Rescale Customer Agreement
Last updated July 8, 2022
This Rescale Customer Agreement (“Agreement”) is effective on the date the individual end user of the Rescale Platform clicks the acceptance button to which this Agreement is linked (“Effective Date”) between that end user (“Rescale Customer”) and Rescale, Inc. (“Rescale”).
By clicking on that acceptance button, Rescale Customer represents that it has the legal authority to bind its employer or other entity on whose behalf it is authorized to enter into this Agreement (“Enterprise User”) to the terms and conditions of this Agreement. Obligations of the Rescale Customer herein will be deemed to be obligations of Enterprise User unless explicitly stated otherwise.
In the event Enterprise User has entered into (or subsequently enters into) a written “Rescale Enterprise Agreement” with Rescale, that Rescale Enterprise Agreement will control with respect to a conflict between any of the terms of that Rescale Enterprise Agreement and those of this Agreement.
1. LICENSED USAGE OF RESCALE PLATFORM
1.1 License Grant to Rescale Customer
Rescale hereby grants to Rescale Customer, during the term of this Agreement, a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Rescale Platform to run Jobs (and store and retrieve Enterprise User Data) solely in accordance with the terms of this Agreement. Except as explicitly provided herein, Enterprise User and Rescale Customer obtain no intellectual property or other rights in the Rescale Platform.
1.2 Monthly Infrastructure Fees for Usage of CSP Infrastructure via Rescale Platform
Rescale will monitor, during each calendar month, each Rescale Customer’s hourly usage of CSP Infrastructure via the Rescale Platform, and will compute (based upon the Rescale Pricing described below) the total fees owed by Enterprise User to Rescale for that calendar month as a result of such usage, after taking into account the remaining amount of any Deposits or other fees (“Enterprise User Monthly Infrastructure Fees”).
1.3 Monthly Software Fees for Usage of Licensed Application Software via Rescale Platform Rescale will also monitor, during each calendar month, each Rescale Customer’s hourly usage of third-party Licensed Application Software (to the extent it is licensed on an On-Demand basis) via the Rescale Platform, and will compute (as described below) the total fees owed by Enterprise User to each relevant ISV for that calendar month as a result of such usage (“Enterprise User Monthly Software Fees”).
1.4 Professional Services
In addition to providing access to the Rescale Platform, Rescale offers a variety of “Professional Services” (typically for an additional charge), including without limitation: (i) development of integrations of the Rescale Platform with various aspects of Enterprise User systems, including on- premise hardware, license servers and cloud accounts, among others; (ii) a “Quickstart Package” (including a variety of onboarding, training and technical support services; (iii) premium tiers of Rescale technical support services beyond those included with Rescale’s standard “production” tier; and (iv) Rescale Dedicated Customer Success Engineer (“CSE”) Services, including various technical services of a dedicated engineer familiar with Enterprise User’s workflow and user teams.
While certain of these Professional Services may be offered at standard published Rescale rates, others may be negotiated and specified in an Order Form, signed by Rescale and Enterprise User, which specifies custom pricing, milestones and other related obligations of the parties. Fees for these Professional Services will not be applied against Deposits.
To the extent any of these Professional Services results in the development of tangible work product (whether created exclusively by Rescale, or by or with the assistance of Enterprise User or any of the Rescale Customers), all resulting intellectual property rights in such work product will be owned entirely and exclusively by Rescale, and licensed to Enterprise User solely for use in connection with this Agreement. In the event any such intellectual property rights are, by operation of law, deemed to be owned by Enterprise User or any of the Rescale Customers (exclusively, jointly with Rescale or otherwise), Enterprise User and Rescale Customer hereby agree to assign all such intellectual property rights to Rescale, and to cooperate with Rescale to facilitate such assignment.
2. PRICING, FEES AND PAYMENTS
2.1 Rescale Pricing
Rescale will calculate Enterprise User Monthly Infrastructure Fees by multiplying (i) each Rescale Customer’s hourly usage (during that month) of third-party CSP Infrastructure via the Rescale Platform, by (ii) the sum of the applicable CSP Infrastructure Rates and Rescale Platform Rates. Enterprise User Monthly Infrastructure Fees will include the sum of such amounts for each Rescale Customer, as well as any Other Infrastructure Fees incurred that month.
The Infrastructure Rates and Platform Rates applicable to Jobs run by Rescale Customers will be accessible to designated administrators of the Enterprise User Account via the Rescale Platform interface. Such rates may also be specified (in whole or in part) in an active Order Form.
