Only applicable to paid subscription plans
Updated Effective Date: February 22, 2023
This NETDATA TERMS OF SERVICE (“Agreement”) is made and entered into as of the date of last signature set forth in the Service Order (“Effective Date”) by and between Netdata, Inc., a Delaware corporation on behalf of itself and its Affiliates (“Netdata”), with its principal place of business at 548 Market St #31942, San Francisco, CA 94104-5401, U.S.A, and the company and legal entity specified in the executed Service Order (“Customer”).
Netdata and Customer may be referred to collectively as “Parties” or individually as a “Party”.
1. Definitions. Applicable terms not otherwise defined below in this Section 1 shall have the meaning defined hereunder in this Agreement, or in a Service Order.
1.1. “Acceptable Use Policy” means those Netdata Services obligations described in the attached Schedule 1 which also includes Netdata’s Code of Conduct located here: https://learn.netdata.cloud/docs/nightly/miscellaneous/netdata-community-code-of-conduct.
1.2. “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Client Software” means software licensed by Netdata to Customer that is typically deployed on Customer’s machines to enable access to and use of the Netdata Services. Client Software is also known as the “Netdata Agent”. Client Software may include or be provided with code licensed under third-party agreements, including Open Source Software. Client Software may also include “Netdata Integrations".
1.4. “Customer Data” means all data, information or other material that Customer loads, or grants Netdata the right to process, on or through the Netdata Services including User names, passwords, IP addresses and other User identifiers. Customer Data also includes any data generated and displayed in a Netdata dashboard resulting from a Customer’s use of the Netdata Services (including Output) or loaded by Users, and any integrations with the Netdata Services created by Customer using the Netdata software developer’s kit or “SDK”.
1.5. “Documentation” means the online product documentation, user instructions and any files made available to Customer by Netdata as part of the Netdata Services located here: https://learn.netdata.cloud/docs, as may be updated from time to time by Netdata.
1.6. “Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.
1.7. “Client Portal” means the Netdata web application offered as part of the Netdata Services that contains both proprietary or open source HTML, applications, messages, text, files, images, photos, video, sounds, profiles, works of authorship and other content (collectively, “Netdata Content”) for use by Customer during the Subscription Term.
1.8. “Netdata Integrations” means pre-developed applications licensed by Netdata to Customer that connect the Netdata Services to Netdata Supported Hardware Systems are further specified here: https://www.netdata.cloud/integrations/.
1.10. “Netdata Service(s)” means Netdata’s proprietary, cloud-based infrastructure monitoring and troubleshooting service and related technologies and capabilities such as Netdata Agent, Netdata Cloud, Netdata Registry, Netdata Managed Data Centralization Points and the Netdata Client Portal, and shall include without limitation all software, sample code, object code, features, platform and portal access rights, and elements of same, as well as all Documentation provided in connection with the Netdata Services.
1.11. “Netdata Supported Systems” means any hardware, virtual or physical server, container, system (including operating system), application, collector, notification platform and monitoring/observability toolchain that can be monitored by Netdata Services by way of Netdata Integrations.
1.12. “Node” means a “monitored entity” that appears as a separate entry in a Netdata Cloud “Nodes” list as part of the Netdata Services, that includes network devices, applications and other hardware and software used or operated by the Customer on which Customer Data is also being processed or accessed. A Node typically involves a Netdata Agent connected to the Netdata Cloud, gathering metrics and data from potentially multiple, monitored systems or services. Users may configure Netdata Agents to create additional billable Node, some of which may be called “virtual Nodes”, in order to organize the monitored systems and services in different ways. Netdata monitors a Customer’s peak usage quantity of Nodes over each monthly period during a Subscription Term as displayed on the Netdata Services dashboard on a real-time basis, and Customer is billed monthly in arrears for a Customer’s Node usage of the Netdata Service.
1.13. “Output” means any alarms, alerts, reports or other information generated by Customer’s use of the Netdata Services displayed in a Netdata dashboard or delivered to Users by any means, available and accessible to Users and Administrators during the Subscription Term.
1.14. “Service Order” means the binding Customer ordering document governed by this Agreement and either signed by the parties, or agreed to and acknowledged by the Customer through the online Client Portal that describes, among other things, Customer’s use and access entitlements, the Support Services package selected by the Customer, any additional features or modules ordered by the Customer, the duration of the Subscription Term and the fees payable by the Customer in exchange for its use of the Netdata Services platform.
1.15. “Space” means a dedicated Customer environment for Node that is accessed by Users and that includes Customer Data as part of Customer’s use of the Netdata Services
1.16. “Support Services” means technical support and application management services, as fully described here: https://www.netdata.cloud/pricing/.
