PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING ANY HOSTED SERVICES (DEFINED BELOW), CUSTOMER-HOSTED SERVICES (DEFINED BELOW), PROFESSIONAL SERVICES (DEFINED BELOW), OR RELATED OFFERINGS PROVIDED BY UNMESHED, INC. (COLLECTIVELY, THE "SERVICES"). BY SIGNING OR ACCEPTING AN ORDER FORM, STATEMENT OF WORK, ONLINE SUBSCRIPTION, OR OTHER AGREEMENT THAT REFERENCES THESE TERMS, OR BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ORGANIZATION YOU REPRESENT.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY. IN THAT CASE, "CUSTOMER," "YOU," AND "YOUR" REFER TO THAT ENTITY, EXCEPT WHERE THE CONTEXT CLEARLY REFERS TO YOU AS AN INDIVIDUAL. UNMESHED AND CUSTOMER MAY EACH BE REFERRED TO AS A "PARTY" AND TOGETHER AS THE "PARTIES."
THESE TERMS, TOGETHER WITH ANY APPLICABLE ORDER FORM, STATEMENT OF WORK, OR OTHER WRITTEN AGREEMENT THAT REFERENCES THEM, FORM THE AGREEMENT BETWEEN UNMESHED AND CUSTOMER. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE AUTHORITY TO ACCEPT THEM, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. Scope of Services and Restrictions
1.1 Access to and Scope of Services
Subject to these Terms and any applicable Order Form, Statement of Work, or other written agreement between the Parties, Unmeshed grants Customer a limited, non-exclusive, non-transferable right to access and use the Services during the applicable subscription, evaluation, or service term.
"Hosted Services" means the Unmeshed Platform, related applications, APIs, and cloud-based services that are hosted or operated by Unmeshed.
"Customer-Hosted Services" means the Unmeshed Platform, related applications, APIs, software, and other materials made available by Unmeshed for deployment or operation by Customer, including on Customer's own infrastructure, private cloud, virtual private cloud, or other customer-managed environment.
"Professional Services" means implementation, configuration, consulting, training, support, migration, or other professional services that Unmeshed provides to Customer under an applicable Statement of Work or other written agreement.
"Site" means Unmeshed's informational website, including but not limited to https://unmeshed.io and related webpages.
"Platform" means the Unmeshed development management platform and related software functionality made available by Unmeshed.
Customer may use the Services solely for Customer's internal business purposes and only in accordance with these Terms, the applicable Order Form or Statement of Work, and all applicable laws and regulations.
1.2 Trials and No-fee Access
If Customer accesses or uses the Services on a free, trial, beta, pilot, evaluation, or other no-fee basis ("Evaluation Access"), Customer may use the Services only for the period and purpose authorized by Unmeshed or set forth in the applicable Order Form. Customer acknowledges that Evaluation Access is provided "as is" and "as available," without warranties, representations, service commitments, support obligations, indemnification, or other commitments of any kind, except to the extent required by applicable law. Unmeshed may modify, suspend, or terminate Evaluation Access at any time, with or without notice.
1.3 Restrictions
Customer will use the Services only in accordance with these Terms, the applicable Order Form or Statement of Work, the Acceptable Use Policy, and all applicable laws and regulations, including laws related to data protection, privacy, export control, and data processing. Customer will not, and will not permit or facilitate any third party to: (i) decipher, decompile, disassemble, reverse engineer, frame, or mirror any part of the Services, or otherwise attempt to discover any source code, underlying structure, ideas, algorithms, or non-public APIs of the Services, except to the extent such restriction is prohibited by applicable law; (ii) circumvent, disable, or interfere with any security-related feature, access control, usage limit, or feature that prevents or restricts use or copying of any content available through the Services; (iii) use the Services for any commercial purpose other than Customer's internal business purposes or as otherwise expressly authorized in writing by Unmeshed; (iv) use any robot, spider, scraper, crawler, retrieval application, or other manual or automated process to retrieve, index, mine, copy, monitor, or circumvent the structure or presentation of the Services; (v) access or use another user's account without authorization; (vi) remove or alter any proprietary notices included in the Services; (vii) sublicense, resell, rent, lease, transfer, or otherwise make the Services available to any unauthorized third party; or (viii) use the Services in any manner not permitted by these Terms, the applicable Order Form or Statement of Work, or applicable law.