“Reserved Instance” and other flat-fee or similar non-usage-based pricing, may also be specified in an Order Form.
2.2 Third-Party Software Pricing
Rescale will calculate Enterprise User Monthly Software Fees by multiplying (i) each Rescale Customer’s hourly usage (during that month) of third-party Licensed Application Software (to the extent it is licensed on an On-Demand basis) via the Rescale Platform, by (ii) the applicable On- Demand rates charged by each ISV.
2.3 Payments of Invoices
Rescale will make available to Enterprise User, via an administrative interface to the Rescale Platform, the detailed usage of each Rescale Customer and the current balance, if any, of unexpired Deposits.
Rescale will invoice Enterprise User for any payments due with respect to: (i) Enterprise User Monthly Infrastructure Fees; (ii) Enterprise User Monthly Software Fees (owed by Enterprise User to the relevant ISVs); and (iii) other miscellaneous fees owed to Rescale (including unpaid fees for support and other Professional Services, as well as the amounts of any unpaid invoices and applicable interest charges).
Rescale Customer (or Enterprise User, if applicable) will pay to Rescale the total amount of each invoice within thirty (30) days from the date of the invoice. Unless explicitly noted otherwise, all amounts are exclusive of applicable sales, use, value-added and other taxes, as well as applicable tariffs, customs duties and similar charges. Each party will be responsible for paying its own taxes levied by relevant taxing authorities.
3. RESCALE CUSTOMER RESPONSIBILITIES AND OBLIGATIONS
3.1 Rescale Customer Account
To access the Rescale Platform, Rescale Customer must create an individual Rescale Customer Account (tied to a master Enterprise User Account, if applicable) associated with a single valid email address (or, if explicitly permitted, multiple valid email addresses). Rescale Customer is responsible for all activities that occur under the Rescale Customer Account, regardless of whether the activities are undertaken by Rescale Customer or any other individual or entity. Rescale is not responsible for unauthorized access to a Rescale Customer Account, except to the extent caused by Rescale’s breach of this Agreement. Rescale Customer will contact Rescale immediately if Rescale Customer believes that an unauthorized third party may be using its Rescale Customer Account, or if any related account information has been lost or stolen. Rescale Customer or Enterprise User may terminate the Rescale Customer Account at any time in accordance with the termination provisions below.
3.2 Enterprise User Data
Rescale Customer is solely responsible for the development, content, operation, maintenance and use of the Enterprise User Data to which it has access, including (i) its technical operation, such as ensuring compatibility of calls to particular services of the Rescale Platform with the relevant Rescale and third-party APIs, (ii) compliance with law, as well as with any applicable Rescale policies regarding the usage of Enterprise User Data and the Rescale Platform; (iii) any claims relating to the Enterprise User Data; and (iv) proper handing and processing of notices sent to Rescale Customer or Enterprise User by any person or entity claiming that the Enterprise User Data violates their intellectual property rights, including notices pursuant to the Digital Millennium Copyright Act. Rescale is not responsible for the accuracy of the Enterprise User Data, including the output of Jobs, and its suitability for any desired use or purpose.
3.3 Use of the Rescale Platform
Rescale Customer is responsible for properly configuring and using the services and other functionality offered via the Rescale Platform, and for taking steps to maintain appropriate security, protection and backup of the Enterprise User Data (which steps may include the use of encryption technology to protect the Enterprise User Data from unauthorized access, as well as routine archiving of the Enterprise User Data). Rescale log-in credentials and private keys generated to facilitate use of the Rescale Platform are for Rescale Customer’s personal use, and may not be sold, sublicensed or otherwise transferred to any other person or entity. Rescale Customer must comply with the terms of all licenses and technical documentation relating to the use of the Rescale Platform, the Licensed Application Software and the CSP Infrastructure.
3.4 Violations by Rescale Customers
Enterprise User will be deemed to have taken any action that Rescale Customer permits, assists or facilitates any person or entity to take (including Enterprise User and other Rescale Customers) relating to this Agreement. Rescale Customer is responsible for promptly reporting to Rescale any violation of the terms of this Agreement, whether committed by Rescale Customer, Enterprise User, other Rescale Customers or any other person or entity, and, to the extent feasible, for terminating access to the Rescale Platform by any person or entity committing such violation.
Rescale provides basic information, documentation and support for users of the Rescale Platform via its website. Rescale Customer is responsible for obtaining any additional support regarding its use of the Rescale Platform from Enterprise User, which may contract with Rescale for various premium support options.