1.17. “Term” means the term of the Agreement, including the initial Subscription Term and any Renewal Term(s) as further described in Section 8.1.
1.18. “User” means the named person or persons authorized by Customer to use the Netdata Services as defined in a Service Order. Users may be designated in different categories in a Service Order, and Users may also invite other Users to access their Spaces on the Netdata Services. Users having a unique identifier (“UID”) and password to connect to the Netdata Services shall be identified as “Named Users”. A Named User cannot share Users IDs and passwords with other Users during the Subscription Term, and Customer usage of the Netdata Services is not intended to be for concurrent or shift-based Users. Named User access rights may be reassigned to new Named Users if the original Named User no longer uses and accesses Netdata Services because of a role change, employment termination or similar reasons. For any Service Order adopting Netdata User-based model, any exceptions to the general designation of Users as Named Users shall be set forth in applicable Service Orders.
2. Netdata Services.
2.1. Provision of Services. The Netdata Services and Support Services are provided on a subscription basis for a set term designated on the Service Order (each, a “Subscription Term”). Netdata may also offer Professional Services (as defined in Section 4.4) related to the Netdata Services. Customer shall purchase and Netdata shall provide the specific Netdata Services and related Professional Services (if any) as specified in the applicable Service Order entered into as of the Effective Date.
2.2. Access to the Netdata Services. During each Subscription Term, Netdata grants to Customer and its Users the following rights: a) the right to use and access the Netdata Services including Netdata Integrations and the Client Portal, solely for its own benefit and in accordance with the terms and conditions of this Agreement, and b) the right to use and access the Documentation; each strictly in accordance with any scope of use restrictions designated in the applicable Service Order. During the Subscription Term and based on the Netdata Services entitlements Customer purchases, Customer may be entitled to use and access the Netdata SDK and APIs, exclusively to create third-party system or service integrations to connect with the Netdata Services.
2.3. Users. Use of and access to the Netdata Services is permitted only by Users designated by Customer. Customer may grant certain Users administrative privileges (which may include authority to provision new User accounts, create new Spaces, assign Users to Spaces or control User access permissions at the account or Space level) (“Administrators”) as further described in the Documentation. Customer will, through its Administrators, invite Named User through their email address to access the Netdata Services. Customer shall require that all Named Users keep any authentication related information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken by Users on Customer’s account and for rescinding access to its account (including its Spaces) by any User that Customer no longer wishes to have access. Users may also be Customer’s end user customers.
2.4. Client Software; App Marketplaces. To the extent use of the Netdata Services require Customer to install Client Software, subject to all of the terms and conditions of this Agreement, Netdata grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term to use the object code form of the Client Software internally, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the Service Order. To the extent a User accesses the Netdata Services using an “mobile app” from the Apple Store or from Google Play (or any other third party marketplaces as or if available), Customer use of the downloaded application may be subject to additional terms and conditions with the company permitting access to the Netdata Services mobile app download. Netdata disclaims any liability for Customer’s use of third party online marketplaces.
2.5. Contractors and Affiliates. Customer may permit its independent contractors and consultants (“Contractors”) and Customer Affiliates to serve as Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement, and any such use of the Netdata Services by such Contractor or Affiliate is for the sole benefit of Customer (or such Affiliate). Use of the Netdata Services by Affiliates, Contractors, Users and Customer in the aggregate must be within the restrictions and limitations described in the applicable Service Order.
2.6. General Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Netdata Services to a third party (except to Users as permitted herein); (b) use the Netdata Services to provide or create, or incorporate the Netdata Services into, any similar service provided to a third party or otherwise directly expose the functionality of the Netdata Services to any third party (except to Users as permitted herein); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs, or to the Netdata Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Netdata); (d) copy or modify the Netdata Services or any Documentation (including any underlying workflows, algorithms, procedures or hierarchies), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Netdata Services (including any reports or data printed from the Netdata Services) and in the Documentation; (f) publicly disseminate information regarding the performance of the Netdata Services; (g) adversely impact the speed, security or integrity of the Netdata Services (or any data contained within the Netdata Services); (h) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the Netdata Services, or (i) violate the Netdata Acceptable Use Policy.
3. Customer Obligations.
3.1 In General. Customer shall ensure that Customer, its Affiliates and its Users’ use of the Netdata Services is at all times compliant with Customer’s privacy policies and all applicable laws.