1.4 Ownership
Unmeshed and its licensors retain all right, title, and interest in and to the Services, Site, Platform, software, documentation, interfaces, designs, text, graphics, demos, underlying source files, trademarks, service marks, logos, and all related intellectual property rights ("Unmeshed IP"). Except for the limited rights expressly granted under these Terms or an applicable Order Form or Statement of Work, no rights or licenses are granted to Customer by implication, estoppel, or otherwise. Customer or its licensors retain all right, title, and interest in and to any data, files, text, code, comments, materials, or other content Customer provides to or generates through the Services, excluding Unmeshed IP. If Customer provides suggestions, comments, ideas, or other feedback regarding the Services ("Feedback"), Unmeshed may use that Feedback without restriction or compensation to Customer.
1.5 Customer Data
"Customer Data" means data, information, files, records, configurations, workflow content, or other materials that Customer provides, uploads, submits, connects, or makes available to Unmeshed or the Services for processing on Customer's behalf. As between the Parties, Customer owns and retains all right, title, and interest in Customer Data, including any intellectual property rights. Customer is responsible for Customer Data and for ensuring that Customer Data and Customer's use of the Services comply with this Agreement, applicable law, data protection requirements, data localization or sovereignty obligations, third-party rights, and any other requirements applicable to Customer. Customer is also responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, backup, and maintenance of Customer Data, and for selecting any applicable processing region based on Customer's requirements. Customer is responsible for all use of the Services through Customer's accounts, credentials, or access keys, including unauthorized use, except to the extent the unauthorized use is caused by Unmeshed's failure to secure the Hosted Services. Unless an Order Form or Statement of Work states otherwise, Unmeshed may retain Customer Data in its possession or control for up to thirty (30) days after expiration or termination of the applicable Order Form or Hosted Services subscription, after which Customer Data may be deleted. For Customer-Hosted Services, Customer is responsible for retaining, exporting, backing up, and deleting Customer Data in Customer-managed environments.
1.6 Usage Data
Unmeshed may collect and generate technical, operational, statistical, diagnostic, and usage information relating to the configuration, performance, operation, availability, security, billing, support, and use of the Services ("Usage Data"). Usage Data may include information about feature usage, system activity, performance metrics, logs, account activity, and similar metadata, but does not include Customer Data itself. Unmeshed may use Usage Data during the Agreement term to provide, operate, secure, support, administer, and bill for the Services, and during and after the Agreement term to maintain, improve, analyze, and develop the Services. Unmeshed may also use Usage Data in aggregated or de-identified form for analytics, benchmarking, research, product development, and business purposes, provided that such use does not identify Customer or any individual user. Unmeshed may disclose Usage Data to third parties only for the purposes described in this Section and, for aggregated or de-identified Usage Data, only in a form that does not identify Customer or any individual user. As between the Parties, Unmeshed retains all right, title, and interest in Usage Data.
2. Professional Services
2.1 Statements of Work
The Parties may enter into one or more Statements of Work for Professional Services. Unmeshed will provide the Professional Services described in the applicable Statement of Work, subject to this Agreement and the fees, schedule, deliverables, assumptions, and other terms stated in that Statement of Work.
2.2 Changes
Either Party may request changes to the Professional Services or an applicable Statement of Work. The Parties will review requested changes in good faith, including the expected impact on scope, timing, deliverables, resources, and fees. No change to Professional Services, deliverables, schedule, fees, or a Statement of Work will be effective unless documented in a written change order, amendment, or other modification signed by both Parties.