3.6 No Illegal, Harmful or Offensive Use or Content
Rescale Customer may not use or instruct others to use (or encourage, promote or facilitate such use of) the Rescale Platform or the Rescale website for any illegal, harmful or offensive activity, including transmitting, storing, displaying, distributing or making available content that is illegal, harmful or offensive. Prohibited activities or content include:
- Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services.
- Harmful or Fraudulent Activities. Activities that may be harmful to others, Rescale’s operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
- Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
- Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.
- Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
3.7 No Security Violations
Rescale Customer may not violate (or use the Rescale Platform or the Rescale website to violate) the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
- Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
- Interception. Monitoring of data or traffic on a System without permission.
- Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.
3.8 No Network Abuse
Rescale Customer may not make network connections to any users, hosts, or networks unless it has permission to communicate with them. Prohibited activities include:
- Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
- Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
- Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
- Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
- Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
3.9 No Email or Other Messaging Abuse
Rescale Customer may not distribute, publish or otherwise send (or facilitate the sending of) unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. Rescale Customer may not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission, and may not collect replies to messages sent from another internet service provider if those messages violate any of Rescale’s policies or those of that provider.
3.10 No Other Circumvention of the Intended Use of the Rescale Platform
In addition to the above responsibilities and obligations, Rescale Customer may not otherwise circumvent or interfere with the intended operation of the Rescale Platform. In particular, Rescale Customer may not attempt to (i) modify, alter, tamper with, repair or otherwise create derivative works of any component of the Rescale Platform; (ii) reverse engineer, disassemble or decompile, or apply any other process or procedure to derive the source code of any component of the Rescale Platform; (iii) access or use the Rescale Platform in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted to Rescale Customer hereunder are conditional on continued compliance with this Agreement, and will immediately and automatically terminate upon a lack of compliance with any term or condition of this Agreement.
3.11 Rescale Monitoring and Enforcement
Rescale reserves the right, but does not assume the obligation, to investigate any violation of Rescale Customer’s obligations under this Agreement, including any misuse of the Rescale Platform or Rescale website. Rescale may:
- Investigate such violations; or
- Remove, disable access to, or modify any content or resource underlying such violations, including any other agreement with Rescale Customer or Enterprise User regarding use of the Rescale Platform.
Rescale may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Such reporting may include disclosing appropriate customer information. Rescale also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to such alleged violations.
In the event Rescale determines that Rescale Customer has violated any of the above responsibilities or obligations, Rescale may suspend Rescale Customer’s continued access to the Rescale Platform (on a temporary or permanent basis, depending upon the severity of the violation).
4. TERM AND TERMINATION
4.1 Term of Agreement
Subject to contrary terms in a written Rescale Enterprise Agreement, this Agreement will be in effect until terminated by either party (including Enterprise User on behalf of Rescale Customer) as specified below.
Either party may terminate this Agreement without cause upon thirty (30) days’ advance written notice to the other party.
Either party may terminate this Agreement for cause immediately, upon written notice to the other party of its intent to terminate, in the event of a material breach of this Agreement by the other party, or a default by the other party of any obligation of this Agreement which is not cured within thirty (30) days following written notice of such default.
Upon termination of this Agreement (whether or not for cause), Rescale Customer (or Enterprise User, if applicable) will pay to Rescale the pro-rata portion of any amounts owed in accordance with this Agreement. Rescale will return the Enterprise User Data (and, to the extent feasible, any Confidential Information received hereunder) to Enterprise User, and close all Rescale Customer Accounts tied to the Enterprise User Account. Termination of a Rescale Enterprise Agreement will automatically result in termination of this Agreement.
5.1 Confidential Information
“Confidential Information” means any information disclosed, directly or indirectly, by either party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement (including, without limitation, technical, business, financial, legal and related information that relates to or describes the Disclosing Party’s research, products, services, customers, employees, contractors, business plans or strategies, business relationships, pricing, markets, hardware, software, developments, inventions, trade secrets, know-how, processes, designs, drawings, engineering, marketing, or manufacturing activities) that is maintained in confidence by the Disclosing Party and is either (a) in written, graphic, machine-readable or other tangible form, and marked in some manner to indicate its confidential nature, or (b) otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information may include information of a third party that is in the possession of the Disclosing Party and is disclosed to the Receiving Party under this Agreement. Confidential Information includes Enterprise User Data.
