Updated September 9, 2020
This Crunchy Bridge Terms of Service (this "Agreement") contains the terms and conditions that govern your access to and use of the Crunchy Bridge Offering (as defined below) and is an agreement between Crunchy Data Solutions, Inc. and its related companies ("Crunchy Data") and you or the entity you represent ("you" or "your"). This Agreement takes effect when you click an "I Accept" button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the "Effective Date"). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
Crunchy Bridge provides a fully managed Crunchy PostgreSQL offering hosted on top of cloud infrastructure. Crunchy Bridge makes available a cluster of Crunchy PostgreSQL database instances, with additional functionality such as backups and failover enabled as part of the managed service offering. Crunchy Bridge continuously monitors and maintains availability on the Customer’s cluster and when availability issues arise will work to restore availability without customer intervention. The terms and conditions of this Agreement apply to Customer’s access and use of the Crunchy Bridge services, including any technology, information, software, materials, and updates that Crunchy Data makes available to you as part of such services (collectively, the "Crunchy Bridge Offering").
You may access and use the Crunchy Bridge Offering in accordance with this Agreement. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Crunchy Bridge Offering. To access the Crunchy Bridge Offering, you must have a Crunchy Bridge account associated with a valid email address and a valid form of payment. From time to time, Crunchy Data may apply upgrades, patches, bug fixes, or other maintenance to the Crunchy Bridge Offering. We agree to use reasonable efforts to provide you with prior notice of any scheduled maintenance (except for emergency maintenance), and you agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about. Crunchy Data may change or discontinue any of the services associated with the Crunchy Bridge Offering from time to time.
You agree that you will protect the privacy and legal rights of the any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account (collective "End Users"). For the avoidance of confusion, the term "End User" does not include individuals or entities when they are accessing or using the Crunchy Bridge Offering or any content under their own account, rather than under Your Account. You must provide legally adequate privacy notice and protection for End Users.
You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Crunchy Bridge Offering. You are responsible for End Users’ use of Your Content and the Crunchy Bridge Offering. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under Your Account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to Your Account.
In order to use the Crunchy Bridge Offering, you must provide certain information about yourself to create an account ("Your Account"). You represent and warrant that: (a) all required account information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You will only create one account per email address. You are required to maintain a valid credit card on Your Account at all times that you use the Crunchy Bridge Offering. You acknowledge and agree that any credit card and related billing, payment and contact information that you provide to Crunchy Data may be shared by Crunchy Data with companies who work on Crunchy Data’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Crunchy Data and servicing your account. You may delete Your Account at any time, for any reason, by following the instructions on the website. You are responsible for maintaining the confidentiality of Your Account login information and are responsible for all activities that occur under Your Account. Crunchy Data is not liable for any loss or damage arising from your failure to comply with these requirements. Crunchy Bridge log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf. Crunchy Data may suspend or terminate Your Account in accordance with the "Temporary Suspension" and the "Term and Termination" sections below.
In connection with Your use of the Crunchy Bridge Offering, you or any End User may (i) transfer software (including machine images), data, text, audio, video or images to Crunchy Data for Crunchy Data’s processing, storage or hosting or (ii) create computational results that you or any End User derive from the foregoing ((i) and (ii) collectively, "Your Content"). You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content; (b) you have all rights in Your Content necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Crunchy Bridge Offering will violate the Crunchy Data’s Acceptable Use Policy. You consent to Crunchy Data’s use of Your Content to provide the Crunchy Bridge Offering to you and any End Users.
Crunchy Data calculates and bills fees and charges monthly. Crunchy Data may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Crunchy Bridge Offering as described on the Billing Policy using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Crunchy Data may change the pricing for the Services by updating the Services fees. Fees and charges for any new service or new feature of a service will be effective when we post updated fees and charges on the Billing Policy, unless we expressly state otherwise in a notice. All payments are non-refundable. Crunchy Data may increase or add new fees and charges for any existing services you are using by giving you at least 30 days’ prior notice. Crunchy Data may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for paying all reasonable expenses and attorneys’ fees that Crunchy Data incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights).
You hereby authorize Crunchy Data to bill your credit card as described above. If any fee cannot be charged to your credit card for any reason, Crunchy Data may provide you, via email, notice of such non-payment and a link for you to update your payment information. If non-payment is not remedied within seven (7) days after receiving such notice, then Crunchy Data may terminate the Service as described below.
Crunchy Data may suspend your or any End User’s right to access or use any portion or all of the Crunchy Bridge Offering immediately upon notice to you if we determine: (a) your or an End User’s use of the Crunchy Bridge Offering (i) poses a security risk to the Crunchy Bridge Offering or any third party, (ii) could adversely impact our systems, the Crunchy Bridge Offering or the systems or content of any other Crunchy Bridge customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent; (b) you are, or any End User is, in breach of this Agreement; (c) you are in breach of your payment obligations under Section 7; or (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If Crunchy Data suspends your right to access or use any portion or all of the Crunchy Bridge Offering, you remain responsible for all fees and charges you incur during the period of suspension.
9.1 The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 9. You may terminate this Agreement for any reason by providing us notice and closing Your Account. Crunchy Data may terminate this Agreement (a) for any reason by providing you at least 30 days’ advance notice and (b) for cause immediately upon notice to you if Crunchy Data has the right to suspend under Section 8 or in order to comply with the law or requests of governmental entities.
9.2 Upon termination any outstanding balance becomes immediately due, you remain responsible for all fees and charges you have incurred through the date of termination and are responsible for any fees and charges you incur during the post-termination period. Except for Section 4, Section 7, Section 9.2, Section 10, Section 12, Section 13, Section 14, Section 17 and Section 18 which will continue to apply in accordance with their terms, upon termination all of your rights under this Agreement immediately terminate.
