These license terms (“Terms”), as updated from time to time, become automatically binding on you when you access any services (including any software and/or related documents) or download any software (and/or related documents) from this website. They create a legal agreement between you (Customer or you) and Astronomer, Inc. of 50 West 23rd Street, Suite 1400 New York, NY 10010 (Astronomer, we or us) for the services that you access and/or any software that you download (”License”).
These Terms supersede any other agreement (including any click-through or electronic agreements) between Astronomer and Customer with respect to the Solution (as defined below). These Terms will prevail over any Order Form (as defined below), unless an Order Form expressly states that it varies one or more terms of these Terms. Any modification will apply only to that Order Form.
1. DEFINITIONS
“Affiliate” means any entity that Customer, directly or indirectly, controls; an entity that controls Customer; or an entity that is under common control with Customer. For purposes of this provision, “control” means ownership, directly or indirectly, of at least 51% of the equity securities or equity interests of such entity.
“Customer Data” means all data, records, files, information, and content uploaded by or on behalf of Customer to the Software Service.
“Documentation” means the online documentation and user guides provided by Astronomer in the following link: https://www.astronomer.io/docs/astro.
“Downloadable Software” means the software products listed in the Order Form which Astronomer will make available to Customer in downloadable form to be run by Customer in Customer-controlled environments during the Subscription Term.
“Fees” means the fees payable by the Customer to Astronomer for the Solution, as set out in the Order Form and varied in accordance with these Terms.
“Hosted Software” means the software products listed in the Order Form which Astronomer will make available to Customer in SaaS form to be accessed and used by the Customer during the Subscription Term.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighboring and related rights, all other rights in the nature of copyright, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order Form” means an order form, a statement of work, or another similar document, executed on behalf of each of the parties, which describes the Solution, the level of Support, any Professional Services, the Term, and the Fees.
“Professional Services” means professional consulting purchased by Customer pursuant to the applicable Order Form and relating to training and assistance with installation, deployment, or usage of the Service.
“Software Service” means Astronomer’s proprietary software products listed in the Order Form, whether made available as Hosted Software or Downloadable Software, Support, and the Documentation.
“Solution” means the Software Service and Support listed in the Order Form, together with the Documentation.
“Subscription” means the Customer’s right to access and use the Solution in accordance with the relevant Order Form and these Terms.
“Subscription Limit” means any limits on the Customer’s use of the Solution which are stated in the Order Form, including any use in specified environments and any consumption limits.
“Term” means the term of the Subscription as set forth in the Order Form and any renewal term, unless terminated sooner in accordance with these Terms.
“Support” means the maintenance and support services to be provided by Astronomer to the Customer at the level specified in the Order Form.
“Users” means those of the Customer’s employees and contractors who are authorised by Customer to access and use the Solution.
2. LICENSE GRANT.
Subject to these Terms, Astronomer grants the Customer, for the Term, a non-exclusive, non-transferable, non-sublicensable license to: (i) download, install, host and/or run, where the Software Service is made available as Downloadable Software; and (ii) access and use, where the Software Service is made available as Hosted Software, the Software Service subject to the Subscription Limits, for its own internal business use and for the purpose described in the Documentation. Astronomer will provide Customer with Support and/or Professional Services as set forth in the Order Form.
3. CUSTOMER RESPONSIBILITIES AND ASTRONOMER’S RIGHTS
3.1. Customer Responsibilities. Customer shall be responsible for obtaining, paying for, maintaining, and securing any equipment, facilities, and/or cloud services needed for Customer to: (i) where the Software Service is made available as Downloadable Software, to download, install, host and/or run the Downloadable Software; or (ii) if the Software Service is made available as Hosted Software, to connect to the Software Service, and (iii) whether the Software Service is made available as Downloadable Software or Hosted Software, to upload the Customer Data to the Software Service and access and use the Solution, as specified in the applicable Documentation; and, if the Fees are based on Customer’s consumption of the Solution, Customer will provide such additional information and reporting as Astronomer reasonably requires from time to time in relation to Customer’s consumption.
