breach of the Agreement, infringes or misappropriates the third party’s intellectual property rights, violates applicable law or has caused harm to the third party (a “Claim Against Fastly”), and will indemnify Fastly from any damages, attorney fees and costs finally awarded against Fastly as a result of, or for any amounts paid by Fastly under a court-approved settlement of, a Claim Against Fastly, provided Fastly (a) promptly gives Subscriber written notice of the Claim Against Fastly; (b) gives Subscriber sole control of the defense and settlement of the Claim Against Fastly (except that Subscriber may not settle any Claim Against Fastly unless it unconditionally releases Fastly of all liability related to the Claim Against Fastly); and (c) give Subscriber all reasonable assistance, at Subscriber’s expense.
17.3 Additional Indemnities. For purposes of this Section 17, (a) a Claim Against Fastly shall include a claim against Fastly, Fastly’s Affiliates, and Fastly’s or its Affiliates’ officers, directors, and employees and (b) a Claim Against Subscriber shall include a claim against Subscriber, Subscriber’s Affiliates, and Subscriber’s or its Affiliates’ officers, directors, and employees.
17.4 Exclusive Remedy. This Section 17 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 17.
18.1 Either party may assign the Agreement in its entirety, without the other party’s consent (a) to its Affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, unless the Subscriber is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of Fastly, in which case Fastly may, but is not required to, terminate the Agreement upon written notice, and in the event of such a termination, Fastly will refund to Subscriber any prepaid fees covering the remainder of the initial term of all Service Orders.
18.2 Except as permitted in Section 18.1, neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld).
18.3 The Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
19. Manner of Giving Notice.
19.2 Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the first business day after sending by email (provided email shall not be sufficient for notices an indemnifiable claim). Billing-related notices to Subscriber shall be addressed to the relevant billing contact designated by Subscriber. All other notices to Subscriber shall be addressed to the relevant Services system administrator designated by Subscriber, or as set forth on the Cover Page to the Agreement. Notices should be addressed to firstname.lastname@example.org or Fastly, Inc. Attn: General Counsel, PO Box 78266, San Francisco, CA 94107.
20. Governing Law and Jurisdiction. The governing law of California and controlling United States federal law will apply in any lawsuit arising out of or in connection with the Agreement and the Federal courts located in San Francisco, California, USA have exclusive jurisdiction over any such lawsuit.
21. Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
22. Third-Party Beneficiaries. Subscriber acknowledges that Fastly’s licensors and technology providers have required Fastly to agree to certain provisions with Subscriber, including Sections 1 (Subscriber Obligations), 10 (Licenses and Proprietary Rights), 14 (Limitation on Liability), 15 (Exclusion of Consequential and Related Damages) and 17 (Indemnification). There are no other third-party beneficiaries under the Agreement.
23. Entire Agreement. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Fastly and Subscriber each represent that it has validly entered into the Agreement and has the legal power to do so. Any term or condition stated in a Subscriber purchase order or other Subscriber order documents (excluding Service Orders) is void. No modification, amendment, or waiver of any provision of the Agreement will be effective unless it exists in writing and is signed by the party against whom the modification, amendment, or waiver is to be asserted. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect.