Starfish ETL, LLC
SUBSCRIPTION LICENSE AND SERVICES AGREEMENT
IMPORTANT - READ
This Click-Through Subscription License and Services
Agreement (the "Agreement") contains the terms and conditions upon which
Starfish ETL, LLC ("Starfish ETL") provides data migration services to Licensee
as of the Effective Date. By clicking "I AGREE," you acknowledge that you have
read and accept the terms and conditions of this Agreement in its entirety.
IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE
OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT
CONTRACTOR, THEN THE TERM "LlCENSEE" INCLUDES YOUR EMPLOYER OR PRINCIPAL
CONTRACTOR, AS APPLICABLE, AND YOU WARRANT AND REPRESENT TO STARFISH ETL, THAT
YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON SUCH EMPLOYER'S OR PRINCIPAL
means any written modification to this Agreement executed by Licensee and specifying
additional services to be provided by Starfish ETL to Licensee beyond those
selected by Licensee on the Order Form.
means any entity, directly or indirectly, controlling, controlled by, or under
common control with, Starfish ETL.
Users" means: (i) Licensee's employees; and (ii) contractors authorized
by Licensee to access the Subscription Software who, prior to obtaining access
to the Subscription Software, have registered in the database with a unique
User ID and a unique password.
Services" means services in a testing mode that may be offered to
Licensee for evaluation purposes as described in Section 4.
Information" means non-public information that is identified as or
would be reasonably understood to be confidential and/or proprietary.
Confidential Information of Starfish ETL includes, without limitation, the
Documentation and the Subscription Software, including any software code and
all algorithms, methods, techniques, and processes revealed or utilized therein.
Confidential Information of Licensee includes Licensee Data. Confidential
Information does not include information that: (i) is or becomes known to the
public without fault or breach of the Recipient; (ii) the Discloser regularly
discloses to third parties without restriction on disclosure; (iii) the
Recipient obtains from a third party without restriction on disclosure and
without breach of a non-disclosure obligation known to Recipient; or (iv) is
independently developed by the Recipient without use of Confidential
"Discloser" means the party providing Confidential
Information to the Recipient.
means the then-current Starfish ETL-provided documentation relating to the
features, functions, and use of the Subscription Software.
Date" for the "Free Trial Period" means the date on which the Licensee
clicks on the "I AGREE" button for this Agreement, and "Effective Date"
for all other data migration Subscription Services means the date on which
payment is received for the level of service selected on the Order Form.
"Free Trial" refers to the option on the Starfish ETL
websites, or websites of other entities offering the Starfish data migration
services, for the Licensee to evaluate the data migration Subscription Software
at no charge to Licensee by applying it to a sample of Licensee's data.
Period" means the 15-day period during which the Free Trial option
may be used by Licensee.
Property Rights" means any and all rights in patents, copyrights,
trademarks and service marks.
"Licensee Data" means information provided, entered or
uploaded for use by or with the Subscription Software by the Licensee or its
Metadata" means the mapping rules, connectors, or jobs developed by
Starfish ETL that are unique to Licensee and that are used to accomplish the
data migration Subscription Services.
Restriction" means any limitation on the use of the Subscription Software
identified in any Addendum to this agreement executed by Licensee and Starfish
ETL, such as the number of Authorized Users, locations, or connections.
Form" means the selection form contained on the Starfish ETL websites, or
websites of other entities offering the Starfish data migration services, whereby
Licensee selects the level of data migration services.
Information" means information provided to Starfish ETL by or at the
direction of Licensee, or to which access was provided to Starfish ETL in the
course of Starfish ETL's performance under this Agreement that: (i) identifies
or can be used to identify an individual (including, without limitation, names,
signatures, addresses, telephone numbers, e-mail addresses and other unique
identifiers); or (ii) can be used to authenticate an individual (including,
without limitation, employee identification numbers, government-issued
identification numbers, passwords or PINs, financial account numbers, credit
report information, biometric or health data, answers to security questions,
and other personal identifiers). Personal Information shall include any
non-public personal information regarding any individual that is subject to
applicable national, state, regional, and/or local laws and regulations
governing the privacy, security, confidentiality and protection of non-public
means the party receiving Confidential Information of the Discloser.
Knowledge" shall mean ideas, concepts, know-how or techniques related
to the Discloser's technology and Confidential Information that are retained in
the unaided memories of the Recipient who had rightful access to Confidential
Level Description" means the Service Level Description document included
as part of any Addendum that describes additional Subscription Services beyond
the level of service selected by Licensee on the Order Form.
