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Terms of Service

Effective: May 30, 2023

This Meltano Cloud Terms of Service Agreement (this “Agreement”) governs the access and use of the Meltano Cloud Service (as defined in Section 1 below).  This Agreement is a legally binding contract entered into between Meltano, Inc., a Delaware corporation (“Meltano”) and the person or entity on whose behalf access to the Meltano Cloud Service, whether that is you or your employer or another person or entity (”you” or the “Customer”).  Please note that Meltano may modify the terms of this Agreement in accordance with Section 14.

THIS AGREEMENT CONTAINS DISPUTE RESOLUTION PROVISIONS (SEE SECTION 15) WHICH, WITH LIMITED EXCEPTION, REQUIRE (1) MELTANO AND CUSTOMER TO SUBMIT DISPUTES IT MAY HAVE AGAINST THE OTHER TO BINDING AND FINAL ARBITRATION, AND (2) THAT MELTANO AND CUSTOMER EACH WAIVE ITS RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, GROUP, OR REPRESENTATIVE ACTION OR PROCEEDING.

ACCEPTANCE OF THIS AGREEMENT:  BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, ENTERING INTO OR ACCEPTING ANY MELTANO WRITTEN OR ELECTRONIC SERVICE ORDERS OR ONLINE SIGN-UP, REGISTRATION OR ODER FLOW THAT REFERENCES THIS AGREEMENT (EACH, A “SERVICE ORDER”), DEPLOYING THE MELTANO CLOUD SERVICE, OR OTHERWISE USING OR ACCESSING THE MELTANO CLOUD SERVICE IN ANY MANNER: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); AND (2) YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT (WHICH MEANS THAT YOU ARE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE MELTANO CLOUD SERVICE ON BEHALF OF ANOTHER PERSON OR ENTITY (E.G.) YOUR COMPANY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT, AND USE THE MELTANO CLOUD SERVICE, ON BEHALF OF SUCH OTHER PERSON OR ENTITY).

IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER AS SET FORTH ABOVE, DO NOT ACCEPT THIS AGREEMENT OR OTHERWISE ACCESS OR USE THE MELTANO CLOUD SERVICE (OR ANY PART THEREOF).  UPON YOUR ACCEPTANCE OF THIS AGREEMENT AS SET FORTH ABOVE, THIS AGREEMENT WILL BE BINDING UPON BOTH MELTANO AND CUSTOMER.

  1. OVERVIEW OF MELTANO CLOUD.  Meltano owns and operates Meltano Cloud, a proprietary hosted software and technology platform enabling the management and automation of data pipeline infrastructures (collectively, the “Meltano Cloud Service”), using source connectors and destination connectors to extract, load and/or transport data (“Connectors”).  Connectors may be developed and provided by Meltano, including, the Connectors listed in Meltano’s Connector Hub available at https://hub.meltano.com, and any custom Connectors that Meltano may agree to build for Customer (collectively, “Meltano Connectors”), or developed by third parties and made available from the open source community (“Third Party Connectors”).  For the avoidance of doubt, Connectors (which, for clarity, such term includes the Meltano Connectors and Third Party Connectors) are not licensed under this Agreement and such Connectors may be used independently of the Meltano Cloud Service.  Connectors are expressly excluded from the term “Meltano Cloud Service” as used throughout this Agreement.  All Meltano Connectors are licensed under the MIT License and subject to any additional documentation, terms and conditions accompanying the applicable Meltano Connectors (whether specified in the applicable GitHub repository or otherwise provided by Meltano).  All Third Party Connectors are subject to the applicable license, terms and conditions for the Third Party Connector.
  2. ELIGIBILITY; CUSTOMER ACCOUNTS & AUTHORIZED USERS
    1. Eligibility.  Customer represents and warrants to Meltano that: (a) Customer, if an individual, is at least 18 years of age or the applicable age of majority in your jurisdiction; (b) Customer has not previously been suspended or removed from using any portion of the Meltano Cloud Service; and (c) Customer is not, nor is any Authorized User, located in a territory where U.S. businesses are prohibited from engaging in business (such as Cuba, Iran, North Korea, Sudan, or Syria), or has been designated a Specially Designated National, Denied Person, or Denied Entity by the U.S. government.
