These Subscription Terms and Conditions (“Terms”), and any Order incorporated herein (collectively, the “Agreement”) are entered into between Sanity US Inc. (“Sanity”) and the Subscriber identified in the applicable Order (each a “Party” and collectively, the “Parties”). These Terms are effective as of the Order Effective Date.
For our Artificial Intelligence Terms and Conditions, please refer to http://sanity.io/legal/tos-ai.
For our Terms and Conditions on the Growth Subscription plan, please refer to http://sanity.io/legal/tos-growth.
1. PROVISION OF THE SERVICE
1.1. Sanity Service. Sanity provides a proprietary platform service designed to allow subscribers to deliver content to digital devices and products (the “Service”), as further described in the then-current version of any technical documentation provided to Subscriber by Sanity or available on Sanity’s website (“Documentation”). The Service is provided on a subscription basis for the Subscription Term.
1.2. Access to the Service. Subject to Subscriber’s compliance with the terms and conditions herein (including any Order), Sanity hereby grants to Subscriber a limited, revocable, non-exclusive, non-transferable right for Permitted Users (as defined below) to access and use the Service solely for Subscriber’s internal business purposes, during the Subscription Term (defined in Section 4.1). A “Permitted User” shall mean (a) an employee or independent contractor of Subscriber or (b) a subscriber affiliate, provided that, Subscriber will be jointly and severally liable with such subscriber affiliate for all acts and omissions of each subscriber affiliate while using the Service. No subscriber affiliate shall have the right to take any legal action against Sanity under these Terms or any Order who has not entered into a direct Order with Sanity.
1.3. Permitted Users. Subscriber shall ensure that each Permitted User agrees to abide by the terms and conditions herein. Subscriber is responsible for all Permitted Users' access to and use of the Service, and all use of Subscriber’s account or log-in credentials. Subscriber is responsible for maintaining the confidentiality of all usernames, passwords, and other log-in credentials used to access or use the Service. Subscriber will promptly notify Sanity of any misuse or unauthorized use of log-in credentials or other unauthorized access to or use of the Service of which Subscriber suspects or becomes aware. Permitted Users cannot be direct competitors of, or employed by competitors of, Sanity.
1.4. Separate Affiliate Ordering. Subject to the Parties executing a mutually agreed upon Order, subscriber affiliates may purchase access to the Service, hosted on a separate instance, by signing an Order that references these Terms directly with Sanity (or a Sanity affiliate as applicable to subscriber affiliate’s location), which will establish a new and separate agreement between the subscriber affiliate and the Sanity entity signing such Order. If such subscriber affiliate resides in a different country than Subscriber, such subscriber affiliate’s Order may include modifications particular to international transactions (e.g., tax rates and governing law).
1.5. Restrictions. Subscriber shall not (and shall not allow any Permitted User to): (a) use the Service in a manner that violates any applicable laws; (b) grant third parties permission to use the Service (except Subscriber Affiliates in accordance with Section 1.3 above) or resell, transfer, pledge, lease, rent, or share Subscriber`s rights under these Terms; (c) modify, remove or amend Sanity’s trademarks, name or logo; (d) update, reproduce, duplicate, copy all or any part of the Service; (e) use the Software for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Software, or for any other purpose not expressly permitted herein; (f) access or attempt to access any of Sanity’s systems, programs or data that are not made available for public use, or attempt to bypass any of the Service’s security and traffic management devices; (g) use the Service for benchmarking or to developing a product which is competitive with any Sanity products or services; or (h) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Service or any software, documentation or data related to the Service by any means whatsoever.
2. OWNERSHIP
2.1. Subscriber Data. "Subscriber Data" means electronic data and information submitted by or on behalf of Subscriber to the Service or collected and processed by or on behalf of Subscriber using the Service. As between the Parties, except for the limited rights provided herein, Subscriber retains all right, title, and interest (including any and all intellectual property rights) in and to the Subscriber Data as provided to Sanity. Subscriber hereby grants to Sanity a non-exclusive, worldwide, royalty-free right to use, copy, process store, transmit, distribute, perform and display, modify and create derivative works of the Subscriber Data to the extent necessary to provide the Service and to comply with applicable laws. Subscriber shall be solely responsible for ensuring that all Subscriber Data complies with applicable laws. Sanity may analyze Subscriber Data, with data and other content or information of other customers, to create aggregated or anonymized statistics or data that does not identify Subscriber or any individual for Sanity’s business purposes. Sanity may also process data about how Subscriber and its Permitted Users use and interact with the Sanity Service and its features (“Service Usage Data”) for Sanity's legitimate business purposes, including for testing, development, controls, security, troubleshooting, and operation of the Service. Sanity may use, share, and retain such Service Usage Data for any business purpose at Sanity's discretion and in compliance with applicable laws. Subscriber represents and warrants that it will obtain any necessary consents from its end users regarding the collection of Service Usage Data as required by applicable data protection law and will hold Sanity harmless in the event Subscriber fails to do so.