"Subscription Fees" means the fees for the Subscription Services
referenced in Section 3(a) of this Agreement.
Services" means the Subscription Software-related data migration
services and Support (as defined in Section 3(b)) that Starfish ETL provides
Licensee under this Agreement.
Software" means collectively or individually the computer software
programs for which Starfish ETL is providing the data migration Subscription
Term" means the 30-day period following the Effective Date for the
Party Licensor" means a third party whose software products have been
made available to Starfish ETL for distribution and/or licensing under the
terms of its agreement with Starfish ETL (a "Third Party Agreement").
means generally available updates, enhancements or modifications to the
then-current, general release version of the Subscription Software that are not
separately priced or licensed as new products.
ID" means a unique user identification credential used in combination
with a unique password to access the Subscription Services.
License. Subject to the terms and conditions of this
Agreement, Starfish ETL hereby grants to Licensee a non-exclusive,
non-transferable, limited license (without the right to sublease or sublicense)
to access and use the Subscription Software and the Subscription Services,
during the Subscription Term, in an operating environment hosted by Starfish
ETL, for Licensee's own internal use for the purpose of migrating Licensee Data
from one customer data source to another customer data source. If
Licensee has selected on the Order Form only the Free Trial as its level of
service, Starfish ETL grants to such Licensee a non-exclusive,
non-transferable, limited license (without the right to sublease or sublicense)
to access and use the Subscription Software and the Subscription Services,
during the Free Trial Period only, for Licensee's own internal use for the purpose
of migrating a sample of Licensee Data from one data source to another data
source. Licensee grants Starfish ETL, its Affiliates and applicable
contractors a worldwide, limited-term license to host, copy, transmit and
display Licensee Data, and any Non-Starfish ETL applications and program code
created by or for Licensee using a Service or for use by Licensee with the
Services, as reasonably necessary for Starfish ETL to provide the Subscription
Services in accordance with this Agreement. Subject to the limited licenses
granted herein, Starfish ETL acquires no right, title or interest from Licensee
or its licensors under this Agreement in or to any Licensee Data, Non-Starfish
ETL application or such program code. Licensee grants to Starfish ETL and its
Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and
incorporate into Starfish ETL's and its Affiliates' services any suggestion,
enhancement request, recommendation, correction or other feedback provided by
Licensee or users relating to the operation of such services.
Any rights not expressly granted in this Agreement are expressly
Licensee may make a reasonable number of copies of the Documentation for the
Subscription Software for its internal use in accordance with the terms of this
Restriction. Licensee's use of the Subscription Software and Subscription
Services is subject to any License Restriction specified in any Addendum.
Restrictions on Use of the Subscription Software and Subscription Services.
Licensee is prohibited from causing or permitting the reverse engineering,
disassembly or de-compilation of the Subscription Software. Except as
expressly provided by this Agreement, Licensee is prohibited from using the
Subscription Software to provide service bureau services to third parties.
Licensee will not allow the Subscription Software to be used by, or disclose
all or any part of the Subscription Software to, any person except Authorized
Users. Licensee acknowledges and agrees that U.S. export control laws and
other applicable export and import laws govern its use of the Subscription
Software, and Licensee will neither export or re-export, directly or
indirectly, the Subscription Software, nor any direct product thereof in
violation of such laws, or use the Subscription Software for any purpose
prohibited by such laws.
Property Rights Notices. Licensee is prohibited from removing or altering
any of the Intellectual Property Rights notice(s) embedded in the Subscription
Software or that Starfish ETL otherwise provides with the Subscription
Services. Licensee must reproduce the unaltered Intellectual Property Rights
notice(s) in any full or partial copies that Licensee makes of the
Use of the Subscription Software and Subscription Services does not grant any
ownership rights in or to the Subscription Software, the Subscription Services,
the Documentation, or Metadata. Licensee Data shall be the sole property of
Licensee; however, Starfish ETL may aggregate anonymous statistical data
regarding use and functioning of its system by its various licensees, and all
such data (none of which shall be considered Licensee Data), will be the sole
property of Starfish ETL.
Environment. Starfish ETL will provide the data migration hosting
environment, including the hardware, equipment, and systems software
configuration on which Starfish ETL supports use of the Subscription Software
and Subscription Services, on servers located at a facility selected by Starfish
Starfish ETL shall (a) provide Licensee with access (via the internet,
telephone or other means established by Starfish ETL) to Starfish ETL's support
helpline, (b) install, when and if generally available, Updates; and (c) use
reasonable efforts to correct or circumvent any material deviation between the
then-current, general release version of the Subscription Software and its
Documentation (the foregoing referred to collectively as "Support"). Support
is included in the Subscription Fee.