    2. Accounts.  In order to use the Meltano Cloud Service, Customer must register an account (“Account”), and may be required to register sub-Accounts for each individual (including, employees, contractors or agents of Customer) who have been authorized by the Customer to access and use the Meltano Cloud Service on behalf of Customer (each an “Authorized User”).  In registering an Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date account registration information, which may include, name, location, e-mail address or other contact information, and billing information, relating to Customer and any Authorized Users (“Account Data”), that is true, accurate, current, up to date, and complete.  Customer agrees that it will not, and will not permit any Authorized User or other third party to create an Account or sign up to access the Meltano Cloud Service using a false identity or fictitious name or information.  Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting the passwords, license keys and/or other access credentials for the Account.  Customer is solely responsible for any activity originating from the Account, including, without limitation, any access of the Account by Authorized User and/or sub-accounts created by Authorized Users under the Account, regardless of whether such activity is authorized by Customer.  Customer agrees to notify Meltano immediately of any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.
    3. Administrators; Permissions.  Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to invite Authorized Users to access and use the Meltano Cloud Service on behalf of Customer and to assign certain permissions and access rights to each Authorized User (“Permissions”).  Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the Meltano Cloud Service.  Customer acknowledges and agrees that Customer is solely responsible and liable for its Administrator(s) administration and management of the Account, including, but not limited to, the inviting and granting of access to the Account and Meltano Cloud Service to Authorized Users and the assignment of Permissions to Authorized Users.  For the avoidance of doubt, the term “Authorized Users” as used in this Agreement, includes Administrators.  Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Customer.  
    4. Consent to Electronic Notices.  Customer consents to receiving electronic communications from Meltano via email, through the user-interface of the Meltano Cloud Service or through Meltano’s authorized support communication channels, which may include notices about applicable fees and charges, transactional information and other information concerning or related to Customer’s use of the Meltano Cloud Service.  These electronic communications are part of Customer’s relationship with Meltano and Customer receives them as part of Customer’s access and use of the Meltano Cloud Service. Customer agrees that any notices, agreements, disclosures or other communications that Meltano sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.
  3. CUSTOMER DATA
    1. Customer Data.  As between the parties, excluding Account Data and Usage Data, Customer shall retain all right, title and interest in and to the information and data (including, Personal Data) transmitted, processed, and/or otherwise provided by or on behalf of Customer and/or any Authorized User through, or in connection with the use of, the Meltano Cloud Service (“Customer Data”).  Customer hereby grants to Meltano a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Customer Data solely to the extent necessary to provide Customer the Meltano Cloud Service and other services provided by Meltano to Customer hereunder.  Customer acknowledges and agrees that Customer, not Meltano, is solely responsible for any and all Customer Data submitted, transmitted, contributed, provided, generated, and/or created by Customer and/or its Authorized Users in connection with the use of the Meltano Cloud Service, including its legality, reliability, security, accuracy, and appropriateness.  Customer represents and warrants that Customer has all necessary ownership, rights and/or authorizations to grant the licenses hereunder in and to the Customer Data.
    2. Personal Data.  To the extent any Customer Data includes, or Customer or any Authorized Users otherwise transmits, processes, and/or provides, any personally identifiable information through or in connection with the use of the Meltano Cloud Service (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), Customer represents and warrants that: (a) Customer is in compliance with all Applicable Data Laws, and (b) Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the Meltano Cloud Service and/or provide or make available such data to Meltano hereunder.  Personal Data shall only be used in accordance with this Agreement and Meltano’s Privacy Notice available at https://meltano.com/privacy-policy/.  In addition, each party shall comply with, and agrees to incorporate herein, Meltano’s Data Protection Addendum available at https://meltano.com/data-processing-addendum/ (the “Meltano DPA”) to the extent applicable to the parties processing of Personal Data in connection with the use or performance of the Meltano Cloud Service hereunder.