2.3 Customer Cooperation
Customer will provide timely access to the personnel, systems, environments, facilities, equipment, information, data, approvals, decisions, and cooperation reasonably needed for Unmeshed to perform the Professional Services. Customer will designate an appropriate project contact when reasonably requested, make qualified personnel available as needed, and provide complete and accurate information and Customer Data required for the Professional Services. Unmeshed is not responsible for delays, deficiencies, or failures in Professional Services to the extent caused by Customer's failure to provide required access, information, approvals, resources, or cooperation.
3. Term and Termination
3.1 Term
This Agreement begins on the effective date of the first Order Form, Statement of Work, online subscription, or other written agreement that references these Terms, or on the date Customer first accesses or uses the Services, whichever occurs first. Unless terminated earlier under this Section, this Agreement continues until the expiration or completion of the last active Order Form, Statement of Work, subscription, trial, or other authorized service term.
3.2 Termination for Cause
Either Party may terminate this Agreement, an Order Form, or a Statement of Work by written notice if the other Party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice describing the breach. If the breach cannot reasonably be cured, termination may be effective upon written notice. Either Party may also terminate this Agreement by written notice if the other Party becomes subject to receivership, liquidation, dissolution, an assignment for the benefit of creditors, or bankruptcy, insolvency, or similar proceedings that are not dismissed within sixty (60) days.
3.3 Termination for Convenience
Termination for convenience is permitted only to the extent expressly stated in the applicable Order Form or Statement of Work.
3.4 Effect of Termination
Upon expiration or termination of this Agreement or the applicable Services, Customer will stop using the terminated Services and, upon request, each Party will return or destroy the other Party's Confidential Information in accordance with Section 4. Termination or expiration does not relieve Customer of payment obligations that accrued before termination. If Unmeshed terminates this Agreement, an Order Form, or a Statement of Work due to Customer's uncured material breach, Customer will remain responsible for all fees due for the full term of the affected Order Form or Statement of Work. If Customer terminates this Agreement, an Order Form, or a Statement of Work due to Unmeshed's uncured material breach, Customer's sole monetary remedy will be a refund of prepaid, unused fees for the terminated Services.
3.5 Survival
Any provision that by its nature should survive expiration or termination will survive, including Sections 1.3, 1.4, 1.5, 1.6, 3.4, 3.5, 4, 5, 6, 7, and 8.
4. Confidentiality
During the term of this Agreement, either Party may disclose confidential or proprietary materials, data, business information, technical information, security information, product plans, documentation, credentials, configurations, or other non-public information to the other Party ("Confidential Information"). Confidential Information includes information identified as confidential at the time of disclosure, information that bears a similar legend or marking, and information that the receiving Party ("Receiving Party") reasonably should understand to be confidential given the nature of the information or the circumstances of disclosure. The Party disclosing Confidential Information is the "Disclosing Party." The Receiving Party will use Confidential Information only as necessary to perform or receive the Services, exercise rights, or fulfill obligations under this Agreement, and will disclose Confidential Information only to its affiliates, officers, directors, employees, contractors, subcontractors, agents, advisors, prospective financing sources, or prospective acquirers who need to know the information for purposes related to this Agreement and are bound by written obligations designed to protect the Confidential Information. The obligations in this Section do not apply to information that: (a) becomes generally available to the public without breach of this Agreement; (b) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; (c) is received from a third party without restriction and without breach of any duty owed to the Disclosing Party; or (d) was lawfully known to or possessed by the Receiving Party before disclosure by the Disclosing Party. If the Receiving Party is legally compelled to disclose Confidential Information, it will provide prior notice to the Disclosing Party to the extent legally permitted and reasonable assistance, at the Disclosing Party's expense, if the Disclosing Party wishes to contest or limit the disclosure. In any event, the Receiving Party will disclose only the portion of Confidential Information that its counsel determines is legally required. Upon the Disclosing Party's written request, the Receiving Party will destroy or return the Disclosing Party's Confidential Information in its possession or control, including copies and extracts, except that the Receiving Party may retain copies required by law or maintained in routine backup or archival systems, subject to the confidentiality obligations in this Agreement.