5.2 Exceptions to Confidential Information
Confidential Information will not, however, include any information that is:
(a) publicly known through no wrongful act of the Receiving Party;
(b) rightfully obtained by the Receiving Party without restriction on disclosure and without a breach of confidentiality;
(c) independently developed by the Receiving Party without breach of any provision of this Agreement and without reliance upon any Confidential Information; or
(d) required to be disclosed by the Receiving Party by law or court order provided that, prior to such disclosure, the Receiving Party (to the extent permitted by applicable law) provides the Disclosing Party with reasonable cooperation and a reasonable opportunity to intervene in any legal proceeding.
5.3 Use and Disclosure of Confidential Information
The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than the reasonable performance of its obligations under this Agreement. The Receiving Party will apply the same degree of care to the Disclosing Party’s Confidential Information that it applies to its own Confidential Information, but in no event less than a reasonable degree of care, and will not disclose any such Confidential Information to any third party without the Disclosing Party’s express written consent.
5.4 Post-Termination Period of Confidentiality
The confidentiality obligations hereunder will survive for a period of three (3) years following termination of this Agreement.
Rescale represents and warrants that it will maintain the service levels and satisfy the related obligations set forth in the current version (as of the Effective Date) of the Rescale Service Level Agreement (“SLA”) at https://rescale.com/company/legal/sla.
6.3 Data Security
Rescale represents and warrants that it will satisfy the data security obligations (with respect to the Enterprise User Data) set forth in the current version (as of the Effective Date) of the Rescale Data Security Policy at https://rescale.com/company/legal/data-security-policy/.
6.4 Technical Support Packages and Policy
Rescale represents and warrants that it will satisfy the support obligations set forth in the current version (as of the Effective Date) of the Rescale Technical Support Packages and Policy at https://rescale.com/company/legal/support-policy/.
EXCEPT AS EXPLICITLY PROVIDED HEREIN, THE RESCALE PLATFORM, CSP INFRASTRUCTURE AND LICENSED APPLICATION SOFTWARE ARE PROVIDED “AS IS” AND RESCALE AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RESCALE EXPRESSLY DISCLAIMS LIABILITY FOR ANY BREACH OF CONFIDENTIALITY, PRIVACY OR DATA SECURITY (INCLUDING BREACHES INVOLVING ENTERPRISE USER DATA) ON THE CSP INFRASTRUCTURE CAUSED BY CSP THROUGH NO FAULT OF RESCALE. RESCALE MAY CHANGE, DISCONTINUE OR DEPRECATE CERTAIN FUNCTIONALITY OF THE RESCALE PLATFORM FROM TIME TO TIME (INCLUDING APIs), AND WILL EXERT REASONABLE EFFORTS TO NOTIFY ENTERPRISE USER OF ANY MATERIAL CHANGE TO THE RESCALE PLATFORM.
7. LIMITATION OF LIABILITY
SUBJECT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES AND THEIR AFFILIATES AND SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LIABILITY THAT MAY RESULT FROM USE OF THE CSP INFRASTRUCTURE OR LICENSED APPLICATION SOFTWARE VIA THE RESCALE PLATFORM.
IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE AMOUNTS PAID BY ENTERPRISE USER TO RESCALE UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE ACTIONS GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE ABOVE, IN THE EVENT OF LIABILITY FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY OR BREACH OF CONFIDENTIALITY, PRIVACY OR DATA SECURITY (AS DESCRIBED HEREIN), NEITHER PARTY’S LIABILITY TO THE OTHER WILL EXCEED THE LESSER OF (I) THREE TIMES THE AMOUNTS PAID BY ENTERPRISE USER TO RESCALE UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE ACTIONS GIVING RISE TO SUCH LIABILITY AND (II) ONE MILLION DOLLARS ($1,000,000).
8. DEFENSE OF THIRD-PARTY CLAIMS
THE PARTIES WILL DEFEND EACH OTHER AGAINST THE THIRD-PARTY CLAIMS SET FORTH BELOW AND WILL PAY TO THE OTHER THE AMOUNT OF ANY RESULTING ADVERSE JUDGMENT OR APPROVED SETTLEMENT (SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH ABOVE) – PROVIDED THAT THE DEFENDING PARTY IS PROMPTLY NOTIFIED IN WRITING OF THE CLAIM AND HAS THE RIGHT TO CONTROL THE DEFENSE AND SELECTION OF COUNSEL, AND APPROVE ANY SETTLEMENT. THE PARTY BEING DEFENDED MUST PROVIDE THE DEFENDING PARTY WITH ALL REQUESTED ASSISTANCE, INFORMATION AND AUTHORITY (FOR WHICH THE DEFENDING PARTY WILL REIMBURSE REASONABLE OUT-OF-POCKET EXPENSES RELATING THERETO). THIS SECTION DESCRIBES THE PARTIES’ SOLE REMEDIES AND ENTIRE LIABILITY FOR SUCH CLAIMS.