    3. Sensitive Data.  If Customer transmits, or intends to use the Meltano Cloud Service in connection with, any Customer Data that is or contains information that is considered or defined to be “sensitive,” “special,” or otherwise subject to specific protections or security standards under Applicable Data Laws exceeding any requirements that apply to Personal Data generally (collectively, “Sensitive Data”), Customer acknowledges and agrees that it is responsible for evaluating, and shall evaluate, prior to transmitting any Sensitive Data, whether the technical and organizational measures described in the Documentation and Meltano DPA are sufficient to protect Sensitive Data.  Customer represents and warrants that it shall not transmit any Sensitive Data through the Meltano Cloud Service if Customer determines that such technical and organizational measures are insufficient to protect Sensitive Data in accordance with Applicable Data Laws.
    4. Usage Data.  Customer acknowledges and agree that Meltano has the right to (a) aggregate, collect, and analyze information, metrics, analytics, and data relating to the use of the Meltano Cloud Service (collectively, “Usage Data”), (b) use such Usage Data for its internal business purposes, including, but not limited to, improve, test, and maintain the Meltano Cloud Service and to develop additional products and services, and (c) disclose or publish Usage Data solely in an aggregated and de-identified format that does not identify Customer or any individual.  Subject to Customer’s rights in and to Customer Data, Meltano shall retain all right, title, and interest in and to Usage Data.
    5. Security.  Meltano shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of unencrypted Customer Data.  Without prejudice to Meltano’s foregoing obligations or under the Meltano DPA, Customer is responsible for its secure use of the Meltano Cloud Service, including, without limitation: (a) protecting account authentication credentials; (b) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (c) taking any appropriate steps to securely encrypt or pseudonymize any Customer Data.
  4. RIGHTS AND CONDITIONS TO USE MELTANO CLOUD SERVICE
    1. Access to the Meltano Cloud Service.  Subject to the terms and conditions of this Agreement (including payment of applicable fees), Meltano grants to Customer a personal, non-exclusive, non-sublicensable, non-transferable limited right to access and use, and permit its Authorized Users to access and use, the Meltano Cloud Service, over the internet, solely for Customer’s own business purposes, in accordance with this Agreement and the then-current technical and user documentation made available by Meltano for the Meltano Cloud Service (“Documentation”), and subject to any applicable usage parameters or restrictions specified in the Documentation or by Meltano in writing regarding the scope of use of the Meltano Cloud Service.
    2. Beta Features.  Meltano may from time-to-time, in its sole discretion, make certain beta versions, features and/or functionality of the Meltano Cloud Service (collectively, “Beta Versions”) available to Customer to evaluate and try (at Customer’s option) at no additional cost.  For the avoidance of doubt, any Beta Versions are included in the defined term “Meltano Cloud Service” as used throughout this Agreement. If Customer elects to access Beta Versions, Meltano grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Version and/or other usage parameters or restrictions specified by Meltano. In addition to the restrictions set forth in Section 4.3 below, Customer shall not access and/or use the Beta Version without the express prior written approval of Meltano if Customer is a direct competitor of Meltano. In addition, Customer acknowledges and agrees that the Beta Version and any Feedback (as defined below in Section 4.5) regarding the Beta Versions are the confidential information of Meltano and Customer shall not disclose any such Feedback or other confidential information to any third party. BETA VERSION AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY MELTANO IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSION. Meltano reserves the right to terminate Customer’s access to any Beta Versions at any time, for any reason.