Accounts. Licensee is responsible for maintaining its own Authorized User
User IDs and passwords. Licensee is responsible for maintaining the
confidentiality of Licensee's User IDs and passwords and shall cause its
Authorized Users to maintain the confidentiality of their User IDs and
Passwords. Licensee is responsible for all uses of and activities undertaken
with User IDs registered on Licensee's account. Licensee agrees to immediately
notify Starfish ETL of any unauthorized use of Licensee's User IDs of which
Licensee becomes aware.
Starfish ETL will be responsible for maintaining connectivity from its network
to the Internet that is capable of servicing the relevant Internet traffic to
and from the Licensee's environment. Licensee is responsible for providing
connectivity to the Internet for itself, its Authorized Users, and the data
sources from which and to which Licensee's data is being migrated. Licensee
shall also be responsible for ensuring that latency and available bandwidth
from the user's desktop to Starfish ETL's hosted routers is adequate to meet
Licensee's desired level of performance. If Licensee requires a VPN or private
network connection to the Subscription Services, Licensee is responsible for
all costs associated with any specialized network connectivity required by
Starfish ETL shall have no obligation to correct a problem caused by
Licensee's negligence, Licensee's equipment malfunction or other causes beyond
the control of Starfish ETL.
Usage Limits. Subscription Services are subject to usage limits,
including, for example, the quantities specified in Order Forms and any
applicable Addendum as to the number of users and the quantity of data to be
migrated. With regard to users, a User's password may not be shared with any
other individual, and except as set forth in an Order Form, a User
identification may only be reassigned to a new individual replacing one who
will no longer access the Subscription Software. With regard to the Free
Trial, Licensee is bound by the scope of the sample of data to be migrated as
defined on the Order Form. If Licensee exceeds a contractual usage limit,
Starfish ETL may work with Licensee to seek to reduce usage so that it conforms
to that limit. If, notwithstanding such efforts, Licensee is unable or
unwilling to abide by a contractual usage limit, Licensee will execute an Order
Form for additional quantities of the applicable number of users or the amount
of data promptly upon Starfish ETL's request, and/or pay any invoice for excess
Personnel. Starfish ETL will be responsible for the performance of its
personnel (including its employees and contractors) and their compliance with
Starfish ETL's obligations under this Agreement, except as otherwise specified
Beta Services. Starfish ETL in its sole discretion may
make Beta Services available to Licensee at no charge. Licensee may choose in
its sole discretion to try such Beta Services. Beta Services are intended for
evaluation purposes and not for production use, are not supported, and may be
subject to additional terms. Beta Services are not considered "Subscription Services"
under this Agreement. Nevertheless, all restrictions, and Licensee's
obligations concerning the Services other than the Payment obligations in Section
5, shall apply equally to Licensee's use of Beta Services. Unless otherwise
stated, any Beta Services trial period will expire when the trial ends. Starfish
ETL may discontinue Beta Services at any time in its sole discretion and may
never make them generally available. Starfish will have no liability for any
harm or damage arising out of or in connection with any Beta Service.
Payment and Taxes.
Licensee shall pay Starfish ETL Subscription Fees in the full amount specified
for the level of service chosen by Licensee on the Order Form. Except as
otherwise set forth in this Agreement, Subscription Fees are non-refundable.
Starfish ETL's 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"). Licensee is responsible for paying all Taxes
associated with Licensee's purchases hereunder. If Starfish ETL has the legal
obligation to pay or collect Taxes for which Licensee is responsible under this
Section 6b, Starfish ETL will specify the amount of such Taxes and will require
payment of such Taxes at the same time that the Subscription Fees are paid unless
Licensee provides Starfish with a tax exemption certificate authorized by the
appropriate taxing authority. Starfish ETL is solely responsible for taxes
assessable against it based on its income, property and employees.