3.2. Restrictions. Customer shall not and shall not permit any User or third party to, except as permitted under these Terms: (a) create accounts for, or access or use the Solution other than in accordance with the Documentation; (b) share account log in information relating to an individual User of the Solution; (c) exceed the Subscription Limit (if the Customer exceeds the Subscription Limit, Astronomer reserves the right to charge the Customer for additional fees payable in relation to such excess use as set forth in the Order Form); (d) attempt to copy (other than to the extent reasonably necessary for backup purposes where the Software is provided as Downloadable Software), modify, translate, create derivative works from, or distribute any part of the Solution; (e) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form any part of the Solution, except to the extent the law in Customer’s jurisdiction permits this for the purposes of integrating the operation of the Solution with the operation of other software or systems used by Customer. Before carrying out such action, Customer shall give Astronomer no less than 30 days’ written notice and the exception will not apply if Astronomer is prepared to carry out such action at a reasonable commercial fee or provides the information necessary to achieve such integration within a reasonable period; (f) access any part of the Solution in order to build a competing product or service; (g) use the Solution to provide services to third parties or allow third parties (other than Users and contracted employees) to access and/or use the Solution; (h) license, lease, transfer, assign, disclose, or otherwise commercially exploit the Solution; or (i) modify any proprietary rights notices that appear in the Solution.
3.3. Additional Restrictions for Hosted Software. Where Customer is using the Solution as Hosted Software, Customer shall not import or allow others to import into the Solution any: (a) trojan horse, worm, virus or other code which does not serve a legitimate purpose, and which is designed to be destructive, disabling or harmful or enables unauthorized access to, or disclosure or corruption of information or software; (b)data which it does not have the express permission to import into the Solution; (c) data which does not comply with any applicable laws, rules, regulations or good industry practice; or (d) content that violates a third party’s intellectual property rights.
3.4. Customer Use. Customer shall comply and shall procure that its Affiliates and Users comply with all applicable laws, rules, regulations applicable to their use of the Solution. Customer shall not use or allow others to use the Solution or store, transmit, make available or process any Customer Data: (a) for any illegal or fraudulent activity; (b) in a manner which violates the rights of others, including (without limitation) in a manner which misappropriates another person’s identity; (c) in a manner which threatens, incites, promotes, or actively encourages violence, terrorism, or other serious harm; (d) in a manner which promotes child sexual exploitation or abuse; or (e) in a manner which interferes with, disrupts or violates the security, integrity, or availability of the Solution and/or any other user, network, computer or communications system, software application, or network or computing device.
3.5. Suspension of Access. Astronomer shall be entitled to suspend Customer’s access and/or delete any Customer Data to the Software Service and/or license to use the Software Service immediately: (a) where Customer is in breach of sections 3.2, 3.3, 3.4 and/or the warranty in section 8; (b) where removal or blocking of the Customer Data is necessary to protect the security, or integrity of the Software Service, Astronomer, or any third party; or (c) in order to respond to law enforcement or any other governmental authority; and/or (d) if Customer has failed to pay the Fees due to Astronomer on the due date. Astronomer shall provide written notice of any action taken in accordance this section 3.5 as soon as possible unless prohibited by applicable law. Astronomer shall use reasonable endeavours to delete the offending Customer Data without suspending access to the Software Service. If access to the Software Service is suspended, Astronomer shall reinstate Customer’s access as soon as possible after the reason for suspension no longer applies.
3.6. Use by Affiliates and Users. Affiliates and Users may use the Solution for the same purposes permitted for Customer under section 3 provided that: (a) Affiliates and Users shall not be entitled to bring a claim against Astronomer; only Customer may bring actions against Astronomer for any losses, damages, costs, expenses or other liabilities suffered or incurred by any Affiliate or User and Customer shall procure that no Affiliate or User commences or maintains any claim against Astronomer for any matter arising in connection with these Terms or any Order Form (whether for breach of contract, in tort or any other legal theory); and (b) Customer shall procure that all Affiliates and Users comply with these Terms and shall remain liable for all acts and omissions of its Affiliates and Users.
4. CUSTOMER DATA, DATA SECURITY AND PROCESSING
4.1. Rights to use Customer Data. Customer grants Astronomer a non-exclusive license during the Subscription Term to use the Customer Data for the purpose of providing the Solution. Customer warrants and represents that it has all necessary rights and permissions to provide the Customer Data to Astronomer and to grant Astronomer the license in this section.
4.2. Security and Data Processing. The parties shall comply with the Security Addendum found at: https://www.astronomer.io/legal/security and, if applicable, the Data Processing Agreement found at: https://www.astronomer.io/legal/dpa.