    3. Prohibited Uses.  Customer acknowledges that the Meltano Cloud Service embodies, contains, and constitutes valuable trade secrets of Meltano and its licensors and suppliers.  Accordingly, Customer agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to:
      1. use or allow access to the Meltano Cloud Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable usage parameters or restrictions;
      2. license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Meltano Cloud Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement;
      3. access or use the Meltano Cloud Service (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;
      4. reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Meltano Cloud Service;
      5. use the Meltano Cloud Service (or any part thereof) in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
      6. upload, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the use of the Meltano Cloud Service (or any part thereof);
      7. remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Meltano or its licensors and/or suppliers on or within any part of the Meltano Cloud Service;
      8. interfere with or disrupt the integrity or performance of the Meltano Cloud Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Meltano Cloud Service;
      9. take any action that imposes an unreasonable or disproportionately large load on the Meltano Cloud Service (or any part or component thereof), or its underlying infrastructure and systems;
      10. attempt to gain unauthorized access to the Meltano Cloud Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by Meltano, in the Meltano Cloud Service;
      11. frame or utilize framing techniques to enclose the Meltano Cloud Service or any portion thereof;
      12. use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Meltano Cloud Service (or any part thereof), and/or the personal information of others without Meltano’s prior written permission or authorization;
      13. use the Meltano Cloud Service to store or transmit any malicious or unsolicited code or software;
      14. impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements; or
      15. use the Meltano Cloud Service (or any part thereof), or transmit Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.
    4. Support.  Meltano will use commercially reasonable efforts to provide Customer remote technical support by email and/or phone for Customer’s use of the Meltano Cloud Service during Meltano’s normal business hours (“Support”).  To submit a request for Support please contact Meltano here:  https://meltano.com/contact/.
    5. Feedback.  To the extent Customer and/or any Authorized User provides any suggestions and feedback to Meltano regarding the functioning, features, and other characteristics of any Meltano Property (or any part or component thereof) or other materials or services provided or made available by Meltano hereunder (“Feedback”), Customer hereby grants Meltano a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s and its licensors’ intellectual property rights to use and exploit such Feedback in any manner and for any purpose.
    6. Changes and Modifications.  Meltano reserves the rights to either temporarily or permanently modify, suspend or discontinue the Meltano Cloud Service (or any part thereof); provided that, if Customer has paid for access to the Meltano Cloud Service and such changes materially and adversely degrade Customer’s the use of the Meltano Cloud Service, Customer may terminate this Agreement and Meltano shall provide Customer a refund of any fees prepaid by Customer and unused for the applicable Meltano Cloud Service.  The foregoing states Customer’s sole and exclusive remedy and Meltano’s sole and exclusive obligations for any modification, suspension or discontinuation of the Meltano Cloud Service.
    7. Additional Terms.  When using particular services, features, and/or materials through or in connection with the Meltano Cloud Service, additional terms and conditions or other operating rules, policies and procedures may be applicable to, and govern, the use of such services, features, and/or materials, in addition to those in this Agreement (collectively, the “Additional Terms”).  Customer agrees to comply with all such Additional Terms applicable to its use of the Meltano Cloud Service.  All such Additional Terms are hereby incorporated into and made a part of this Agreement by reference.  In the event the provisions of any Additional Terms conflict with this Agreement, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
    8. Meltano Proprietary Rights.  Meltano or its licensors retain all right, title and interest in and to the Meltano Cloud Service, including, all materials, graphics, user and visual interfaces, images, code (including source code or object code), products, applications, and text, embodied in, or comprising the Meltano Cloud Service, as well as the design, structure, selection, coordination, expression, “look and feel” and arrangement of the Meltano Cloud Service, the Usage Data, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Meltano Cloud Service, and any and all modifications, updates, enhancements and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing (collectively, “Meltano Property”).  There are no implied rights or licenses in this Agreement and all rights and licenses not expressly granted in this Agreement are expressly reserved by Meltano.
  5. FEES & PAYMENT TERMS
    1. Fees.  Customer shall pay the applicable fees for use of the Meltano Cloud Service set forth in the applicable Service Order (the “Fees”).  Meltano reserves the right, at any time, to change, update, or modify Meltano’s pricing and/or payment terms (including, but not limited to, increasing fees).  For current pricing and additional fee terms, please see Meltano’s pricing page available at:  https://docs.meltano.com/cloud/fees.