Limited Warranties, Disclaimer of Warranties, and Remedies.
to Grant License. Starfish ETL warrants that that it owns all right, title
and interest in and to the Subscription Software or has obtained rights in such
Subscription Software sufficient to grant the licenses granted to Licensee
under this Agreement. Licensee's exclusive remedy, and Starfish ETL's
exclusive obligation, for a breach of this warranty is set forth in Section 8
Services Warranty and Remedy for Breach. Starfish ETL warrants to Licensee
that Starfish ETL will render the Subscription Services with commercially
reasonable care and skill. Starfish ETL further warrants that for a period of
15 days from the Free Trial Effective Date for Free Trial Licensees and for a
period of 30 days from the Effective Date for all other Licensees (i) the media
on which the Licensed Software is furnished shall be free from defects in
materials and workmanship under normal use; and (ii) the Licensed Software will
perform substantially in accordance with Starfish ETL's Documentation
accompanying the Licensed Software. Starfish ETL's sole obligation with
respect to a breach of the foregoing warranty shall be to repair or replace the
Subscription Software giving rise to the breach of warranty. The remedies in
this Section 6(b) are exclusive and in lieu of all other remedies, and
represent Starfish ETL's sole obligations for a breach of the foregoing
warranties. Licensee must provide notice to Starfish ETL of any warranty claim
within the warranty period.
Code. Starfish ETL represents that is has used commercially reasonable
best efforts utilizing generally accepted industry tools and practices to
provide Subscription Software that does not contain any "time bombs," "worms,"
"viruses," "Trojan horses," "protect codes," "data destruct keys," or other
programming devices that are intended to access, modify, delete, damage,
deactivate or disable the Subscription Services ("Malicious Code"). As
Licensee's sole remedy for breach of this representation, Starfish ETL shall
take action immediately to investigate, identify and remove such Malicious Code
from the Subscription Software.
of Warranties. The limited warranties in this Section 6 are made to
Licensee exclusively and are in lieu of all other warranties. STARFISH ETL MAKES
NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE
SUBSCRIPTION SOFTWARE AND SUBSCRIPTION SERVICES PROVIDED UNDER THIS AGREEMENT
IN WHOLE OR IN PART. STARFISH ETL EXPLICITLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. STARFISH ETL EXPRESSLY
DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICES, IN
WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET
of Limited Warranty. Starfish ETL will have no obligation under this
Section 6 to the extent that any alleged breach of warranty is caused by any
modification of the Subscription Software not performed by or on behalf of Starfish
ETL. To the extent that an alleged breach of warranty concerns a Third Party
Product that is subject to a more limited warranty under a Third Party
Agreement than specified in this Section 6, Starfish ETL's obligations
hereunder will be further limited accordingly.
Failure of Essential Purpose. THE PARTIES HAVE AGREED THAT THE
LIMITATIONS SPECIFIED IN SECTIONS 6 AND 16 WILL SURVIVE AND APPLY EVEN IF ANY
REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY SUBSCRIPTION
SOFTWARE OR SUBSCRIPTION SERVICE UNDER THIS AGREEMENT.
SOLUTIONS. THE SUSBSCRIPTION SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT
DESIGNED, MANUFACTURED OR INTENDED FOR USE AS A FAULT-TOLERANT SOLUTION. ACCORDINGLY,
STARFISH ETL DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH
SOLUTIONS. LICENSEE AGREES THAT STARFISH ETL SHALL NOT BE LIABLE FOR ANY
CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SUBSCRIPTION
SOFTWARE IN SUCH APPLICATIONS.
The Confidential Information disclosed under this Agreement may be used,
disclosed or reproduced only to the extent necessary to further and fulfill the
purposes of this Agreement. Except as otherwise permitted under this
Agreement, the Recipient will not knowingly disclose to any third party, or
make any use of the Discloser's Confidential Information. The Recipient will
use at least the same standard of care to maintain the confidentiality of the
Discloser's Confidential Information that it uses to maintain the
confidentiality of its own Confidential Information, but in no event less than
reasonable care. The non-disclosure and non-use obligations of this Agreement
will remain in full force with respect to each item of Confidential Information
for a period of ten (10) years after Recipient's receipt of that item;
provided, however, that Licensee's obligations to maintain the Subscription
Software and Documentation as confidential will survive in perpetuity. Each of
Licensee and Starfish ETL shall be shall be responsible for the breach of the
confidentiality terms contained in this Section 7 by any of its directors,
officers, employees, Authorized Users, agents, accountants and advisors.