5. Indemnification
5.1 Indemnification by Customer
Customer will defend, indemnify, and hold harmless Unmeshed and its employees, directors, officers, affiliates, suppliers, licensors, subcontractors, agents, and representatives from and against any claims, damages, losses, liabilities, fines, penalties, costs, and expenses, including reasonable attorneys' fees, arising directly or indirectly from: (a) Customer's use or attempted use of the Site, Platform, or Services; (b) Customer's data, systems, workflows, configurations, instructions, materials, or other information provided to, connected to, or used with the Services; (c) Customer's breach of this Agreement, including Section 1.3 or Section 4; (d) Customer's violation of applicable law, including privacy, data protection, or export laws; or (e) any allegation that Customer's materials, instructions, configurations, or use of the Services infringes, misappropriates, or otherwise violates a third-party right.
5.2 Indemnification by Unmeshed
Unmeshed will defend, indemnify, and hold harmless Customer from and against any third-party claim alleging that the Services, when used by Customer as authorized under this Agreement, infringe or misappropriate that third party's intellectual property rights ("IP Claim"). If an IP Claim is made or appears reasonably likely, Unmeshed may, in its discretion: (i) secure the right for Customer to continue using the affected Services; (ii) modify the affected Services so they are no longer allegedly infringing; (iii) replace the affected Services with substantially similar functionality; or (iv) suspend or terminate the affected Services and refund prepaid, unused fees for the terminated portion. Unmeshed will not be responsible for an IP Claim to the extent it arises from Customer's data, systems, workflows, configurations, instructions, or materials; use of the Services with items not supplied by Unmeshed; Customer-requested designs or specifications; modifications not made by Unmeshed; use outside the scope of this Agreement, the applicable Order Form or Statement of Work, or the documentation; or Customer's failure to use an update, replacement, or modification provided by Unmeshed.
5.3 Notice of Claim and Indemnity Procedure
An indemnified Party must promptly notify the indemnifying Party of any claim for which it seeks indemnification, reasonably cooperate with the indemnifying Party, and allow the indemnifying Party to control the defense and settlement of the claim. The indemnified Party may participate in the defense with its own counsel at its own expense. The indemnifying Party may not settle a claim in a way that requires the indemnified Party to admit fault, pay amounts not covered by the indemnity, or accept ongoing non-monetary obligations without the indemnified Party's prior written consent, not to be unreasonably withheld. This Section sets out the exclusive remedy for claims covered by these indemnification obligations.
6. Warranty
For purposes of this Section, "Documentation" means Unmeshed's then-current technical documentation for the applicable Services, but excludes marketing materials, blog posts, sales materials, non-production examples, roadmap statements, previews, beta features, and general descriptions on the Site unless expressly incorporated into an applicable Order Form or Statement of Work.
6.1 Hosted Services Warranty
The Hosted Services, when used by Customer in accordance with this Agreement and the applicable Documentation, will perform in accordance with the applicable Documentation in all material respects.
6.2 Customer-Hosted Services Warranty
The Customer-Hosted Services, when used by Customer in accordance with this Agreement and the applicable Documentation, will perform in accordance with the applicable Documentation in all material respects. Customer is responsible for the deployment, operation, infrastructure, environment, security, networking, availability, configuration, dependencies, and other customer-managed components used to run the Customer-Hosted Services, except to the extent expressly stated otherwise in an applicable Order Form or Statement of Work.
6.3 Professional Services Warranty
For a period of thirty (30) days from the date of delivery of any Professional Services, Unmeshed represents and warrants that the Professional Services will be performed in a professional and workmanlike manner and in material conformity with any requirements expressly stated in the applicable Statement of Work.
6.4 Access Authority
If the Professional Services include Unmeshed's access to, or analysis of, any data, information, computer, computer network, communications network, system, software, or equipment, Customer represents and warrants that Customer has, or will obtain before commencement of such Professional Services, all rights, licenses, permissions, and consents required to authorize Unmeshed to perform the Professional Services.