    2. Payment Terms.  Unless otherwise expressly agreed in writing by Meltano all Fees are due and payable in advance, and will be billed to the credit card, or other payment method designated by Customer in the Service Order or otherwise specified in Customer’s Account (the “Payment Method”).  Our third-party payment services providers may charge additional fees for the use of their services to make payments hereunder, including fees in connection with cross-border monetary transactions.  Such additional fees will be subject to Customer’s review, including the time-period in which those fees will be charged, prior to order acceptance and submission.  Customer represents and warrants that it has the legal right and authority to use the Payment Method provided by Customer hereunder.  Customer hereby authorizes Meltano and its third party payment processors to bill and charge the Payment Method for the applicable fees due and payable by Customer hereunder and any applicable taxes and any other charges that Customer may incur in connection with the use of the Meltano Cloud Service, in accordance with the billing terms in effect at the time a fee or charge is due and payable.  If Customer provides a credit card as its Payment Method, Meltano may seek pre-authorization of the credit card account prior to the purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.  To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means.  If payment is not received or cannot be charged to Customer for any reason in advance, Meltano reserves the right to suspend or terminate Customer’s and its Authorized User’s access to the Meltano Cloud Service and/or terminate this Agreement.  All fees are listed and payable in United States Dollars (USD).  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL FEES ARE NON-REFUNDABLE, NON-RETURNABLE AND NON-CANCELLABLE.
    3. Taxes.  The fees are exclusive of 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 (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such Taxes (other than taxes based on Meltano’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Meltano Cloud Service (or any part thereof), or performance of any services by Meltano hereunder.  If Meltano is legally obligated or required to pay or collect Taxes for which Customer is responsible under this Section, Meltano will invoice Customer for, and Customer will pay, the amount of such Taxes, unless Customer provides Meltano with a valid tax exemption certificate authorized by the appropriate taxing authority.  Customer will also pay any additional Taxes as are necessary to ensure that the net amounts received by Meltano after all such Taxes are paid are equal to the amounts that Meltano would have been entitled to in accordance with this Agreement as if the Taxes did not exist.  Customer will provide, at Meltano’s request, proof of withholding tax remittance to the respective tax authority.
    4. Trial and Promotional Offers.  Meltano may make the Meltano Cloud Service available on a free trial basis or offer promotions (e.g., discounts, fee credits, etc.) for the Meltano Cloud Service.  If Customer obtains trial access or accepts any promotion offers for the Meltano Cloud Service, Customer acknowledges and agree that upon expiration of the trial and/or Customer’s use of the promotion, continued use of the Meltano Cloud Service shall be subject to Customer’s payment of the then-current Fees.  For the avoidance of doubt, and unless otherwise expressly authorized by Meltano in writing, if Customer terminates its Account prior to the end of a promotion period, or before using the entirety of the promotion, any unused promotions shall expire upon termination.
  6. TERMINATION
    1. Termination
      1. Either party may terminate this Agreement immediately upon written notice to the other party if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
      2. Notwithstanding the foregoing, if Meltano, in good faith, believes that Customer and/or any Authorized User has used the Meltano Cloud Service (or any part thereof) in violation of Section 4.3 of this Agreement, Meltano may, in its discretion, (a) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the Meltano Cloud Service (or any part thereof), with or without notice, and/or (b) terminate this Agreement with respect to Customer immediately upon written notice.
      3. In addition, Customer may terminate this Agreement and its Account, at any time, by submitting its request to Meltano by contacting us at: https://meltano.com/contact/.