2.2. Sanity Technology. Subscriber acknowledges that it is obtaining only a limited right to use the Service on a hosted basis. As between Subscriber and Sanity, Sanity and its suppliers or licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in and to the Service, including any and all related and underlying software (including mobile applications, extensions and interfaces), databases, technology, and all copies, modifications and derivative works thereof, the documentation, and all system performance data and machine learning, including machine learning algorithms, data used for optimization and services improvement, and the results and output of such machine learning (collectively, “Sanity Technology”). Sanity Technology is protected by copyright, trade secret, patent, and other intellectual property laws, and all rights in the Sanity Technology not expressly granted to Subscriber in this Terms are reserved.
2.3. Feedback. Subscriber, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the Service to Sanity (“Feedback”). Subscriber agrees that Sanity may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided Subscriber shall not be identified in connection with any such Feedback without Subscriber’s written consent in its sole discretion.
3. FEES AND PAYMENT
3.1. Fees. All fees are as set forth in the Order. Except as otherwise agreed in an Order, fees and expenses shall be due and payable upon the Order Effective Date. Sanity may reasonably increase the fees each year after the Initial Term, by providing Subscriber notice thereof at least thirty (30) days before the start of such Renewal Term, unless otherwise provided in the Order. Any late payments shall be subject to an interest rate equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. All pricing terms in an Order are confidential, and Subscriber agrees not to disclose them to any third party. Without limiting any of its other rights in law or equity, subject to Section 4.3 herein, in the event any fees are past due, Sanity may suspend its obligations under this Terms and Subscriber’s access to the Service.
3.2. Taxes. All amounts due under any Order are non-cancellable, non-refundable, and exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind. Unless Subscriber timely provides Sanity with a valid certificate of exemption, Subscriber shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Sanity’s U.S. income), which may be invoiced by Sanity from time-to-time. Subscriber will indemnify, defend, and hold Sanity harmless from any such taxes, fines, or interest owed by Subscriber under this Terms, any Order, or applicable law.
3.3. Payment Method. Subscriber shall make all payments hereunder using the payment method set forth in the Order, without set off, withholding, or deduction of any kind. Subscriber agrees to gross-up payments due to Sanity for any tax related withholding or deduction required by applicable laws, such that Sanity is paid the net amount contemplated under the applicable Order.
4. TERM; TERMINATION
4.1. Subscription Term; Renewals. The term of the Agreement shall commence on the Order Effective Date and, unless earlier terminated as set forth herein, shall continue for the period of one year (or as otherwise set forth in an applicable Order) (the “Initial Term”). Thereafter, the Initial Term will automatically be renewed for successive one (1) year periods (each a “Renewal Term”), unless either Party provides the other Party advance written notice of its desire to not renew no later than sixty (60) days prior to the end of the then-current term. For clarity, these Terms shall continue to apply so long as one Order remains in effect. The Initial Term and any Renewal Term are collectively referred to as the “Subscription Term.”
4.2. Termination for breach. Either Party may terminate the Agreement if the other Party materially breaches its obligation hereunder and fails to cure such breach within thirty (30) days after receipt of written notice from the non-defaulting Party.
4.3. Other Terminations. Sanity may terminate the Agreement (and any or all applicable Order), or suspend or terminate Subscriber’s access to the Services immediately if (a) Subscriber becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing, (b) Subscriber is past due on any owed fees and fails to cure within twenty-one (21) days’ notice, (c) it is necessary to prevent violation of the Agreement or misuse of the Service, or (d) it is necessary to comply with applicable laws.