4.3. Availability. Astronomer will comply with its availability policy at https://www.astronomer.io/legal/sla/.
5. EVALUATION USE.
Customer may receive access to the Software Service as a no-fee, trial, alpha, beta or early access offering (“Evaluation Software”). Unless otherwise agreed, use of the Evaluation Software is only for Customer’s internal evaluation for 30 days from the date Customer is first granted access to the Evaluation Software. Any results or projects generated by Customer using the Evaluation Software may only be used to evaluate the features and functions of the Evaluation Software and not used to make decisions on any Customer business issues. Upon conclusion of the evaluation, Customer shall cease use of and destroy all such results and projects unless Customer purchases the Software Service within three (3) months of access to the Evaluation Software ending. Astronomer shall be entitled to cancel Customer’s access to the Evaluation Software or modify the Evaluation Software at any time. No warranty, representation or guarantee is given by Astronomer in relation to the Evaluation Software and Astronomer shall not be obliged to provide Support in relation to the Evaluation Software. Customer agrees to provide feedback related to the Evaluation Software as reasonably requested by Astronomer. Customer grants to Astronomer, without charge, the fully paid-up, perpetual right to utilize such feedback for development of its business, products and services so long as such utilisation does not identify Customer as the source of the feedback. The Evaluation Software is subject to the terms of section 5 of these Terms. Other than for a breach of the Restrictions on Use, and subject to any Liability which cannot be excluded by law, each party’s liability in connection with Customer’s use of any Evaluation Software will be $25,000.
6. PROPRIETARY RIGHTS
6.1. Customer shall own and retain all rights, title, and interest in and to the Customer Data and all intellectual property rights related to the foregoing. Astronomer shall not use the Customer Data for any purpose other than as expressly permitted in this section 6.1. All rights not expressly granted in and to the Customer Data are reserved by Customer. Subject to these Terms, Customer hereby grants to Astronomer a non-exclusive, worldwide, royalty-free right to process the Customer Data as necessary to provide the Solution and Professional Services and to monitor, improve and enhance its products and services.
6.2. Astronomer and its licensors own and retain all rights, title, and interest in and to the Solution and the Documentation, including all improvements, enhancements, or modifications thereto and any software, applications, inventions, or other technology used in connection with providing the Solution and the Documentation, as well as any feedback provided by Customer or any of its Users in relation to the Solution. Customer hereby grants to Astronomer all intellectual and proprietary rights in any suggestions, enhancement requests, recommendations or other feedback provided by Customer and/or any of its Users relating to the Solution and/or the Professional Services, which Astronomer may use for any purpose.
6.3. Unless otherwise agreed in an Order Form, if Astronomer performs Professional Services (e.g., providing guidance on configuring the Software Service) it shall own and retain all rights, title and interest in and to anything it produces, develops or creates in the course of providing the Professional Services (“Products of the Professional Services”). Subject to these Terms, Astronomer hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable, worldwide license to use the Products of the Professional Services internally, solely in connection with such Customer’s use of the Solution, during the Subscription Term.
7. CONFIDENTIALITY
7.1. Confidential Information. “Confidential Information” means all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) relating to the Disclosing Party’s business (including, without limitation, trade secrets, computer software, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions whether patentable or not, and information about the Disclosing Party’s technology). Confidential Information does not include information that the Receiving Party can prove: (a) was generally available to the public through no improper action or inaction by the Receiving Party or its Affiliates or Representatives (as defined in section 7.3); (b) it knew or possessed without restriction prior to receiving the information from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party by a third party without breach of any confidentiality obligation; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
7.2. The Receiving Party must (a) protect and keep confidential the Disclosing Party’s Confidential Information in accordance with the standard that it applies to its own confidential information, but in any case not less than a reasonable standard; (b) not disclose the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s written consent except as permitted herein; and (c) only use the Disclosing Party’s Confidential Information in furtherance of its rights and obligations under these Terms and any Order Form.
7.3. The Receiving Party may disclose Confidential Information to any of the Receiving Party’s Affiliates, officers, employees, independent contractors, agents, professional advisors, and third-party auditors (each, a “Representative”) as long as (a) the Representative has a need to know the Confidential Information in connection with the exercise by that party of its rights or the performance of its obligations under these Terms and any Order Form; (b) the Representative has been informed of the confidential nature of the Confidential Information; (c) the Representative is obligated to protect the Confidential Information in a manner consistent with these terms; and (d) the Receiving Party remains responsible for the Representative’s compliance with the terms of these Terms and any Order Form.