3.2. Responsibility for Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data (including those submitted by its Users) and for permitting Netdata to lawfully use, process and access Customer Data in connection with Netdata performance of the Netdata Services. Subject to the terms of this Agreement, Customer hereby grants to Netdata a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Data solely to the extent necessary to provide the Netdata Services to or as directed by Customer. Customer represents and warrants to Netdata that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement, and that no Customer Data will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any laws, (iii) any terms of service, privacy policies or other agreement governing Customer Data or (iv) the Netdata Acceptable Use Policy. Netdata is not responsible for the results produced by, or Customer’s use of, the Netdata SDK or APIs. Customer shall ensure that any integrations Customer creates using the Netdata SDK or APIs are compatible and interoperable with Netdata Services and any other third party systems including Netdata Supported Hardware Systems.
3.3. Data Processing under GDPR and CCPA; Compliance with Laws.
3.3.2. Compliance with Laws. Each party shall comply with all applicable international, national, state, provincial or local laws, regulations, directives, statutes, judicial rulings, orders, or other mandates have the force and effect of law during and after the Term of this Agreement, in connection with each of their respective business operations. Customer acknowledges and agrees that Netdata Services may only be used and accessed in geographical territories in which the Netdata Services are lawful and authorized, and do not contravene or violate prevailing government regulations.
3.4. Backups of Customer Data. The Netdata Services does not archive or backup Customer Data. Netdata shall not of its own accord intentionally delete any Customer Data from the Netdata Services prior to termination of Customer’s applicable Subscription Term. Except for the foregoing, Netdata expressly disclaims all other obligations with respect to maintaining archives or backups of Customer Data.
3.5. Using Alarms/Alerts and Use of Netdata Integrations. Certain Netdata Service functionality alerts a Customer by way of a virtual alarm available through the Netdata Service dashboard that specific network events have occurred as measured by various metrics and indicators that a Customer may configure using the Netdata Services. Customer is solely responsible for its own response and reaction to each alarm generated when using such Netdata Services functionality. Without limiting any other disclaimers set forth in this Agreement, Netdata expressly disclaims any and all liability with respect to Customer use of the Netdata Service alarm and alert functionality while using the Netdata Services, and Customer releases and agrees to hold Netdata harmless from and against any damages, or any other consequences or liabilities related to Customer’s use of Netdata’s alarm and alert technologies. In addition, Netdata Integrations are provided as a convenience to the Customer, in an “as-is” condition without any express or implied warranties, and may not operate or provide full functionality in connection with Customer’s use of the Netdata Services (and could thus result in accurate Output). While Netdata will use commercially reasonable efforts to maintain Netdata Integrations, Netdata expressly disclaims any and all liability with respect to Customer use of the Netdata Integrations, or in connection with any and all access rights to Netdata Supported Systems that may require rights, permissions and access controls entirely managed by or made available to, the Customer.
3.6. Third Party Services. Netdata may, from time to time, inform Customers of third-party services that can be used by Customers in connection with the Netdata Services, including services from companies associated with Netdata’s partner program, and Customer may opt to use these or other third-party services in connection with the Netdata Services. Customer’s use of any third-party service in connection with the Netdata Services, and any terms, conditions, representations and/or warranties associated with such use, are solely as set forth in the end user license agreement (“EULA”) terms between Customer and such third-party service providers. Netdata makes no endorsement, representation or warranty with regard to any such third-party services, or any content or materials used on connection with such third-party service, even if such provider is certified by Netdata or designated as a partner by Netdata. As such, Netdata shall not be responsible or liable to Customer in any manner for any such third-party service, or compliance with the EULA. Netdata does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services, or for any integrations or interfaces created by use of Netdata’s SDK or APIs that connect such third-party services.
4. Netdata Obligations.
4.1. Technical Support Services. Netdata shall provide “Technical Support” as defined on the Pricing page located here: https://www.netdata.cloud/pricing/. Netdata does not provide direct end User Technical Support Services.
4.2. Service Level Obligations. Netdata will use commercially reasonable efforts to make the Netdata Services available with minimal downtime, 24 hours a day, 7 days a week in accordance with Netdata’s “Service Level Commitment” as defined herein. The Netdata Services will be available at least 99.5% of each month during the Term (“Availability”, or its variations), excluding “Scheduled Downtime” and “Other Causes” (“Service Level Commitment”). The Netdata Services are Available when Users are able to successfully login to the Netdata platform and access their Space(s). “Scheduled Downtime” means the downtime resulting from either a Force Majeure event(s) or for regular maintenance, improvements and upgrades. “Other Causes” means: (a) downtime caused solely by Customer and Users' use of the Netdata Services other than in accordance with the Agreement; (b) lack of Availability or untimely response time from Customer with regard to incidents that require Customer participation for source identification and/or resolution; (c) the impairment or unavailability of minor features or functionality that do not adversely affect the User experience or productivity such as cosmetic defects or pending requests for functionality or configuration changes not included in the core Netdata Services offering; (d) system impairment or unavailability caused by scheduled routine activities such as the loading of new data; and (e) Customer’s or Users' computers or network equipment and any third party activities, equipment or software not within Netdata’s direct control. Customer may request monthly Availability information from Netdata by written request. Customer can access the Netdata Availability statistics here: https://status.netdata.cloud.