    2. Effect of Termination.  Upon termination of this Agreement for any reason Customer’s and its Authorized Users’ right to access and use the Meltano Cloud Service will automatically terminate, and Customer will cease and ensure all Authorized Users cease all access and use of the Meltano Cloud Service.  If Customer terminates this Agreement pursuant to Section 6.1(a) above, Meltano shall provide Customer a refund of any Fees prepaid by Customer and unused for the applicable Meltano Cloud Service as of the effective date of termination.   In all other cases, except as otherwise expressly stated in this Agreement, any prepaid and unused Fees by Customer shall be wholly non-refundable upon termination.  Any provision that by its nature or express terms should survive will survive the termination or expiration of this Agreement.
  7. INDEMNIFICATION
    1. Indemnification by Meltano.  Meltano shall defend and/or settle any third party claim, action or suit brought against Customer alleging that Customer’s use of the Meltano Cloud Service as authorized herein infringes or misappropriates the intellectual property rights of any third party, and hold Customer harmless from any amounts finally awarded by or agreed to (and reasonably approved by Meltano) in settlement of such claim.  If Customer’s use, or Meltano reasonably believes Customer’s use, of the Meltano Cloud Service (or any part thereof) is or may be enjoined, or if otherwise required by settlement or injunction, Meltano may elect at its option to: (a) obtain a license for the affected portion of the Meltano Cloud Service; (b) modify or replace the affected portion of the Meltano Cloud Service, so as to avoid infringement, without materially degrading the functionality of the Meltano Cloud Service; or (c) terminate or discontinue the Meltano Cloud Service (or affected portion thereof) and provide Customer a refund of any fees prepaid by Customer and unused applicable to the terminated or discontinued Meltano Cloud Service.  Notwithstanding the foregoing, Meltano will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim: (i) based upon any modification of the Meltano Cloud Service (or any part thereof) by any person other than Meltano or its authorized representatives, (ii) based upon the use, operation, or combination of the Meltano Cloud Service (or any part thereof) with software programs, data, equipment, materials or business processes not provided by Meltano (including, but not limited to, Third Party Products and Services), if claim would not have arisen but for such use, operation or combination, and/or (c) any Beta Version, or any free, trial or promotional use of the Meltano Cloud Service.  THIS SECTION 7.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MELTANO’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.
    2. Indemnification by Customer.  Customer shall indemnify, defend, and hold Meltano and its parent, affiliates, and subsidiaries, and its and their respective, officers, directors, employees, contractors, representatives, licensors, and agents harmless from and against any and all liability, losses, claims, actions, suits, damages, demands, and expenses (including reasonable attorneys’ fees) of any kind, arising out of or related to Customer’s or its Authorized Users’: (a) breach of this Agreement or any representation, warranty, or agreements referenced herein; (b) violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (c) breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any Third Party Products and Services; or (d) violation of any applicable law, rule or regulation (including, any Applicable Data Laws).
    3. Procedure.  The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party, (b) give the indemnifying party sole control of the defense thereof, and, (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense.  Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent.  The indemnified party may participate and retain its own counsel at its own expense.
  8. DISCLAIMERS.  THE MELTANO CLOUD SERVICE, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY MELTANO HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND.  MELTANO EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.  MELTANO DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE MELTANO CLOUD SERVICE (OR ANY PART THEREOF), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY MELTANO: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY PRODUCTS AND SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.
  9. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MELTANO BE LIABLE OR OBLIGATED, WITH RESPECT TO THIS AGREEMENT, THE MELTANO CLOUD SERVICE (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS AND/OR SERVICES PROVIDED MADE AVAILABLE BY MELTANO, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF MELTANO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS GREATER THAN THE FEES PAID OR PAYABLE BY CUSTOMER TO MELTANO UNDER THE APPLICABLE SERVICE ORDER FOR THE MELTANO CLOUD SERVICE GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR, WITH RESPECT TO ANY TRIAL, PROMOTIONAL, OR BETA VERSION, $100.00; (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (C) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.  THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT MELTANO WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.  THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  MELTANO DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO MELTANO’S LICENSORS AND SUPPLIERS.  THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF MELTANO’S SUPPLIERS.
