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Parashift Marketplace Terms of Service

1. Your Agreement with Parashift

1.1 Your use of Parashift’s products and services pursuant to orders is governed by these terms of service (“Agreement”). “Parashift” means Parashift AG, a Swiss corporation located at Hauptstrasse 134 in 4450 Sissach, Switzerland. “Your”, “You” and “Customer” are used interchangeably and have the same meaning.

1.2 By accessing or using the Parashift Offerings and/or Services, or by clicking on the checkbox that demonstrates acceptance of this Agreement, you are agreeing to the terms of this Agreement. If you are entering into this Agreement on behalf of an entity, then you represent and agree that you have the legal authority to bind that entity to this Agreement. If you do not accept the terms of this Agreement, then you cannot use the Parashift Offerings and/or Services.

1.3 Certain defined terms are set forth in section 15 of this Agreement.

2. Cloud Service Terms

2.1 Generally: Subject to payment of the applicable fees to the Marketplace Platform Provider, Parashift will make the Cloud Service available to you for access and use solely for your own business operations and in accordance with the terms of this Agreement. You are responsible for Users’ compliance with this Agreement.

2.2 Acceptable Use: You shall not resell, sublicense, rent or lease the Parashift Platform, or otherwise make it available to anyone other than your users. You shall not use the Parashift Platform to violate the security or integrity of any network, computer or communications system, software application, or network or computing device. You shall not make network connections to any users, hosts, or networks unless you have permission to communicate with them, and may not use manual or electronic means to avoid any use limitations placed on the Cloud Service, such as access and storage restrictions. Parashift may, but has no obligation to (a) investigate any violation of this provision or misuse of the Parashift Platform, or (b) remove any content, or disable access to any resource, that violates the foregoing.

2.3 Content Restrictions and Responsibilities: You shall not transmit content that is illegal, harmful, fraudulent, infringing, offensive, or in violation of any individual’s or entity’s privacy rights. As more fully described in the Security Addendum (defined below), you shall not transmit PCI DSS-regulated data unless you message-level encrypt such data. If you are a Covered Entity or Business Associate (as defined under HIPAA) you shall not transmit protected health information through the Parashift Platform without having entered into a Business Associate Agreement (“BAA”) with Parashift. You are solely responsible for (i) the legality of content, (ii) ensuring compliance with all privacy laws applicable to the collection and provision of content; (iii) your configuration and use of the Parashift Platform, and (iv) taking appropriate action to secure, protect and backup content, which may include use of encryption to protect content from unauthorized access. You are responsible for communicating with the Parashift Platform through encrypted and authenticated connections, as may be required by Parashift, and for transmitting all content using such security methods.

2.4 Privacy and Security: Unless a separate data processing agreement has been entered into by the parties that specifically references this Agreement, each party shall comply with the Data Processing Agreement (“DPA”) located at https://parashift.io/en/en/compliance/. Parashift will use commercially reasonable administrative, physical and technical safeguards designed to prevent unauthorized access, use or disclosure of content. Parashift will not access any content except as necessary to provide the Parashift Platform Service or Support Services, to enforce the provisions of this Agreement, or for a Permitted Disclosure (as defined in section 7.1). You acknowledge that the content of the Security Agreement is subject to technical progress and development and that Parashift may update or modify the Security Addendum from time to time; provided, however, that such updates and modifications will not result in the degradation of the overall security of the Parashift Platform.

2.5 Registration: You must register and setup an authorized account to use the Parashift Platform. You must keep the registration information accurate and complete. You are responsible for the security of your User IDs and passwords and for the use of your accounts and will immediately notify Parashift of any unauthorized use at support@parashift.io.

2.6 Cloud Service Level: For applicable orders, Parashift will provide an uptime service level agreement for the Parashift Platform (“SLA”).

2.7 Cloud Service Proof Of Value: A “Proof of Value” is a short-term evaluation of the Parashift Platform, pursuant to an order that is specifically labeled “Proof of Value.” If you order a Proof of Value, the terms of this section 2.7 govern that use and control over any conflicting provision of this Agreement; provided however that the Proof of Value order will be subject to all applicable provisions of this Agreement that are not in conflict with the provisions of this section 2.7. You may use the Proof of Value only for (a) internal testing and evaluation purposes on a development or non-production cluster, and (b) the period stated in the order. If the order does not state a term, the term for the Proof of Value will be for 30 days beginning on the date you are provided access to the Parashift Platform. You will not have access to any data or content after the Proof of Value term ends. Parashift will provide the Proof of Value: (a) without Support Services; (b) “AS IS”; and (c) without indemnification, warranty, or condition of any kind. No SLA will apply to the Proof of Value. You must not transmit production data or data regulated by law or regulation into the Parashift Platform during the Proof of Value term. Certain features or functionality of the Parashift Platform may not be available in a Proof of Value. Providing any Proof of Value, or any feature or functionality in a Proof of Value, does not constitute a Parashift commitment to offer it or the Proof of Value on a generally available basis.