4.3. Open Source. Netdata acknowledges that it uses certain Open Source libraries as part of the Netdata Services (“Open Source Software”) including in Client Software distributed to Customers. A summary and acknowledgment of Netdata’s Open Source Software use and applicable Open Source licenses associated with each library, can be found at Netdata Open Source Software libraries located here: https://github.com/netdata/netdata/blob/master/REDISTRIBUTED.md.
4.4. Professional Services. Netdata may provide agreed upon professional consulting services (“Professional Services”) that may be purchased in the applicable Service Order. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Netdata at the per-hour or daily rates set forth in the applicable Service Order (or, if not specified, at Netdata’s then-standard rates) for any Professional Services. Customer will reimburse Netdata for reasonable travel and lodging expenses as incurred, as pre-approved in writing by Customer. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Netdata Services and subject to any terms set forth in Service Order and the applicable SOW, but Netdata shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Netdata (or its agents) (excluding any underlying Customer Data, Customer’s pre-existing proprietary software or other materials designated in writing or Confidential Information).
4.5. Security Obligations. Netdata agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Netdata Services or Customer Data. However, Netdata shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Netdata’s control.
5. Service Orders; Pricing Payment Terms; Taxes.
5.1. Service Orders and Pricing. The parties shall enter into a Service Order as of the Effective Date for the initial Subscription Term. Netdata may issue new Service Orders for any of the following circumstances: a) for each Renewal Term, b) for any usage by Customer that exceeds the limits set forth in an individual Service Order, c) for Affiliate use of the Netdata Services (though Customer remains liable for any Affiliate use), or d) for additional access and use rights to new Netdata Service modules or capabilities that Netdata makes available only for a separate fee. Separate Netdata Services modules generally available as of the Effective Date are described in the Documentation and on its “Pricing” page located here: https://www.netdata.cloud/pricing/. Customer acknowledges that a new Service Order is not required for an automatic renewal that occurs under Section 8.1. Netdata Services pricing terms and descriptions as of the Effective Date are as set forth in a separate Services Order subject to and governed by this Agreement. Netdata reserves the right to increase fees applicable to Netdata Services as well as for additional Users, Spaces, Nodes, various Support Services options, new Netdata capabilities and other fees for new modules and features by providing Customer thirty (30) days’ notice prior to the end of each active Subscription Term.
5.2. Payments Terms. Netdata Services fees are invoiced either annually or monthly in advance. Except as otherwise set forth in the Service Order, Netdata will invoice the Customer monthly in arrears for the quantity of Nodes monitored during the prior monthly period at the billable rates and fees defined in the Service Order. Except as otherwise set forth in a SOW, Professional Services fees are invoiced in advance and on a time and materials basis. Except as otherwise set forth in a Service Order, Customer will pay each invoice on the date the invoice is issued. Netdata’s primary form of acceptable payment is by credit card. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum rate, whichever is lower. Customer will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of Netdata’s delinquency notice. If Customer fails to timely cure such delinquency, or regain compliance under Section 8.2 (defining the cure period for breach), Netdata may suspend Customer’s use of the Netdata Services or terminate this Agreement for breach, in addition to any other available rights and remedies. Customer is responsible for all fees, expenses and other costs relating to or connected with making invoiced payments to Netdata under this Agreement, including the direct payment of all banking fees, ACH or credit card processing fees, currency conversions, or similar transactional costs and fees; none of which Customer may deduct or off-set from the Netdata’s invoiced total fee. All terms of this Section 5 shall apply unless expressly stated otherwise in the applicable Service Order, SOW, or the Documentation.
5.3. Taxes. Netdata Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If Netdata has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 5.3, Netdata will invoice Customer and Customer will pay that amount unless Customer provides Netdata with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, Netdata shall be solely responsible for Taxes assessable against Netdata based on Netdata’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law. Should Customer be required under any law or regulation of any governmental entity or authority outside of the United States, to withhold or deduct any portion of the payments due to Netdata, then Customer shall increase the sum payable to Netdata by the amount necessary to yield to Netdata an amount equal to the sum it would have received had no withholdings or deductions been made.