8.2 BY RESCALE
RESCALE WILL DEFEND ENTERPRISE USER WITH RESPECT TO ALL THIRD PARTY CLAIMS FOR INTELLECTUAL PROPERTY INFRINGEMENT ARISING SOLELY FROM THE GENERIC USE OF THE RESCALE PLATFORM BY ANY USER – EXCLUDING (i) THIRD-PARTY CLAIMS FOR PATENT INFRINGEMENT AND (ii) THIRD-PARTY CLAIMS FOR PATENT OR COPYRIGHT INFRINGEMENT WITH RESPECT TO THE CSP INFRASTRUCTURE OR LICENSED APPLICATION SOFTWARE (WHICH ARE NOT PART OF THE RESCALE PLATFORM AND FOR WHICH RESCALE PROVIDES NO WARRANTY).
IF RESCALE IS UNABLE TO RESOLVE ANY SUCH CLAIM, IT MAY AT ITS OPTION (1) MODIFY THE RESCALE PLATFORM WITH SUBSTANTIALLY EQUIVALENT FUNCTIONALITY THAT AVOIDS CONTINUED INFRINGEMENT OR (2) TERMINATE THIS AGREEMENT AND REFUND ANY AMOUNTS PAID TO RESCALE DURING THE PERIOD OF INFRINGEMENT COVERED BY SUCH CLAIM. IN NO EVENT WILL RESCALE BE LIABLE FOR CONTINUED USE OF THE RESCALE PLATFORM BY ENTERPRISE USER OR ANY OF THE RESCALE CUSTOMERS AFTER ENTERPRISE USER HAS BEEN NOTIFIED TO CEASE SUCH USE DUE TO THE CLAIM.
8.3 BY ENTERPRISE USER
ENTERPRISE USER WILL DEFEND RESCALE WITH RESPECT TO ALL THIRD PARTY CLAIMS FOR INTELLECTUAL PROPERTY INFRINGEMENT ARISING SOLELY FROM ENTERPRISE USER DATA OR OTHER ALLEGEDLY INFRINGING MATERIAL UPLOADED TO THE RESCALE PLATFORM BY (OR ON BEHALF OF) ENTERPRISE USER, OR OTHER INFRINGING ACTIVITIES OF ENTERPRISE USER OR RESCALE CUSTOMERS NOT INHERENT IN THE USE OF THE RESCALE PLATFORM – EXCLUDING THIRD-PARTY CLAIMS FOR PATENT INFRINGEMENT.
9.1 Independent Contractors
Rescale and Rescale Customer are independent contractors, and neither has any authority to act as agent for the other, except as expressly provided herein.
9.2 Force Majeure
Neither party will be liable for any delay in or failure to perform any of its non-monetary obligations under this Agreement if due to any cause or condition beyond their reasonable control, whether foreseeable or not.
A failure or delay by either party in enforcing any provision of this Agreement will not constitute a waiver preventing such party from enforcing any other provision of this Agreement.
The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provisions of this Agreement, which will remain in full force and effect.
9.5 Modifications to Agreement
This Agreement may not be modified or amended without the advance written consent of all parties hereto.
This Agreement will not be assigned by either party without the written consent of the other, which consent will not be unreasonably withheld. Notwithstanding the above, this Agreement may be assigned by either party to its successor or any entity acquiring all or substantially all of its assets.
9.7 Governing Law
This Agreement will be governed by and interpreted in accordance with the substantive laws of the State of California. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state courts located in the City and County of San Francisco, California, and the federal courts located in the Northern District of California, and each party hereby consents to the personal jurisdiction thereof.
9.8 Entire Agreement
This Agreement constitutes the entire understanding between the parties, and supercedes all prior
or contemporaneous communications, understandings and agreements between the parties with respect to the subject matter hereof. Notwithstanding the above, the terms of an applicable Rescale Enterprise Agreement will control with respect to a conflict between any such terms and those of this Agreement.