7.4. The Receiving Party may disclose Confidential Information without the Disclosing Party’s consent to the extent required by law or governmental authority. Before disclosing the Disclosing Party’s information under this section, the Receiving Party must (a) notify the Disclosing Party (unless law prohibits the notice); (b) use reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) to the extent permitted and reasonably possible, allow the Disclosing Party a reasonable opportunity to object to or limit the disclosure.
8. PAYMENT OF FEES
8.1. Fees and Payment. Customer shall pay Astronomer the applicable fees set forth in the Order Form pursuant to the payment terms contained therein. Invoices not paid by the due date (unless disputed in good faith by the Customer in accordance with this section) are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower provided that Astronomer has first notified Customer in writing that such invoice is overdue and Customer fails to make payment in full of such invoice within fifteen (15) days following receipt of Astronomer’s written notice. If Customer has a reasonable good faith dispute, Customer shall notify Astronomer’s support department at support@astronomer.io within ten (10) days of the invoice date.
8.2. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on Astronomer’s net income, property, or employees (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase, receipt, access and use of the Solution and Professional Services. If Astronomer has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Astronomer will invoice Customer and Customer will pay that amount unless Customer provides Astronomer with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Astronomer, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Astronomer receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Astronomer’s request, Customer will provide to Astronomer its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the ordered services.
9. TERM AND TERMINATION
9.1. Term. Customer shall have the right to access and use the Solution beginning on the Effective Date and continuing until any active Term has expired or until earlier terminated pursuant to the terms of this Agreement. Customer’s subscription to any Solution shall be as stated in the Order Form (the “Initial Subscription Term”), and thereafter the Solution will automatically renew at the end of the then current Initial Subscription Term for successive one (1) year terms(“Renewal Subscription Term” and collectively, “Term”), unless Customer or Astronomer provides forty-five (45) days’ prior written notice that it does not wish the Order Form to renew. Astronomer will, at least sixty (60) days prior to the expiry of the then current Term, notify Customer of any changes to the subscription fees and support fees payable by the Customer for the forthcoming Renewal Subscription Term.
9.2. This Agreement will automatically terminate and cease to have any effect if there are no Order Forms then in effect and the parties are not in discussions relating to any potential Order Forms.
9.3. Termination by either party. Either party shall be entitled to terminate this Agreement and/or all or any Order Forms immediately upon written notice to the other party if: (a) the other party is in material breach of this Agreement and/or all or any Order Forms and such breach continues for a period of thirty (30) days after receipt of written notice from the non-breaching party describing such breach in reasonable detail; (b) immediately upon written notice if the other party becomes the subject of any bankruptcy proceeding or any other proceedings relating to insolvency, administration, liquidation or assignment for the benefit of some or all of its creditors or enters into an agreement for the composition, extension, or readjustment of substantially all of its obligations. If Customer terminates pursuant to this section 9.3 (a), then Astronomer will provide a pro-rata refund of Fees paid for the period following the effective date of such termination.
9.4. Termination by Astronomer. Astronomer shall be entitled to immediately terminate this Agreement and/or any or all Order Forms upon written notice to the Customer where: (a) Astronomer exercises its rights under section 3.5 and the reasons for deletion/suspension has not been alleviated within ten (10) days from the date of the deletion/suspension; or (b) Astronomer believes that it is no longer legal to continue to operate its business or to make available the Solution for use in or access from the country where Customer is using or accessing the Solution.
9.5. Effects of Termination. Upon expiration or termination of this Agreement or an Order Form for any reason: (a) all rights and licenses granted to Customer will immediately terminate and Customer will no longer be able to access or use the Solution; (b) where the Software Service is made available as Downloadable Software, Customer shall immediately destroy or return the Downloadable Software (including all copies of it) in its possession or control and, in the case of destruction, certify to Astronomer that it has done so; (c) all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, sections 4,6,7 this section 9.5 and sections 9 and 10; (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination which existed at or before the date of termination will not be affected. If the Agreement terminates, then all Order Forms also terminate or expire unless otherwise agreed in writing.