Notwithstanding the foregoing, this Section is not intended to prevent (a) a
Recipient from using Residual Knowledge, subject to any Intellectual Property
Rights of the Discloser, or (b) Starfish ETL from using aggregated data
regarding the use of the Subscription Services to provide reports or analytics
to Licensee or to improve the performance of Starfish ETL's products, provided
such data does not contain any Personal Information regarding Licensee, its
employees, customers or Authorized Users. If the Recipient should receive any
legal request or process in any form seeking disclosure of Discloser's
Confidential Information, including User IDs or passwords, or if the Recipient
should be advised by counsel of any obligation to disclose such Confidential
Information, the Recipient shall (if allowed by law) provide the Discloser with
prompt notice of such request or advice so that the Discloser, at the
Discloser's sole expense, may seek a protective order or pursue other
appropriate assurance of the confidential treatment of the Confidential
Information. Regardless of whether a protective order or other assurance is obtained,
the Recipient shall furnish only that portion of the Discloser's Confidential
Information which is legally required to be furnished and to cooperate with any
reasonable efforts by the Discloser to assure that the information is
maintained in confidence by the party to whom it is furnished. Starfish ETL
may use Licensee's name and logo for marketing purposes in a list of customers
using the Subscription Services.
Incident Response. In the event that Starfish ETL becomes aware that the
security of any Licensee Data or Personal Information has been compromised, or
that such Licensee Data or Personal Information has been or is reasonably
expected to be subject to a use or disclosure not authorized by this Agreement
(an "Information Security Incident"), Starfish ETL shall: (i) promptly (and in
any event within 24 hours of becoming aware of such Information Security
Incident), notify Licensee, via the email address of the person whose email
address was used in connection with purchasing Subscription Services, of the
occurrence of such Information Security Incident; (ii) investigate such
Information Security Incident and conduct a reasonable analysis of the cause(s)
of such Information Security Incident; (iii) provide periodic updates of any
ongoing investigation to Licensee; (iv) develop and implement an appropriate
plan to remediate the cause of such Information Security Incident to the extent
such cause is within Starfish ETL's control; and (v) cooperate with Licensee's
reasonable investigation or Licensee's efforts to comply with any notification
or other regulatory requirements applicable to such Information Security
Indemnification. Starfish ETL represents that
it has the right to grant to Licensee the license to use the Subscription
Software as set forth in this Agreement without violating any rights of any
third party and that there is no actual or threatened suit by any third party
based on an alleged violation of such right by Starfish ETL Starfish ETL will
defend, indemnify and hold Licensee harmless from any third party claim that
the Subscription Software infringes any copyright, trademark or trade secret
owned or controlled by the third party; provided, however, that (i) Starfish
ETL shall be notified promptly in writing by Licensee of any such claim; (ii)
Starfish ETL shall have sole control of the defense of any action on such claim
and all negotiations for its settlement or compromise; (iii) Licensee shall
cooperate with Starfish ETL, at Starfish ETL's expense, in a reasonable way to
facilitate the settlement or defense of such claim; (iv) such claim does not
arise from Licensee's modifications not authorized by Starfish ETL; and (v)
should the Subscription Software become, or in Starfish ETL's opinion likely to
become, subject to such claim of infringement, then Licensee shall permit
Starfish ETL, at Starfish ETL's option and expense, either (a) to procure for
Licensee the right to continue using the Subscription Software, or (b) to
replace or modify the Subscription Software so that it becomes noninfringing
and performs in a substantially similar manner to the original product, or (c)
upon failure of (a) or (b), despite the reasonable efforts of Starfish ETL, to terminate
this Agreement and return the fee paid by Licensee for the Subscription
Services. THE FOREGOING SETS FORTH STARFISH ETL'S EXCLUSIVE OBLIGATION AND
LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Term and Termination.
The Subscription Term for the Subscription Services other than the Free Trial shall
be 30 days from the Effective Date for data migration Subscription Services.
The Subscription Term for the Free Trial shall be 15 days from the Effective
Date of the Free Trial Period. The Subscription Term for data migration
Subscription Services other than the Free Trial may be extended for additional 30-day
periods upon payment of renewal fees as specified on the Starfish ETL websites
or the websites of other entities offering the Starfish ETL data migration
services. Unless the Subscription Term is extended by payment of a renewal
fee, the Subscription Services shall terminate upon the expiration of the
Subscription Term. The Subscription Term cannot be terminated prior to its
of Termination. Upon termination of the Subscription Services, Licensee's
license to access and use the Subscription Software and Subscription Services
shall immediately terminate. Termination of this Agreement will be without
prejudice to the parties' other rights and remedies pursuant to this Agreement,
unless otherwise expressly stated herein.
of Licensee Metadata. Metadata shall be the sole property of Starfish
ETL. Upon termination or expiration of this Agreement, Starfish ETL shall
retain Licensee Metadata for a period of two years.
of Obligations. All obligations relating to non-use and non-disclosure of
Confidential Information, limitation of liability, and such other terms which
by their nature survive termination, will survive termination or expiration of
All notices and other communications required or permitted under this
Agreement must be in writing and will be deemed given when: delivered
personally; sent by registered or certified mail, return receipt requested;
transmitted by facsimile confirmed by first class mail; by email: or sent by
Support. Starfish ETL provides technical support for
the Subscription Software under the terms specified at the Starfish ETL
technical support webpage.