2.8 Support Services: Parashift will provide Support Services for the Parashift Platform, as provided in Parashift’s applicable support policy and in accordance with the level of Support Services purchased. If you do not purchase a different level of Support Services, Parashift will provide a “Free” level of Support Services. If you order Premier Support Services, then you may not change or cancel Premier Support Services during the term of the applicable order.

3. Parashift Platform Subscription Terms

3.1 License: Subject to payment of the applicable fees to the Marketplace Platform Provider and the terms of the applicable order, Parashift grants to you a limited, world-wide, non-exclusive, non-transferable, right and license (without right to sublicense) to install and use the Parashift Platform Software, during the applicable Subscription Term, solely for your and your Affiliate’s internal business operations, in accordance with the terms of this Agreement and the applicable order.

3.2 Affiliates and Service Providers: You may permit your Affiliates to use Subscriptions purchased by you hereunder, provided that (i) you shall remain responsible for each such Affiliate’s compliance with the terms of this Agreement, and (ii) any such use together with your use must be, in the aggregate, within the limitations set forth in the applicable order. You may permit your third-party service providers to set up and use the Parashift Platform Software to provide outsourced services to you, and you will be solely responsible for such service provider’s compliance with this Agreement.

3.3 Restrictions on Use: You shall not, and shall not permit or encourage any third party to: (a) use the Parashift Platform Software for third-party training, software-as-a-service, time-sharing or service bureau use, (b) modify the Parashift Platform Software, or (c) disassemble, decompile or reverse engineer any portions of the Parashift Platform Software that are not provided in source code format, or otherwise attempt to gain access to the source code to such Parashift Platform Software (or the underlying ideas, algorithms, structure or organization of the object code in the Parashift Platform Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that you intend to disassemble, decompile or reverse engineer the Parashift Platform Software, you shall first provide Parashift with written notice thereof.

3.4 Parashift Audit Rights: Parashift reserves the right, upon prior notice and during normal business hours, to audit your usage of the Parashift Platform Software and your compliance with the terms of the applicable order. If Parashift determines as a result of such audit that any fees are due from you under the terms of this Agreement, you shall immediately pay such amounts due along with interest in an amount equal to one and one-half percent (1.5%) of the underpayment per month, or at the highest interest rate permitted by applicable law, whichever is less, calculated monthly from the date the underpayment was due until the date payment is made; and if such amount exceeds five percent (5%) of the cumulative fees previously paid under this Agreement, you shall reimburse Parashift for the reasonable cost of such audit.

3.5 Delivery: The Parashift Platform Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer. The parties shall reasonably cooperate to effectuate such delivery.

3.6 Support Services: Parashift will provide Support Services in accordance with Parashift’s applicable support policy specified in the applicable order.

4. Services

Your order may include training services (“Education Services”) and/or professional services (“Professional Services”). Collectively, the Education Services and Professional Services are called the “Services”. Parashift will provide you with the Professional Services and/or Education Services purchased under an order in accordance with the order. All Professional and/or Education Services must be performed within one (1) year of the order effective date, and Parashift will not be obligated to perform any undelivered Services after such date.

5. Orders, Fees, and Related

5.1 Orders Generally: All orders are subject to the terms of this Agreement and the applicable Marketplace Platform Provider’s terms. Fees will be as specified in the order and/or Parashift Platform user interface, as applicable, are non-cancelable, non-refundable (unless expressly stated in this Agreement), and will be billed and payable according to the Marketplace Platform Provider’s terms.

5.2 Parashift Platform Orders: Unless otherwise specified in a written order for the Parashift Platform, your use of the Parashift Platform is subject to the fee schedule specified in the Parashift Platform user interface or documentation, and usage fees will be calculated, billed and payable according to the Marketplace Platform Provider’s terms.

5.3 Late Payments: Upon notice to you, Parashift may suspend your access to the Parashift Platform Service or Support Services, or delete your Parashift Platform account, for failure to pay any amounts owed when due.