4.4. Effect of Termination. On termination or expiration of the Agreement and subject to payment of all amounts then due and owing, upon Subscriber’s written request, (a) Sanity will provide a copy of Subscriber Data in Sanity’s possession to Subscriber in Sanity’s standard database export format within thirty (30) days following termination or expiration. Sanity is not obligated to maintain Subscriber Data for more than thirty (30) days following termination or expiration of the Subscription Term; and (b) Subscriber will (i) discontinue all access and use of the Service and all related rights granted to Subscriber herein will terminate immediately, automatically, and without notice and (ii) Subscriber will remain liable for all payments due to Sanity with respect to the period ending on the date of termination (including any fees and expenses that had not been invoiced prior to termination). Sections 2, 3, 4.4, 5, 6.3, 7.2, 8, 10.1, 10.3, and 10.8 will survive any termination or expiration of this Terms.
5. CONFIDENTIAL INFORMATION
5.1. Confidentiality. Each Party (as “Receiving Party”) hereto acknowledges that the Confidential Information of the disclosing party (“Disclosing Party”) constitutes valuable confidential and proprietary information. Each Party will (i) hold the Confidential Information of the other Party in confidence, (ii) not disclose to any other person or use such Confidential Information or any part thereof, except in connection with the limited purpose of performing its obligations pursuant to the terms and conditions herein and except if compelled to do so under applicable law and has delivered a written notice to that effect to the Disclosing Party and taken all reasonable steps to avoid the disclosure of such Confidential Information, and (iii) use at least the same degree of care with respect to the other Party’s Confidential Information as it uses to avoid the unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. Each Party will disclose the other Party’s Confidential Information, to the extent such disclosure is permitted under the terms and conditions herein, to its employees and agents on a “need to know” basis; provided in each case that such employees and agents are bound by confidentiality obligations similar to those herein.
5.2. “Confidential Information” means any proprietary information, trade secret and other information, which is disclosed by a Party to the other Party, whether tangible or intangible, including, but not limited to, the terms and conditions herein and information relating to the Service, technical and financial information and any improvements, enhancements, product specifications and plans, technical data, know-how, show-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, drawings, flow charts, samples, inventions (whether reduced to practice or not), discoveries, concepts, ideas, past, current and planned research, development or experimental work, hardware, software (object code and source code), databases, systems, structures, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Sanity’s Confidential Information includes but is not limited to, the features, functionality and content of the Service and any planned modifications or updates thereto, fees and pricing information. Confidential Information does not include information which (a) is or becomes publicly known through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.
6. WARRANTIES AND DISCLAIMER
6.1. Mutual. Each Party represents and warrants that: (a) it has the requisite power and authority to enter into and carry out the terms and conditions herein without the consent of any third party; (b) its performance under the Agreement will not conflict with any other obligation it may have to any third party; and (c) as of the Order Effective Date, there are no proceedings pending or, to the knowledge of a Party, threatened or reasonably anticipated that challenges or may have a material adverse effect on the Agreement.
6.2. Limited Warranty. Sanity warrants that: (a) it will provide the Service in a professional and workmanlike manner; (b) the Service, if used in accordance with the terms and conditions herein, will substantially conform to the Documentation; and (c) as of the date of Subscriber’s initial use of the Service, the Service shall be free of any viruses, bugs, Trojan horses, or similar malicious components that could damage, destroy, or disrupt Subscriber’s network. Subscriber’s sole remedy for Sanity’s breach of the warranty in this Section 6.2 shall be that Sanity will remedy the applicable error, or if Sanity determines such remedy to be impracticable, Subscriber shall have the right to terminate the Agreement (and the applicable Order) as provided in Section 4.2 herein.
6.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.2, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE, SANITY TECHNOLOGY, AND DOCUMENTATION IS PROVIDED “AS IS”. NEITHER SANITY NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LOSS OF DATA, TITLE OR NON-INFRINGEMENT. SANITY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SANITY. SANITY DOES NOT WARRANT THAT THE SERVICE WILL BE FREE FROM VIRUSES OR OPERATE ERROR FREE OR UNINTERRUPTED.
7. INDEMNIFICATION
7.1. Sanity Indemnification. Subject to the terms and conditions herein, Sanity shall defend, indemnify, and hold harmless Subscriber and its shareholders, partners, members, directors, officers, employees, lenders, successors and assigns from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and costs)(collectively, “Claim(s)”) alleging that the Service, when used as authorized under these Terms, directly infringes a third party’s intellectual property. If Subscriber’s use of the Service is, or in Sanity’s opinion is likely to be, enjoined due to the type of infringement specified above, Sanity may, in its sole discretion: (a) substitute or modify the Service so that it becomes non-infringing without compromising its material functionally; (b) procure for Subscriber the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement (and applicable Order) and refund to Subscriber any pre-paid fees for the Service associated with the then-remaining Subscription Term. The foregoing indemnification obligation of Sanity shall not apply: (i) if the Service is modified without Sanity’s prior written approval; (ii) the Service is combined with services or processes not authorized by Sanity in writing; (iii) related to misuse of the Service; (iv) to any third-party components or Subscriber Data; or (v) if the infringement relates to Sanity’s compliance with specifications or other requirements of Subscriber. THIS SECTION 7.1 SETS FORTH SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
7.2. Subscriber Indemnification. Subscriber shall defend, indemnify, and hold harmless Sanity and its shareholders, partners, members, directors, officers, employees, lenders, successors and assigns, from and against any and all Claims arising out of or relating to (a) Subscriber’s or any Permitted User’s use of the Service in violation of the terms and conditions herein or applicable law or (b) Subscriber’s service offerings or Subscriber Data.