10. WARRANTY AND DISCLAIMER
10.1. Subject to Customer’s compliance with section 3, Astronomer warrants to the Customer that during the Term (a) the Software Service will operate in all material respects with the applicable Documentation; (b) it will comply with all applicable laws in its provision of the Software Service to the Customer; and (c) if applicable, the Professional Services will be provided in accordance with good industry practice by appropriately qualified personnel using reasonable skill and care. If the Software Service does not comply with this section, Astronomer shall use commercially reasonable efforts to correct any reproducible non-conformity. If it is unable to do so within thirty (30) days of written notice from Customer, Customer may terminate the license to the Solution and Astronomer shall refund any Subscription Fees that have been paid by Customer in advance for the period from the date of termination to the end of the Subscription Term. Customer’s rights in this section shall be Customer’s sole and exclusive remedy in relation to any breach of section 10.1 (a).
10.2. Exclusions. This warranty will not apply to the extent any non-conformance is caused by: (a) Customer using the Solution with an application or in an environment other than as described in the Documentation; or (b) modifications made to the Solution that were not made by Astronomer, its authorized representatives or with the express written authorization of Astronomer. OTHER THAN AS PROVIDED IN THIS AGREEMENT, ASTRONOMER DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTION OR THE PROFESSIONAL SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOLUTION AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND ASTRONOMER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.3. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER OR IN CONNECTION WITH EACH ORDER FORM SHALL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER TO ASTRONOMER IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Nothing in these Terms will limit or exclude either party’s liability for: (a) death or personal injury caused by its negligence; (b) gross negligence or willful misconduct; (c) any matter which by law may not be excluded or limited; and/or (d) in the case of Customer, for breach of warranties provided in this agreement, breach of sections 3.2, 3.3, 3.4, and/or payment of Fees.
11. INDEMNIFICATION
11.1. Astronomer will defend (at its own cost) Customer against (or at Astronomer’s option settle) any third party claim which asserts that the Software Service (or any portion thereof) infringes any copyright, patent, trademark, trade secret or other intellectual property or proprietary right of that third party and Astronomer shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction because of any such claim. This indemnity will not apply: (a) if the Software Service is modified by anyone other than Astronomer; (b) to the extent the claim would not have arisen if the Customer had not combined or used the Solution with any non-Astronomer applications, code, or products; (c) in the event of continued use of an infringing version of the Solution after Astronomer has provided a non-infringing version; or (d) to the extent breach of these Terms caused the infringement claim.
11.2. If Astronomer reasonably anticipates that the Software Service is or may be subject to a third party claim, Astronomer may, at its discretion (i) obtain a license to continue using and making available the Software Service, or (ii) modify the Software Service so as to make it non-infringing, provided that there is no material reduction of functionality, or if (i) and (ii) are not commercially practicable (iii) terminate the Customer’s license to the Solution and refund to Customer any prepaid Subscription Fees paid in respect of the period following the date of termination.
11.3. Customer agrees to defend, at its cost, Astronomer against any third party claim arising from Customer’s breach of warranties provided in this agreement or breach of Customer’s responsibilities in sections 3.2, 3.3, 3.4 and Customer shall pay all costs and damages finally awarded against Astronomer by a court of competent jurisdiction because of any such claim.
11.4. An indemnifying party’s obligations above shall only apply if the indemnified party: (a) provides prompt written notice to the indemnifying party of the claim in respect of which it wishes to be indemnified (“Indemnification Claim”) and (b) permits the indemnifying party to have full conduct over the defence or settlement of the indemnification claim; (c) makes no admission of liability or fault in relation to the Indemnification Claim; and (d) provides all reasonable information and assistance to the indemnifying party in relation to the indemnification claim.
11.5. This indemnity will be Astronomer’s sole liability and Customer’s sole remedy relating to or arising from a third-party intellectual property claim.
12. APPLICABLE LAWS.
Each party shall comply with applicable laws in connection with its performance under these Terms and each Order Form. In particular, each party agrees to comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such party in connection with its respective provision or use of the Solution and any Professional Services under these Terms and any Order Form. Customer represents and warrants that it will not (and will not permit any third parties to) access or use the Solution or the products of the Professional Services in violation of any U.S. export embargo, prohibition or restriction.
13. GENERAL
13.1. Assignment. Neither party may assign its rights under these Terms and/or any Order Form without the prior written approval of the other, which approval will not be unreasonably withheld or delayed, provided that either party may assign any of its rights and/or obligations herein to any of its Affiliates; or to any entity that acquires all or substantially all of its assets, subject to the assignee being in a position to discharge the obligations of the assignor. These Terms and each Order Form will be binding on such party’s successors and assigns.