Force Majeure. Except with respect to the payment of
fees hereunder, neither party will be liable to the other for any failure or
delay in performance under this Agreement if such failure or delay is the
result of circumstances beyond its reasonable control, including, without
limitation, an act of God, such as earthquake, hurricane, tornado, flooding, or
other natural disaster, or in the case of war, action of foreign enemies,
terrorist activities, labor dispute or strike, government sanction, blockage,
embargo, failure of electrical service, omissions and defaults of third parties
and official, governmental and judicial action not the fault of the party
failing or delaying in performance, or the threat of any of the foregoing.
This Agreement shall inure to the benefit of, and is freely assignable to,
Starfish ETL's successors and assignees of rights in the Subscription Software.
Licensee may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of Starfish ETL, whether by
operation of law or otherwise, including in connection with a change in
control, merger, acquisition, consolidation, asset sale or other
reorganization, and any attempt at such assignment or transfer will be void.
Waiver. The waiver or failure of Starfish ETL to exercise in any
respect any right provided for in this Agreement shall not be deemed a waiver
of any further or future right under this Agreement.
This Agreement and all disputes and causes of action arising from or related to
this Agreement will be exclusively governed by and construed in accordance with
the laws of the State of Illinois (exclusive of its conflicts of law
principles). This Agreement shall be deemed made in Cook County, Illinois, and
Licensee and Starfish ETL agree that any suit, action or proceeding brought by
either party against the other in connection with or arising from this
Agreement shall be brought solely in the state or federal courts situated in
Cook County, Illinois, and each party expressly consents to the jurisdiction
and venue of each such court.
LIMITATIONS OF LIABILITY.
LIABILITY OF STARFISH ETL. EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY
INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, THE TOTAL LIABILITY OF STARFISH
ETL, ITS AFFILIATES AND THIRD PARTY LICENSORS IN CONNECTION WITH OR RELATED TO THE SUBSCRIPTION SOFTWARE,
THE SUBSCRIPTION SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT
(WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL not EXCEED THE SUBSCRIPTION
FEEs PAID OR PAYABLE TO Starfish ETL HEREUNDER.
OF DAMAGES. IN NO EVENT WILL Starfish
ETL, ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL,
PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST
PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER Starfish ETL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
If any of the terms, or portions thereof, of this Agreement are invalid or
unenforceable under any applicable statute or rule of law, the court shall
reform the contract to include an enforceable term as close to the intent of
the original term as possible; all other terms shall remain unchanged.
with Laws. Licensee will comply with all laws, rules and regulations
applicable to the use of the Subscription Software and the Subscription
Services including, without limitation, by not migrating any Licensee Data that
is illegal, defamatory, or that infringes any third party proprietary rights.
By accepting this agreement and in return for use of StarfishETL’s Beta Services,
Free Trial, or Subscription Services, Authorized Users grant Starfish the right to communicate
with Authorized Users using personal information by any means available for the purpose of
providing support, service announcements, or other information, including, but not limited to,
tips and tricks, other uses, newsletters, or blog articles.
Whole Agreement. This Agreement and any applicable
Order Form and Addendum constitutes the entire agreement between Licensee and Starfish
ETL relating to the subject matter hereof, and supersede and extinguish all
prior oral and written communications between the parties about this
Agreement's subject matter. Any Order Form or Addendum which may be executed
in connection with this Agreement or the Subscription Services does not modify,
supplement or add terms to this Agreement. Any additions to, or modifications
of, this Agreement shall be binding upon the parties only if the same shall be
in writing and duly executed by Licensee and by a duly authorized
representative of Starfish ETL. Licensee agrees that its purchases pursuant to
this Agreement are not contingent on the delivery of any future functionality
or features, or dependent on any oral or written public comments made by
Starfish ETL regarding future functionality or features.