10.1 “Rescale Platform” means the cloud-based, high-performance computing environment operated by Rescale (a “Platform-as-a-Service” PaaS cloud provider) which enables Rescale Customers to run Jobs that involve the execution of Licensed Application Software on CSP Infrastructure. Rescale retains ownership of all intellectual property rights in the Rescale Platform. The Rescale Platform includes all derivative versions or editions thereof, including but not limited to versions branded with the ScaleX® trademark or trademarks of Enterprise User.
10.2 “CSP Infrastructure” means the hardware resources (such as CPU cores, memory and network bandwidth) and operating systems and other associated software (excluding Licensed Application Software) operated by a “cloud service provider” (“CSP”) or other entity (including Enterprise User) on which Jobs execute. CSP Infrastructure includes “bare metal” as well as virtual hardware, “on-premises” hardware (e.g., on the premises of Enterprise User or a third party) and third-party cloud platforms controlled by or on behalf of Enterprise User.
10.3 “Rescale Customers” include the Rescale Customer as well as other individual “end users” (Enterprise User employees, contractors, subcontractors or other affiliated persons) authorized by both Enterprise User and Rescale to run Jobs on the Rescale Platform. Each Rescale Customer is provided with an individual “Rescale Customer Account” on the Rescale Platform tied to a master “Enterprise User Account.”
10.4 “Enterprise User” means the entity (e.g., employer) on whose behalf Rescale Customer is authorized to enter into this Agreement. Rescale Customer will be deemed to be Enterprise User if Rescale Customer is an individual whose use of the Rescale Platform is entirely unaffiliated with and unrelated to any employer or other entity.
10.5 “Job” means the implementation of a workflow on the Rescale Platform which invokes Licensed Application Software to execute on CSP Infrastructure.
10.6 “Enterprise User Data” means the proprietary models and other data employed by Rescale Customers to configure and run Jobs on the Rescale Platform. Enterprise User Data includes Job results as well as “personally identifiable information” (“PII”) regarding Rescale Customers.
10.7 “Independent Software Vendor” or “ISV” means a (typically third-party) software vendor who has authorized Rescale Customer (directly or indirectly) to run Jobs on the Rescale Platform. An ISV may provide such authorization to Enterprise User or Rescale Customer directly (e.g., via a written software license) or indirectly (e.g., via an On-Demand license pool administered by Rescale).
10.8 “Licensed Application Software” means the computer programs which ISVs have licensed to Enterprise User or Rescale Customer (directly or indirectly) to allow Rescale Customer to run Jobs on the Rescale Platform. Licensed Application Software includes software uploaded onto the Rescale Platform by Enterprise User or any of the Rescale Customers, as well as commercial off- the-shelf and open-source software provided by ISVs and/or Rescale and installed on the Rescale Platform.
10.9 “Deposit” means an advance nonrefundable payment to Rescale from Enterprise User (the amount and duration of which is specified in a written “Order Form” signed by both parties) against which usage of the Rescale Platform by Rescale Customers is applied at specified core-hour or other Rescale Pricing rates. Upon expiration or depletion of a Deposit, Enterprise User will be charged for future usage at specified “pay per go” (“PPG”) rates. Unused portions of an expired Deposit will be forfeited. Fees for support and other Professional Services (and for usage of Licensed Application Software) will not be applied against Deposits.
10.10 “Rescale Pricing” means the core-hour or other rates (specified or referenced herein or in a separate written agreement, such as an Order Form, signed by both parties) which Rescale charges to Enterprise User for usage of the Rescale Platform by Rescale Customers. Rescale Pricing includes “Infrastructure Rates” (based on rates charged by CSP Infrastructure providers for usage of their hardware and related infrastructure), “Platform Rates” (rates charged by Rescale for usage of the Rescale Platform) and “Other Infrastructure Fees” (e.g., for data storage and transfer, as well as use, configuration and integration of license servers and other miscellaneous components and services).
10.11 “Third-Party Software Pricing” means the rates or other fees charged by third-party ISVs to Enterprise User (directly or indirectly) for usage of the Licensed Application Software via the Rescale Platform by Rescale Customers. To the extent Enterprise User has an active “bring-your- own-license” (“BYOL”) agreement with an ISV, no additional software fees will be applied by Rescale. To the extent Enterprise User relies on a direct or indirect “On-Demand” license from an ISV (e.g., via a written license or an On-Demand license pool administered by Rescale), Rescale will compute software fees owed to that ISV by Enterprise User based on the usage of the ISV’s Licensed Application Software by Rescale Customers and the On-Demand rates charged by the ISV.