5.4. No Set-Off. Customer will not set-off or offset against Netdata’s invoices amounts that Customer claims are due to Customer by Netdata, or any amounts resulting from any billing or collection disputes. Customer will bring any claims or causes of action Customer may have in a separate action and waive any rights Customer may have to offset, set-off, or withhold payment for the Netdata Services delivered by Netdata.
5.5. Use Verification. Netdata may remotely review the scope of Customer’s use of the Netdata Services, and on Netdata’s written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement with respect to access to and use of the Netdata Services. If Netdata determines that Customer has exceeded its permitted access and use rights to the Netdata Services as described in a Service Order, Netdata will notify Customer and Customer will, within 30 days, either: (1) disable any unpermitted use; or (2) purchase additional use and access rights commensurate with Customer’s actual use, at Netdata’s then effective rates and fees.
6. Confidential Information.
6.1. Confidential Information Defined. As used herein, “Confidential Information” means non-public information that the party disclosing the information designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such. Without limiting the foregoing, Confidential Information shall include any information regarding a party’s financial condition, business opportunities, plans for development of future products, unreleased versions of products, know-how, technology, customer information, and customer data. Netdata Technology, Netdata Services, Client Software and unpublished Documentation shall be deemed Netdata Confidential Information. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which: (i) is or becomes generally available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to the receiving party prior to such disclosure; or (iv) is, at any time, developed by the receiving party independent of any such disclosure(s) from the disclosing party and the receiving party can reasonably show such independence.
6.2. Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both parties agree to have each of their employees or independent contractors with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure to at least the same extent as does this Agreement. Each receiving party agrees to promptly notify the disclosing party upon learning of any unauthorized disclosure of the disclosing party’s Confidential Information, and shall provide reasonable assistance to the disclosing party to remedy and contain such breach. In connection therewith, Customer agrees to provide any such notice to Netdata at email@example.com. The foregoing notwithstanding, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice, if legally permitted, and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure, at this disclosing party’s cost and expense.
6.3. Equitable Remedies. The parties agree that a breach of the confidentiality obligations set forth in this Agreement by receiving party may cause immediate and irreparable damage to disclosing party and shall entitle disclosing party, without the necessity of posting a bond, to seek injunctive relief to prevent the continued unauthorized use of disclosing party’s Confidential Information, as well as to pursue all other remedies available to disclosing party at law.
7. Representations and Warranties.
7.1. Limited Netdata Services Warranty. Netdata warrants, for Customer’s benefit only, that the Netdata Services will operate in substantial conformity with the applicable Documentation. Netdata’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Netdata to use commercially reasonable efforts to correct the reported non-conformity, or if Netdata is unable to correct the defective Netdata Services, or if Netdata determines such remedy is impracticable, either party may then terminate the applicable Netdata Services following a cure period of not less than thirty (30) days, and Customer shall receive as its sole remedy, a refund of any fees Customer has pre-paid for use of the Netdata Services for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis.
7.2. Limited Support and Professional Services Warranty. In addition, Netdata shall perform Support Services and Professional Services in a competent, professional and workmanlike manner consistent with applicable industry practices. Provided Customer provides timely written notice of non-conforming Support or Professional Services performance within thirty (30) days following the completion of each Support or Professional Service, Netdata will timely re-perform the applicable Service in accordance with the foregoing warranty, and if Netdata is unable or incapable of performing the Support Services within thirty (30) days following the warranty claim, Customer may terminate the Subscription Term, and shall receive as its sole remedy, a refund of any fees Customer has pre-paid for use of the Netdata Services for the terminated portion of the applicable Subscription Term. If Netdata is unable or incapable of reperforming the Professional Services within thirty (30) days following the warranty claim, Customer may terminate the SOW, and receive a refund for that portion of the Professional Services that is defective.