13.2. Severability; Transferability. If any provision of these Terms is found to be unenforceable, invalid or illegal, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
13.3. Entire Agreement, Waiver and Modifications. These Terms (as updated from time to time in accordance with this Section 11.3) and all Order Forms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms and those Order Forms. Each party acknowledges that, in agreeing to these Terms and entering into each Order Form, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance, understanding or warranty (whether in writing or not) of any person (whether party to these Terms, an Order Form, or not) other than as expressly set out in these Terms or an Order Form. All waivers and modifications to any provisions of these Terms or any Order Form must be in a writing signed by both parties to be binding. No waiver of any right or remedy will be implied by failure to enforce such right or remedy and no express waiver will affect any rights or remedies other than that to which the waiver is applicable and only for that occurrence.
13.4. Modifications. Astronomer may amend these Terms from time to time. The latest version of these Terms will be available https://www.astronomer.io/legal/msa/. It is the Customer’s responsibility to check for updates to these Terms.
13.5. Third Party Rights, Agency, Partnership, JV, Employment and Authority. Unless it expressly states otherwise, neither these Terms nor any Order Form gives rise to any rights for a third party to enforce any term of them. No agency, partnership, joint venture, or employment is created as a result of these Terms or any Order Form, and neither party or any of its Affiliates has any authority of any kind to bind the other party or its Affiliates in any respect whatsoever.
13.6. Notices. All notices under these Terms or any Order Form will be in writing and delivered by hand, next day recognized overnight delivery service, certified or registered mail (return receipt requested) or by email. Notices for Astronomer will be sent to Astronomer, Inc., 50 West 23rd Street, Suite 1400 New York, NY 10010 with copy vis email to legal-ops@astronomer.io, unless Astronomer updates its address for notices in accordance with this section. Notices for the Customer shall be sent to the billing address for the Customer set out the Order Form, or the address for the Customer set out in the Order Form, unless Customer updates its address for notices in accordance with this section. Notices will be deemed to have been duly given: (a) when received, if delivered by hand; (b) the day after being sent, if sent for next day delivery by recognized overnight delivery service; (c) 3 business days for domestic and 5 business days for international after being sent, if sent by certified or registered mail, return receipt requested; and (d) when sent, if sent by email, provided that the email is sent within normal business hours in the place of receipt and provided that no error message, sender not available message or similar is received. If an email is sent outside normal business hours in the place of receipt, it will be deemed delivered at the start of the next business day. Either party may update its address for notices by serving notice on the other party in accordance with this section.
13.7. Exclusion of Terms. Neither the Uniform Commercial Code (UCC), the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply to these Terms.
13.8. Governing law and jurisdiction. These Terms and each Order Form shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. The parties agree to bring any action under or related to these Terms and/or any Order Form exclusively in the courts located in New York County, New York, and hereby consent to the jurisdiction of those courts for such purposes.
13.9. Publicity. Except as provided below, neither party will use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of the other party or any of its Affiliates in any manner without prior written authorization of such use by the other party. Neither party will issue press releases or publicity relating to the other party, these Terms or an Order Form or reference the other party or its Affiliates in any press release, brochures, advertisements, client lists or other promotional materials without the prior written permission of the other party. Notwithstanding the foregoing, Astronomer may use Customer’s name and logo as part of a list of Astronomer clients, and Customer hereby grants Astronomer a limited, non-transferable, worldwide license to use Customer’s name logo for such purposes.
13.10. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms or an Order Form (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
13.11. Conflicts. These Terms and each applicable Order Form are intended to complement each other. Any purchase orders or other online terms or documents issued or made available by Customer shall be deemed to be for Customer’s convenience only and, notwithstanding acceptance of purchase orders or other documents by Astronomer, shall in no way change, override, or supplement these Terms or any Order Form.
13.12. Section Headings. Section headings have been included in these Terms for convenience only and are not to be considered part of, or to be used in interpreting these Terms.
13.13. Counterparts. These Terms and each Order Form may be signed in counterparts, which together will constitute one and the same instrument. A signature delivered by facsimile, .pdf or other reliable form of electronic reproduction will be considered an original for purposes of these Terms and the relevant Order Form.
13.14. Authority to Sign. Each party represents that its signatory who signs the Order Form and accepts these Terms is duly authorized by all necessary corporate or other appropriate action to execute the Order Form and agree to these Terms.