6. Intellectual Property Ownership

6.1 Parashift Materials: Parashift or its licensors retain all rights, title and interest, in and to all intellectual property rights in the Parashift Platform Software, including all related and underlying technology and documentation; and any derivative works, changes, corrections, bug fixes, enhancements, updates, modifications, or improvements of any of the foregoing (“Modifications”), and including any Feedback (collectively, “Parashift Materials”). Except for the express limited rights set forth under this Agreement, no right, title or interest in any Parashift Materials is granted to you. You acknowledge that the licenses granted in this Agreement do not include the right to prepare any Modifications of the Parashift Materials. Parashift reserves all rights not expressly granted in this Agreement. No rights are granted by implication.

6.2 Content: Except for the limited rights granted under this Agreement, as between you and Parashift, you retain all rights, title and interest, including all intellectual property rights, in the content. Content does not include data that Parashift collects as specified in section 12 (Usage Data).

6.3 Feedback: You have no obligation to provide Parashift any suggestions, enhancement requests, recommendations, or other feedback regarding Parashift’s products and services (“Feedback”). However, Parashift may use and include any Feedback that you provide in Parashift’s products and services without restriction or payment.

7. Confidentiality

7.1 Confidentiality Obligations: Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (“Confidential Information”). Notwithstanding any failure to so designate it, the Parashift Platform Software is Parashift’s Confidential Information, and content is your Confidential Information. Each party shall (a) maintain the confidentiality of the other party’s Confidential Information using at least a reasonable degree of care; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose Confidential Information to any party except to its and its Affiliate’s employees, subcontractors and agents as is reasonably required in connection with this Agreement and who are subject to confidentiality obligations at least as protective as those set forth in this section. The foregoing obligations will not apply to Confidential Information of the other party which (i) is or becomes publicly known without breach of this Agreement; (ii) is discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; or (iii) is otherwise known to the receiving party without confidentiality restrictions and through no wrongful conduct of the receiving party. Receiving party may disclose Confidential Information to the extent required by law or court order if the receiving party provides prompt notice and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure (“Permitted Disclosures”).

7.2 Injunctive Relief: Any breach or threatened breach of this section may cause irreparable harm to the disclosing party for which there is no adequate remedy at law. Therefore, the disclosing party will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law.

8. Warranties and Disclaimers

8.1 Parashift Platform Software: Parashift represents and warrants that for a period of thirty (30) days after the first delivery of the Parashift Platform Software to you, the Parashift Platform Software in the form delivered by Parashift will perform substantially in accordance with the applicable documentation. This limited warranty shall not apply if the Parashift Platform Software has been altered or modified or used other than in accordance with this Agreement or the instructions furnished by Parashift. Parashift’s entire obligation and your sole remedy under the limited warranty set forth herein will be to correct any failure of the Parashift Platform Software to conform to its documentation.

8.2 Support Services: Parashift represents and warrants that it shall perform Support Services in a professional manner, employing a standard of care, skill and diligence consistent with industry standards. Parashift’s entire obligation and your sole remedy for a breach of the foregoing warranty will be for Parashift to use commercially reasonable efforts to re-perform the Support Services in accordance with the applicable Support Services terms.

8.3 Notice of Warranty Claim: The warranties under sections 8.1 through 8.2 will not apply unless you notify Parashift of the applicable nonconformity within thirty (30) days of the date on which you first became aware of such applicable nonconformity.

8.4 Warranty Disclaimer: EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION, PARASHIFT MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PARASHIFT PLATFORM SOFTWARE, SUPPORT SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER. PARASHIFT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PARASHIFT DOES NOT WARRANT THAT THE PARASHIFT PLATFORM SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS DISCLAIMER DIMINISHES ANY OBLIGATIONS EXPRESSLY STATED IN THE SERVICE LEVEL AGREEMENT REFERENCED IN THIS AGREEMENT OR AN ORDER HEREUNDER.

9. Indemnification

9.1 By Parashift: Parashift will defend you from and against any claim, demand, or lawsuit brought against you by a third party alleging that the Parashift Platform, as made available to you by Parashift and used pursuant to this Agreement, infringes such third party’s intellectual property rights, and Parashift will pay such damages or costs as are finally awarded against you or agreed to in settlement attributable to any such action, provided that you give Parashift (a) prompt notification in writing of any such action; (b) sole control of the defense or settlement of such action (provided any settlement releases you from all liability); and (c) all reasonable information and assistance, at Parashift’s expense. If the Parashift Platform becomes, or in the opinion of Parashift is likely to become, the subject of such an infringement claim, Parashift shall, at its option and expense, either: (i) procure the right for you to use the allegedly infringing element of the Parashift Platform, at no charge; (ii) replace or modify, in whole or in part, the Parashift Platform to make it non-infringing; or (iii) if neither (i) or (ii) are commercially available, terminate the applicable order and refund a pro rata portion of any fees paid by you under such order.