7.3. Warranty Disclaimer.
(A) EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 7.1 and 7.2, ABOVE, THE NETDATA SERVICES ARE PROVIDED “AS IS”. NEITHER NETDATA NOR ITS PARTNERS AND SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NETDATA DOES NOT WARRANT THAT CUSTOMER’S USE OF THE NETDATA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES NETDATA WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. NETDATA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF NETDATA INCLUDING CHANGES BY NETDATA SUPPORTED HARDWARE SYSTEMS THAT RENDER NETDATA INTEGRATIONS INOPERABLE OR INCOMPATIBLE WITH THE NETDATA SERVICES. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
(B) NETDATA HAS NO LIABILITY OR RESPONSIBILITY, AND CUSTOMER IS SOLELY RESPONSIBLE, FOR ASSESSING WHETHER THE NETDATA SERVICES (INCLUDING NETDATA’S SECURITY OBLIGATIONS) WILL MEET CUSTOMER’S REGULATORY OR OTHER LEGAL OBLIGATIONS. NETDATA DOES NOT REPRESENT OR WARRANT THAT THE NETDATA SERVICES WILL ACHIEVE CUSTOMER’S DESIRED RESULTS AND NETDATA DISCLAIMS ALL LIABILITY OF ANY KIND FOR DECISIONS MADE BASED ON USE OR OTHER RESULTS OF THE NETDATA SERVICES. NETDATA HAS NO CONTROL OVER, AND WILL HAVE NO LIABILITY FOR, ANY ACTS OR OMISSIONS OF ANY USERS.
(C) CUSTOMER ACKNOWLEDGES THAT NETDATA SERVICES ARE NOT DESIGNED OR INTENDED FOR ACCESS AND/OR USE IN OR DURING HIGH-RISK ACTIVITIES, INCLUDING BUT NOT LIMITED TO: THE MONITORING OF SYSTEMS INVOLVING MEDICAL PROCEDURES; ON-LINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY. WITHOUT LIMITING ANY OTHER DISCLAIMERS SET FORTH IN THIS AGREEMENT, NETDATA EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
7.4. By Customer. Customer represents and warrants that the Customer has the right and authority to enter into this Agreement, to perform its duties and obligations hereunder, exercise its rights hereunder, and to grant the licenses granted by Customer under this Agreement. Customer further represents and warrants that Customer has secured for Netdata all right, license, permission and consent necessary to access and use Customer Data, Users’ account information and any data Users upload to the Netdata Services platform for the purposes of delivering the Netdata Services, responding to any technical problems, troubleshooting and testing, and that Customer Data do not and will not infringe on any privacy, intellectual property or other rights of third parties. Customer represents and warrants that Customer’s use of the Netdata Services shall comply with all applicable laws, regulations, statutes, judicial decisions or other rules and regulatory or governmental rulings in connection with Customer’s business operations. Customer shall be solely liable to Netdata or to third parties, for any violation, breach or non-compliance with any of the foregoing obligations.
8. Term and Termination.
8.1. Term. The term of this Agreement (“Term”) and the Netdata Services period set forth in the initial Service Order (the “Subscription Term”) shall commence on the Effective Date hereof, and shall continue until the termination of this Agreement in accordance with the terms hereof and for the duration set forth in the Service Order. The Agreement and the Netdata Services set forth in a Service Order will automatically renew for additional, consecutive periods (e.g., month to month or annually) as otherwise set forth in the Service Order (each a “Renewal Term”), unless either Party provides not less than thirty (30) days’ written notice of non-renewal prior to the end of the applicable Subscription or Renewal Term.
8.2. Termination. Either party may terminate this Agreement (including all related Service Orders) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operations without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Netdata Services (including any and all related Netdata Technology) and delete any Netdata passwords or access codes and any other Netdata Confidential Information in its possession. Thereafter, Customer acknowledges that following termination), Customer shall have no further access to the Netdata Services or any Customer Data or Output submitted to the Netdata Services, and that Netdata may delete any such materials as may have been stored by Netdata at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Notwithstanding the foregoing, Customer may be entitled to access the “free” version of Netdata Services following any termination or expiration of its paid subscription.
8.4. Survival. All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.
9.1. Netdata Indemnification. Netdata shall defend Customer from and against any claim by a third party alleging the Netdata Services when used as authorized under this Agreement, infringes a patent, copyright, or trademark and shall indemnify and hold Customer harmless from and against any damages and costs awarded against Customer or agreed in settlement by Netdata (including reasonable attorneys’ fees) resulting from such claim, provided that Netdata shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Netdata to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Netdata Services is (or in Netdata’s opinion is likely to be) enjoined, if required by settlement or if Netdata determines such actions are reasonably necessary to avoid material liability, Netdata may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Netdata Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer any fees Customer has pre-paid for use of the Netdata Services for the terminated portion of the applicable Subscription Term. The foregoing indemnification obligation of Netdata shall not apply: (1) if the Netdata Services are modified by any party other than Netdata, but solely to the extent the alleged infringement is caused by such modification; (2) if the Netdata Services are combined with platforms, data, products or processes not provided by Netdata, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Netdata Services; (4) to any action arising as a result of Customer Data, or any other third-party applications, data or components contained within the Netdata Services; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Netdata Services but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without Netdata’s prior written consent. THIS SECTION 9.1 SETS FORTH NETDATA’S AND ITS PARTNERS AND SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Netdata from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data or breach or alleged breach by Customer of Section 3 (Customer Obligations), (b) any service or product offered by Customer in connection with or related to the Netdata Services or (c) sharing of Customer Data with (or use thereof by) third-party Users. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim from Netdata (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation from Netdata at Customer’s expense.