  10. JURISDICTIONAL ISSUES.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES WITH RESPECT TO CONSUMERS (I.E., A PERSON ACQUIRING GOODS OTHER THAN IN THE COURSE OF A BUSINESS, IN SUCH STATES OR JURISDICTIONS, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTIONS 8 AND 9 SHALL APPLY TO A CONSUMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE SUCH CONSUMER IS LOCATED. 
  11. THIRD PARTY PRODUCT AND SERVICES. The Meltano Cloud Service may contain links to, or otherwise allow Customer to connect to and/or use certain third party products, data, services, websites, applications, software, scripts and/or APIs, including, but not limited to, Third Party Connectors (all of the foregoing, collectively “Third Party Products and Services“). Third Party Products and Services are not owned, controlled, or operated by Meltano and are subject to separate terms and conditions of the applicable third party provider. If Customer decides to access and use any Third Party Product and Services, such use is and shall be governed solely by the terms and conditions for such Third Party Products and Services.  Meltano does not endorse, is not responsible for, and makes no representations as to such Third Party Product and Services, their content or the manner in which they handle, secure, protect or use Customer’s data. Meltano is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s access or use of any such Third Party Products and Services, or Customer’s reliance on the privacy practices or other policies of such Third Party Products and Services.  MELTANO DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS AND SERVICES, AND MELTANO WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS AND SERVICES.
  12. AVAILABILITY OF THE SERVICE.  Information describing the Meltano Cloud Service is accessible worldwide but this does not mean is, or certain portions thereof, and/or Meltano Property, are or will be available in Customer’s country. Meltano may restrict access to the Meltano Cloud Service, or portions thereof, and/or any Meltano Property, in certain countries in its sole discretion. It is Customer’s responsibility to make sure the use of the Meltano Cloud Service is legal in Customer’s country of residence.
  13. GOVERNMENT RIGHTS.  The Meltano Cloud Service is provided under this Agreement is a commercial computer software program developed solely at private expense.  As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), any software underlying the Meltano Cloud Service is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.”  Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.
  14. MODIFICATIONS TO THIS AGREEMENT.  Meltano reserves the right to update or modify this Agreement at any time.  The revised Agreement will be posted at https://meltano.com/terms-of-service/.  Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above.  If Meltano makes any material changes to this Agreement, Meltano will provide reasonable prior notice to Customer of these changes by sending a notification to the email address Meltano has on file for Customer, or, if Meltano does not have an email address on file, by posting a prominent notice on Meltano’s website and/or through the user interface of the Meltano Cloud Service.  Material changes to this Agreement will become effective on the date set forth in the notice.  It is Customer’s responsibility to regularly visit and review this Agreement for updates, changes and modification.  If Customer does not agree to any updates or modifications to this Agreement, Customer must terminate its Account as set forth in Section 6.1(c) above and cease all use and access of the Meltano Cloud Service.  Customer’s and/or any of its Authorized Users’ continued access or use of the Meltano Cloud Service (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer’s acceptance of the revised Agreement.
  15. GOVERNING LAW & DISPUTE RESOLUTION
    1. Governing Law.  This Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of Texas, without reference to its choice of law rules to the contrary; provided that, the Agreement to Arbitrate and related arbitration provisions set forth in this Section 15, shall be governed by the Federal Arbitration Act.  This Agreement (including without limitation, the Meltano Cloud Service and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
    2. Disputes.  Any dispute, controversy, or claim between the parties arising out of or relating to this Agreement, the Meltano Cloud Service (or any part thereof) or the breach, termination, or invalidity of this Agreement (a “Dispute”) shall be resolved by the parties in accordance with this Section 15.  A party who intends to seek arbitration or bring other action permitted under this Section 15 with respect to any Dispute, must first send a written notice of the Dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Dispute Notice”). Meltano’s address for Dispute Notices is: Meltano, Inc., Attention: Notice of Dispute, Meltano, Inc., 2028 E. Ben White Blvd #240-3303 Austin, TX 78741.  The Dispute Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought.