9.3Unless we terminate your use of the Crunchy Bridge Offering immediately for cause, during the 30 days following the date of termination: (a) we will not take action to remove from the Crunchy Bridge systems any of Your Content as a result of the termination; and (b) we will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement. There is no guarantee that Your Content will be retrievable after the date thirty (30) days following termination.
9.4For any use of the Crunchy Data services, including Crunchy Bridge Offering, after termination, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 5.
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. We may charge and you will pay applicable taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect taxes from you. For clarity, Crunchy Data is solely responsible for taxes assessable against it based on its income, property and employees.
12.1You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any thirdparty claim concerning: (a) your or any End Users’ use of the Crunchy Bridge Offering (including any activities under your Crunchy Bridge account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, End Users or Your Content; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates. Subject to the limitations in this Section 12, you will defend Crunchy Data, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
12.2Subject to the limitations in this Section 12, Crunchy Data will defend you and your employees, officers, and directors against any third-party claim alleging that the Crunchy Bridge Offering infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement. For any claim covered by this Section 12.2, Crunchy Data will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement. Neither party will have obligations or liability under this Section 12.2 arising from infringement by combinations of the Services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, Crunchy Data will have no obligations or liability arising from your or any End User’s use of the Services after Crunchy Data has notified you to discontinue such use. The remedies provided in this Section 12.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Your Content.
12.3The obligations under this Section 12 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party. 13. Disclaimers.
THE CRUNCHY BRIDGE OFFERING IS PROVIDED "AS IS." EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE CRUNCHY BRIDGE OFFERING WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
CRUNCHY DATA OR ITS AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER CRUNCHY DATA NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE CRUNCHY BRIDGE OFFERING, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE CRUNCHY BRIDGE OFFERING, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES ASSOCIATED WITH THE CRUNCHY BRIDGE OFFERING, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 12.2, CRUNCHY DATA AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY CRUNCHY DATA UNDER THIS AGREEMENT FOR THE CRUNCHY BRIDGE OFFERING DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 14 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
We may modify this Agreement at any time by posting a revised version on the Crunchy Bridge Site or by otherwise notifying you in accordance with Section 16. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.
All communications and notices made or given pursuant to this Agreement must be in the English language and be delivered as follows:
Communications and Notices To You.We may provide any notice to you under this Agreement by: (i) posting a notice on the Crunchy Bridge Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Crunchy Bridge Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
Communications and Notices To Crunchy Data.To give us notice under this Agreement, you must contact Crunchy Data by personal delivery, overnight courier or registered or certified mail to the mailing address: Crunchy Data Solutions, Inc., Attn: General Counsel, 162 Seven Farms Drive, Suite 220 Charleston, SC 29492. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
"Confidential Information" means any information that is disclosed by one party ("Discloser") to the other ("Recipient"), which, at the time it is disclosed, in any form, is identified or designated by Discloser as "confidential or proprietary" or reasonably should be known by Recipient to be proprietary or confidential information of Discloser. The terms of this Agreement will be deemed "Confidential Information." Confidential Information will exclude information that: (a) is rightfully known to Recipient at the time of disclosure; (b) has become publicly known through no wrongful act of Recipient; (c) has been rightfully received by Recipient from a third party without restriction on disclosure and without breach of any agreement with Discloser; (d) has been independently developed by Recipient as evidenced by appropriate documentation; (e) has been approved for release by written authorization executed by an authorized officer of Discloser; or (f) is required to be disclosed by Recipient pursuant to a requirement of law, provided, that prior to any such disclosure, Recipient will notify Discloser as soon as possible, in writing, of the proposed disclosure and cooperate fully with Discloser to protect against such disclosure and/or obtain a protective order narrowing the scope of the compelled disclosure and protecting the confidentiality of the Confidential Information. Recipient will use the Confidential Information only to perform its obligations under this Agreement and disclose Discloser’s Confidential Information only to those Recipient personnel with a need to know. Except as expressly permitted or required under this Agreement, or such limited disclosures in confidence as may be reasonably necessary to either party’s attorneys and accountants, Recipient will not use Discloser’s Confidential Information or disclose such Confidential Information to any third party, either during the term of this Agreement or thereafter, without the prior written consent of Discloser. All Confidential Information remains the property of the Discloser and no license or other rights in the Confidential Information is granted hereby. All Confidential Information Discloser provides to Recipient is provided "AS IS" and without any warranty, express, implied, or otherwise, regarding its accuracy or performance. Upon termination of this Agreement, or at any time at the request of Discloser, Recipient will return to Discloser all of Discloser’s Confidential Information, in whatever form, which is in its custody or control.
18.1 Assignment.Customer will not assign any of its rights or delegate any of its duties under this Agreement without the express prior written consent of Crunchy Data, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
18.2 Governing Law.This Agreement and the rights and obligations of the parties will be governed by the laws of the United States and of the State of New York without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Alexandria, Virginia, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. In the event the Uniform Computer Information Transactions Act or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
18.3 Force Majeure.We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
18.4 Relationship of the Parties.No employment relationship is created by this Agreement. At all times during the term hereof, Crunchy Data will retain its independent contractor status and use its own discretion in performing the services, subject to general direction by Customer and to the specific requirements of this Agreement. Nothing in this Agreement will be construed as creating a partnership, franchise, employment, joint venture or agency relationship or fiduciary duty of any kind between the parties. No party will have any power and will not hold itself out as having the power to act for or in the name of or to bind the other. This Agreement is not made for the benefit of any third parties.
18.5 No Third-Party Beneficiaries.Except as set forth in Section 12, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
18.6 Severability.If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
18.7 Waiver.All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.8 Entire Agreement.This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.