10. Limitation Of Liability.
10.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS PARTNERS OR SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS PARTNERS AND SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO NETDATA DURING TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT.
10.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.6 (General Restrictions); (b) under Section 3 (Customer Obligations); (c) from a party’s breach of its obligations in Section 6 (Confidential Information) (but excluding claims related to Customer Data); or (d) a party’s indemnification obligations under Section 9 of this Agreement.
10.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.1. Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Netdata and to the Output. Subject to the terms of this Agreement, Customer hereby grants to Netdata a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Data solely to the extent necessary to provide the Netdata Services to or as directed by Customer.
11.2. Netdata Technology. This is a subscription agreement for access to use of the Netdata Services. Customer acknowledges that it is obtaining only a limited right to the Netdata Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Netdata or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Netdata Services, Support Services, Documentation, Professional Services deliverables (but excluding any Customer Data incorporated therein) and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Netdata Technology”). Except as expressly set forth in this Agreement, no rights in any Netdata Technology are granted to Customer. Further, Customer acknowledges that the Netdata Services is an online, hosted solution, and that except for Client Software, Customer has no right to obtain a copy of the Netdata Services. Netdata reserves all rights in and to Netdata Technology not expressly granted to Customer hereunder.
11.3. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Netdata product or service to Netdata (“Feedback”). Netdata may freely use and exploit Feedback in connection with any of its products or services without any obligation to notify, account for, or compensate Customer.
11.4. Service Data. Notwithstanding anything to the contrary herein, Customer agrees that Netdata may obtain technical and other data about Customer’s use of the Netdata Services (“Service Data”), and Netdata may use and share the Service Data to improve, support, develop, provide and deliver reporting regarding the Netdata Services during and after the Term of this Agreement, provided that when sharing the Service Data outside of Netdata’s internal business operations, Netdata does not identify Customer as the source of such Service Data without Customer’s prior written permission.
12.1. No Agency. Nothing in this Agreement shall be deemed to create any agency, partnership, joint venture, or employment relationship. Customer accepts and acknowledges that Netdata is an independent contractor providing Customer with use of the Netdata Services.
12.2. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.2 will be null and void.
12.3. Notices. All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the address identified in this Agreement, if to Netdata: Netdata, Inc., 548 Market St #31942, San Francisco, CA 94104-5401, U.S.A, Attn: Legal Department. Notices shall be deemed given when delivered by registered post or courier, with return receipt or acknowledgment requested.
12.4. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.5. Export Compliance. In its use of the Netdata Services, Customer agrees to comply with all export and import laws and regulations of the United States, the European Union and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its Users to) access or use the Netdata Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Netdata Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.6. Government End-Users. Elements of the Netdata Services are commercial computer software. If the user or licensee of the Netdata Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Netdata Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Netdata Services was developed fully at private expense. All other use is prohibited.
12.7. Anti-Corruption Laws. Customer shall comply with all anti-corruption laws and regulations (“Anti-Corruption Laws”) including but not limited to the United States Foreign Corrupt Practices Act (“FCPA”) and/or the UK Bribery Act, irrespective of whether Customer is legally subject to it. Customer shall not cause Netdata to violate the FCPA, the UK Bribery Act or any Anti-Corruption Laws in connection with the activities conducted on behalf of Netdata under the Agreement or any other activities involving Netdata (collectively, the “Activities”). Customer shall not, in connection with the Activities, pay, offer, promise, or authorize the payment or transfer of anything of value, directly or indirectly, to any other person or entity for the purpose of improperly obtaining or retaining business, for any other advantage for Netdata, or for any other purpose prohibited by the FCPA, UK Bribery Act or any Anti-Corruption Laws.
12.8. Publicity. At the request of Netdata, Customer agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Netdata Services to other potential customers. Customer agrees that Netdata may use the Customer’s name and logo on Netdata web site and in Netdata promotional materials, and to refer to Customer as a Netdata customer in marketing materials. This consent terminates upon termination of this Agreement.
12.9. Foreign Language Translation. For Customer’s convenience, Netdata may provide Customer with a non-English translation of the Agreement. Any such non-English language version of the Agreement is for reference purposes. Customer acknowledges and agrees that the English language version of the Agreement shall, in all instances, govern the parties' relationship.