7.3. Procedures. The obligations of each indemnifying party are conditioned upon receiving from the Party seeking indemnification: (a) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of the indemnified party, at indemnifying party’s expense.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. Disclaimer of Indirect Damages. EXCEPT AS SET FORTH IN SECTION 8.3, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS OR DATA) ARISING IN CONNECTION WITH THE AGREEMENT OR THE USE OF THE SERVICE OR SANITY TECHNOLOGY BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Damages Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO SECTION 8.3, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER TO SANITY FOR THE SERVICE UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGE.
8.3. Exceptions to Limitations. NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) UNAUTHORIZED USE OR MISUSE OF THE SANITY TECHNOLOGY; OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 8 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. GENERAL
9.1. Assignment. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign the Agreement except upon the advance written consent of the other Party, except that either Party may assign the Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such Party’s assets or voting securities without the other Party’s consent.
9.2. Severability. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that these Terms shall otherwise remain in effect.
9.3. Governing Law; Jurisdiction and Venue. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. Excluding conflict of laws rules, the Agreement shall be governed by and construed under the laws of State of California. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the competent state courts in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to the Agreement.
9.4. Use of Names. Subscriber may not use Sanity’s names, trademarks, trade names, service marks, insignia, or logos ("Marks") without Sanity’s prior written consent. Notwithstanding the foregoing, Sanity may disclose Subscriber as a customer of Sanity and use Subscriber’s Marks on Sanity’s website and in Sanity’s promotional materials.
9.5. Notice. Sanity may give notice by electronic mail to Subscriber’s e-mail address on record in Subscriber’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in Subscriber’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Subscriber may give notice to Sanity (such notice shall be deemed given when received by Sanity) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Sanity at 351 California St, Suite 650, San Francisco, CA 94104, United States, addressed to the attention of: Legal, or by email to sales@sanity.io.
9.6. Amendments; Waivers. No supplement, modification, or amendment of these Terms shall be binding, unless executed in writing by a duly authorized representative of each Party to these Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. No provision of any purchase order or other business form employed by Subscriber, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions herein, and any such document relating to these Terms shall be for administrative purposes only and shall have no legal effect.
9.7. Entire Terms. These Terms and all applicable Orders (including mutually agreed exhibits or attachments) make up the complete and exclusive understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these Terms.
9.8. Force Majeure. Except for Subscriber’s payment obligations hereunder, neither party is, and may not be construed to be, in breach of the Agreement for any failure or delay in fulfilling or performing the Service, when and to the extent such failure or delay is caused by or results from acts beyond a Party’s reasonable control, including: strikes, lock-outs, or other labor disputes; shortages of or inability to obtain labor, energy, or supplies, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Sanity’s local network; any pandemic; any natural disaster, including earthquake, extraordinary storm or weather conditions; nuclear, chemical or biological contamination; and any explosion, fire and flooding; or other acts of God (each a “Force Majeure Event”). The Parties will use reasonable efforts to mitigate the effects of such Force Majeure Event.
9.9. Subcontractors. Sanity may use the services of subcontractors for performance of services under these Terms, provided that Sanity remains responsible for (a) compliance of any such subcontractor with the terms and conditions herein, all applicable laws as well as Subscriber’s reasonable safety standards and protocols as provided to Sanity in writing, and (b) the overall performance of the Service as required under these Terms. Sanity shall not enter into any contract, oral or written, with any person, firm or corporation relating to the performance of the professional services or the supplying of materials or equipment to the Subscriber’s premises without the prior written consent of Subscriber, which shall not be unreasonably withheld.
9.10. Third Party Beneficiaries. No third party is intended to be a beneficiary of the Agreement.
9.11. Independent Contractors. The Parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.