6.5 Exclusive Remedies
Customer must notify Unmeshed of any alleged breach of warranty under this Section within a reasonable time after Customer becomes aware of the issue. For Hosted Services or Customer-Hosted Services that do not materially conform to the applicable Documentation, Customer's sole and exclusive remedy, and Unmeshed's entire liability, will be for Unmeshed to use commercially reasonable efforts to correct the material non-conformance. If Unmeshed is unable to correct the material non-conformance within a reasonable time, Customer's sole remedy will be a refund of the fees paid for the affected nonconforming Hosted Services or Customer-Hosted Services for the period during which the material non-conformance existed. For Professional Services that do not conform to the warranty in this Section, Customer's sole and exclusive remedy, and Unmeshed's entire liability, will be for Unmeshed to re-perform the nonconforming Professional Services. If Unmeshed is unable to re-perform the nonconforming Professional Services within a reasonable time, Customer's sole remedy will be a refund of the fees paid for the relevant nonconforming Professional Services.
6.6 Disclaimer of Warranty
Unmeshed does not represent or warrant that the Services will be uninterrupted, error-free, secure, timely, or free from all defects, or that all errors will be corrected. Except to the extent expressly stated in the applicable Documentation, Order Form, or Statement of Work, Unmeshed does not represent or warrant that the Services or any results, outputs, data, content, workflows, integrations, or other materials generated, processed, or made available through the Services will be accurate, reliable, complete, current, or suitable for Customer's particular needs. Unmeshed does not warrant that the Services will operate with any third-party hardware, software, systems, services, data, or materials, except to the extent expressly stated in the applicable Documentation, Order Form, or Statement of Work. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNMESHED DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING, COURSE OF PERFORMANCE, SECURITY, ACCURACY, QUALITY, CURRENCY, COMPLETENESS, OR USEFULNESS. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY UNMESHED WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT, AN APPLICABLE ORDER FORM, OR AN APPLICABLE STATEMENT OF WORK. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to Customer.
7. Limitations of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, NEITHER UNMESHED NOR CUSTOMER, INCLUDING THEIR RESPECTIVE SUPPLIERS, LICENSORS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES, WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, THE SITE, PLATFORM, SERVICES, OR RELATED TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THE PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO UNMESHED FOR THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS BEFORE THE ACT GIVING RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. Miscellaneous
This Agreement is governed solely by the laws of the State of Washington, without regard to conflict of law rules, and the state and federal courts located in King County, Washington will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Nothing in this Agreement creates any agency, employment, fiduciary, franchise, joint venture, or partnership relationship between Customer and Unmeshed, and neither Party may bind the other without written authorization. Customer may not assign or transfer this Agreement or any rights or obligations under it without Unmeshed's prior written consent. Unmeshed may assign or transfer this Agreement in connection with a merger, acquisition, corporate reorganization, change of control, or sale of all or substantially all of its assets. Neither Party will be liable for delay or failure to perform caused by events beyond its reasonable control, but Customer remains responsible for payment obligations for Services already provided. Each Party will comply with applicable export control, sanctions, and trade compliance laws, and Customer will not permit access to or use of the Services where prohibited by such laws. Notices must be in writing and delivered to the addresses stated in the applicable Order Form or Statement of Work, or to any updated address provided by notice; copies of notices to Unmeshed may be sent to [email protected]. Unmeshed may use subcontractors and service providers to provide or support the Services, provided that Unmeshed remains responsible for their performance under this Agreement. Unmeshed may identify Customer as an Unmeshed customer in customer lists and marketing materials unless Customer notifies Unmeshed in writing that it does not permit such use. Unmeshed may update these Terms by posting an updated version on the Site or by providing other reasonable notice, provided that changes will not materially reduce Customer's rights under an active Order Form or Statement of Work unless required by law or agreed by the Parties. This Agreement is the complete agreement between the Parties regarding its subject matter and supersedes any prior online, click-through, or website terms for the Services, as well as all prior or contemporaneous communications and understandings regarding that subject matter, except for any Order Form or Statement of Work signed by the Parties. Any waiver or modification must be in writing and signed by both Parties, except as expressly provided in this Agreement.