12.10. Governing Law and Forum Selection. This Agreement is made and will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The Parties agree that any dispute arising under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts of San Francisco County, California, and the parties agree not to bring an action in any other venue. Customer waives any and all objections to this venue and agrees not to dispute personal jurisdiction or venue in the event of a dispute arising under this Agreement. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
12.11. Advice of Legal Counsel. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
12.12. Entire Agreement. This Agreement, including all schedules referenced in this Agreement, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any schedule, the terms and conditions of this Agreement will govern. No Party hereto has relied on any statement, representation or promise of any Party or representative thereof except as expressly set forth in this Agreement. Any changes or amendments to this Agreement must be in writing, expressly refer to the changes to this Agreement, and be duly executed by both parties.
12.13. Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party’s nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.
12.14. Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
SCHEDULE 1 - ACCEPTABLE USE POLICY
This Acceptable Use Policy (“AUP”) sets forth the restrictions regarding use of the Netdata, Inc. (“Netdata”) Services platform (the “Netdata Services”). Use of the Netdata Services is governed by the separate agreement entered into between the user (“User”) and Netdata (the “Agreement”) and the Service Order. This AUP is incorporated into the Agreement by reference. Defined term used in this AUP shall have the same meanings as set forth in the Agreement or Service Order.
1. The user shall not:
1.1. use the Netdata Services to store or transmit infringing, libelous or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
1.2. use the Netdata Services to store or transmit viruses or malicious code;
1.3. interfere with or disrupt the integrity or performance of the Netdata Services, or attempt to or actually override any security component included in the Netdata Services;
1.4. attempt to gain unauthorized access to the Netdata Services or any related systems or networks;
1.5. permit direct or indirect access to or use of the Netdata Services in a way that violates the Agreement;
1.6. use the Netdata Services to generate or send unsolicited communications, advertising or spam, or otherwise cause Netdata to become impaired in its ability to send communications on its own or on its customers’ behalf (e.g., by causing Netdata to become registered on any email DNS blacklist or otherwise be denied services by any other third party communications service provider); or
1.7. do anything that in any way would cause the Netdata Services or any tool or other software provided with or used in connection with the Netdata Services (including Client Software or Netdata Integrations), or any part thereof, to be subject to any Open Source Software license or agreement, including without limitation any license or agreement that would require or purport to require that the Netdata Services or any part thereof be disclosed or distributed in source code form or licensed for the purpose of making derivative works. “Open Source Software” means any open source, community or other free code or libraries of any type, including, without limitation, any code which is made generally available on the Internet without charge (such as, for example purposes only, any code licensed under any version of the MIT, BSD, Apache, Mozilla or GPL or LGPL licenses).
1.8. use the Netdata Services in any illegal or unlawful manner, or for any illegal or unlawful purpose, or to stalk, harass, or harm another individual;
1.9. perform any act which is intended to and/or actually does harm to Netdata, the Netdata Services, or any of Netdata’s customers;
1.10. imply or state, directly or indirectly, that Customer is affiliated with or endorsed by Netdata without Netdata’s express written permission;
1.11. share the Customer’s password (e.g. concurrent use rights are prohibited) or let any third party access Customer’s account, or take any other action which would affect the security of the Customer’s account; or
1.12. perform any act or fail to act while using the Netdata Service, in violation of the Netdata’s Code of Conduct located here: https://learn.netdata.cloud/docs/nightly/miscellaneous/netdata-community-code-of-conduct.
2. Monitoring and Suspension Rights.
Netdata will not review or screen Customer Data on a regular basis for compliance with this AUP or applicable law, and Netdata shall have no obligation to do so; provided, however, that in addition to any other rights Netdata may have, Netdata reserves the right to suspend and/or terminate Customer’s access to and/or use of the Netdata Services, or any particular Customer Data, if Netdata determines, in its sole judgment and discretion, that such suspension or termination is necessary to comply with the foregoing restrictions, applicable law, and/or to prevent significant harm to the Netdata Services or any User, and in such event, Netdata shall use commercially reasonable efforts to suspend or terminate only that portion of the Netdata Services or any particular Customer Data as Netdata deems reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
3. Usage Policy.
User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. Netdata may, at its sole discretion, suspend Customer’s right to use the Netdata Services, and/or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the Netdata Services), if Netdata determines that Customer usage varies substantially from normal use, and/or there is an unusual spike or increase in Customer use of the Netdata Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Netdata Services. Netdata will use good faith efforts to notify the Customer in the event of such suspension and/or termination.