    3. Agreement to Arbitrate.  Except as described in Section 15.5, the parties agree that any and all Disputes shall be resolved by final, binding and confidential arbitration, settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its applicable Arbitration Rules in effect at time the claim is submitted (the “Rules”) as modified by this Section 15.  The arbitration will be heard and determined by a single, neutral arbitrator mutually agreed upon by the parties.  If the parties cannot agree on an arbitrator, the arbitrator shall be selected in accordance with the Rules.  The location of arbitration shall be Austin, Texas, unless otherwise mutually agreed upon by the parties in writing.  Notwithstanding the foregoing, to the extent feasible, the parties agree the arbitration may be conducted by video conference, telephone, or other telecommunication means.  To the extent there is any conflict between the provisions set forth in this Section 15 and the Rules or any procedural or other rules issued by the arbitrator, this Section 15 will control.  The arbitral proceedings, and all pleadings and written evidence will be in the English language.  Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof.  The English language version will control. The arbitrator shall apply the laws of the State of Texas, without reference to its choice of law rules to the contrary.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based.  The arbitration award shall be final and binding upon the parties without appeal or review, and the award may be entered by any court of competent jurisdiction, and each of the parties irrevocably submits to the jurisdiction of such court for confirmation or recognition or enforcement of any award rendered by the arbitral tribunal in accordance with, inter alia, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  The parties agree that, except as otherwise stated in this Agreement, neither party shall have any right to commence or maintain any suit or legal proceedings (other than for interim or conservatory measures, or as otherwise stated herein) until the dispute has been determined in accordance with the arbitration procedure provided in this Section and then only for enforcement of the award rendered in the arbitration.
    4. Enforceability; Venue.  If the Agreement to Arbitrate is found not to apply to any claim brought by Customer and/or Meltano, Customer and Meltano agree that any judicial proceeding will be brought in the federal or state courts located in Travis County, Texas, United States of America, and the parties hereby consent to the personal jurisdiction and exclusive venue in such courts.
    5. Exceptions.  Notwithstanding anything in this Agreement to the contrary, in the event of any actual or alleged violation of Meltano’s intellectual property or confidentiality rights, Meltano may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country, including in the State of Texas, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Customer hereby consents to the personal jurisdiction and exclusive venue in such courts.  In addition, despite the Agreement to Arbitrate, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.
    6. Prevailing Party. Subject to Section 9, in the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to this Agreement and/or the Meltano Cloud Service (or any part thereof), the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
    7. No Class Actions.  CUSTOMER MAY ONLY RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN’T ALLOWED UNDER THIS AGREEMENT.
  16. GENERAL
    1. Severability; Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.  
    2. Notices.  All notices permitted or required to be sent to Meltano under this Agreement shall be in writing and sent by personal delivery, email (where permitted), or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email.  Notices shall be sent to Meltano in writing to: Meltano, Inc., Meltano, Inc., 2028 E. Ben White Blvd #240-3303 Austin, TX 78741.  Except as otherwise set forth herein, all notices to Customer hereunder shall be sent via email to Customer’s email address specified in the Account.
    3. Assignment.  Customer may not assign its rights or obligations under this Agreement without Meltano’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void.  Meltano may freely assign or transfer this Agreement (including, but any of its rights or obligations under this Agreement) and may delegate the performance of any services hereunder to its affiliates, employees, contractors, and subcontractors, without Customer’s consent.  This Agreement shall be binding on the parties and their respective successors and permitted assigns.
    4. Third Party Rights.  This Agreement is not intended to grant rights to anyone except Customer and Meltano, and in no event shall this Agreement create any third party beneficiary rights, nor be interpreted or construed to confer any rights or remedies on or to any third parties.
    5. Entire Agreement; Construction.  This Agreement, together with any and all Service Orders entered into hereunder, the Meltano DPA, Additional Terms, and any other policies or terms and condition referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof.  Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement.  When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.

QUESTIONS.  Please feel free to contact Meltano at https://meltano.com/contact/ if you have any questions about this Agreement.