Parashift assumes no liability hereunder for any claim of infringement if such claim is based on: (a) Content, (b) use of software other than a current unaltered release of the Parashift Platform Software, as provided by Parashift to you; (c) the combination, operation or use of the Parashift Platform with non-Parashift programs or hardware, if the claim would not have arisen but for such combination, operation, or use, (d) any alteration or modification of the Parashift Platform Software by a party other than Parashift, other than in accordance with and pursuant to this Agreement. THIS SECTION SETS FORTH PARASHIFT’S ENTIRE LIABILITY AND OBLIGATION AND YOUR SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

9.2 By You: You will defend Parashift from and against any claim, demand, or lawsuit brought against Parashift by a third party arising out of or relating to any content, including any claim involving alleged infringement or misappropriation of third-party rights by the content or any breach of section 2.3 (Content Restrictions and Responsibilities), and you will pay such damages or costs as are finally awarded against Parashift attributable to any such action, provided that Parashift gives you (i) prompt notification in writing of any such action; (ii) sole control of the defense or settlement of such action (provided any settlement releases Parashift from all liability); and (iii) all reasonable information and assistance, at your expense.

10. Limitation of Liability

10.1 Exclusions and Limitations: NOTHING IN THIS AGREEMENT LIMITS EITHER PARTY’S (I) LIABILITY FOR PERSONAL INJURY, DEATH OR WILLFUL MISCONDUCT, (II) LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW, OR (III) OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION).

10.2 EXCEPT AS SET FORTH IN SECTION 10.1,

(A) NEITHER PARTY (NOR ITS SUPPLIERS) WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR LOSS OF BUSINESS PROFITS, ANTICIPATED SAVINGS, OR DATA, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND

(B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR DAMAGES OR LIABILITY OF ANY TYPE EXCEED THE AMOUNT PAID OR PAYABLE BY YOU PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

THESE EXCLUSIONS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11. Term and Termination

11.1 Term: This Agreement commences on the earlier of the effective date of the initial order under this Agreement or the date you first access or use any Parashift Platform Service or Subscription, and will remain in effect until terminated as provided below.

11.2 Termination: Unless otherwise stated in an applicable order, you may discontinue your use of the Parashift Platform at any time for any reason by following the process in the Parashift Platform interface to “Delete” your purchased Parashift Platform. Discontinuing use of the Parashift Platform will not relieve you of any incurred fees and payment obligations. Either party may terminate this Agreement or an order upon written notice in the event the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after written notice of such breach. The termination of an order will not automatically result in the termination of this Agreement. Either party may also terminate this Agreement immediately if the other party (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.

11.3 Effect of Termination: The provisions of this Agreement that by their nature extend beyond the termination of this Agreement will survive termination. Upon termination of this Agreement or expiration of an order, you will immediately cease use of and access to the Parashift Platform (if ordered), and if applicable the Support Services, and delete all products of the Parashift Platform Software and related documentation. You are solely responsible for exporting content from the Parashift Platform prior to expiration or termination of this Agreement. You acknowledge that following termination you will have no further access to any content.

12. Usage Data

Parashift may from time to time use and process data about your use of the products and services, for the purposes of creating statistics and analytics data. Parashift may use such data for its own business purposes, including to maintain and improve its products and services and to monitor and analyze its activities in connection with the performance of such services. In addition, you acknowledge that certain features of the Parashift Platform Software and Third Party Software may be configured to collect and report telemetry data to Parashift. You may enable or disable transmission of such telemetry data to Parashift at any time.

13. Additional Marketplace-Specific Terms

13.1 Parashift Platform Commencement Date: In certain scenarios, the commencement date of the Parashift Platform may be up to several days later than the date of the order.

13.2 Reporting Times: Reporting time on metered billing will be shifted by several hours to accommodate varying reporting requirements by the applicable Marketplace.

13.3 Renewals: Any commitment orders subject to discounts and Rate Cards will not automatically renew, regardless of whether you have checked a “renew” or auto-renewal box on the applicable Marketplace.

Last modified: August 23 2021

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