WunderGraph Cosmo Managed Service Terms of Use

Last modified: February 14th, 2024

These WunderGraph, Inc. Cosmo Managed Service Terms of Use (“Terms”), together with the sign-up information provided by you (as “Customer”), the WunderGraph Website Terms of Use which are incorporated herein by reference and available at: https://wundergraph.com/terms, the WunderGraph Website Privacy Policy which is incorporated herein by reference and available at: https://wundergraph.com/privacy-policy, and the WunderGraph Cosmo order form (“Order Form”) executed by WunderGraph and Customer, the terms of which are fully incorporated by reference herein (collectively, the “Agreement”) are the only terms that govern WunderGraph, Inc.’s (“WunderGraph”) provision to Customer of the WunderGraph Cosmo Service (as defined below). In the event of a conflict between the terms of these Terms and the terms of an applicable Order Form, the terms of the applicable Order Form shall take precedence. WunderGraph’s provision of the Service hereunder is expressly conditioned upon Customer’s assent to these Terms and the Agreement. WunderGraph and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.

1. Definitions.

a. “Customer Data” means any and all data and other information of any kind collected, uploaded, transmitted, submitted, posted or otherwise received from Customer and hosted on the Service or hosted on Customer’s device(s), either locally or on a Customer-hosted environment.

b. “Service” means the WunderGraph Cosmo Managed Service, which is a suite of applications that are delivered to Customer as cloud-provided solution under a paid subscription, as further described in the WunderGraph Cosmo subscription level plans and features overview available at: https://wundergraph.com/pricing; provided, that the Service shall not include Customer Data.

c. “Software” means the Cosmo Router component as provided by WunderGraph through GitHub, which is required to use the Service and delivered to Customer for download, and must be hosted by Customer in accordance with the Service’s documented requirements.

d. “Updates” means any bug fixes, patches, features or error corrections to the Software or Service that, in the sole discretion of WunderGraph, WunderGraph generally makes available free of charge to all licensees of the Software or Service unless such Update requires an upgrade in Service subscription level, or is developed specifically for Customer as part of a separate Professional Services agreement.

2. Eligibility; License.

a. Eligibility. To sign up for the Service, Customer must have a functioning account and valid e-mail address for receiving billing information and Service alerts.

b. License Grant. Subject to and conditioned on Customer's compliance with all the terms and conditions of this Agreement and payment of Fees (as defined below), WunderGraph hereby grants Customer a limited, worldwide, non-exclusive, revocable, non-sublicensable, and non-transferable license during the Service subscription term to use the Software and Service solely for the purposes authorized under Customer’s Service subscription plan and level.

c. Use Restrictions. Customer shall not use the Software and/or Service for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Service to others; (ii) develop, sell or provide any software or service in competition with the Service; or (iii) use the Software or Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

d. Reservation of Rights. WunderGraph reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software or Service.

e. Customer Data. Customer is and shall remain the sole and exclusive owner of all Customer Data. To the extent Customer chooses to host Customer Data on the cloud-based Service provided by WunderGraph, Customer hereby grants to WunderGraph a non-exclusive, non-transferable, non-sublicensable license to access and/or use the Customer Data solely as necessary to provide the Service for Customer’s benefit as provided in this Agreement for the duration of the Agreement. Except for the limited license provided in this Section, nothing contained in this Agreement shall be construed as granting WunderGraph or any third party any right, title or interest in or to any Customer Data, whether by implication, estoppel or otherwise.

f. Customer Responsibilities. Customer is responsible and liable for all uses of the Software and/or Service under Customer’s subscription, regardless of whether such access or use is permitted by or in violation of this Agreement.

3. Discontinuance or Modification of Service.

WunderGraph may at its sole discretion discontinue or modify the Software or Service or any features thereof in whole or in part, modify the Software or Service specifications in whole or in part, or replace the Software or Service with similar WunderGraph or third party products at any time upon providing advance written Notice (as defined below) to Customer with a description of such discontinuation, modification or replacement.

4. No Support; Suspension of Services; Usage Limits; Extensions.

a. WunderGraph provides no support for the Software or Service except and unless stated otherwise in the Order Form, or as implemented by a separate support agreement. WunderGraph will provide Updates to its Software or Service as they become available. Customer assumes all risks and WunderGraph assumes no liability whatsoever if Customer (i) fails to install Updates to Software to the latest version when made available by WunderGraph; or (ii) modifies the Software.

b. WunderGraph may suspend the Service in any one of the following cases: (i) when it is unavoidable due to maintenance; (ii) when it is unavoidable to remedy errors in telecommunication facilities at WunderGraph’s premises; (iii) when the Service cannot be provided because of suspension, outage or unavailability of service providers WunderGraph relies upon to provide the Service, including hosting providers, telecommunications circuit facility providers or internet access providers to whom WunderGraph is connected; (iv) when an illegal connection from Customer or third party is detected and there is no other means to prevent it; (v) when WunderGraph in its sole discretion is required to do so for the public interest, to protect against or prevent harm to WunderGraph and/or its users, or as required by law; (vi) when and for so long as Customer fails to pay any amounts due hereunder in a timely manner; or (vii) when Customer exceeds its allowed usage limits for its Service subscription plan level. Customer will be notified of the date and duration of such suspension in advance except in emergency situations or when Customer fails to make timely payment or exceeds its usage limits for its Service subscription plan level.

c. Customer acknowledges and agrees that each Service subscription plan level contains feature and/or usage limits. Usage limits for the Service apply on the basis of a usage period (“Usage Period”), which is one month unless stated otherwise in the applicable Order Form. Customer may purchase usage limit extensions (“Extensions”) at a fixed size according to the price list currently in effect and as amended from time to time, or as defined in the applicable Order Form. All Extensions are non-refundable, and are applicable only to the then-current Usage Period. At the end of the Usage Period, any remaining usage credit under the Extension will become void and Customer’s usage limit will revert to its regular level under its Service subscription plan. In the event Customer exceeds the usage limits applicable to its Service subscription plan, WunderGraph reserves the right to suspend Customer’s usage of Services without prior notice until the beginning of the next month of the Customer’s Service subscription plan or Customer’s purchase of an Extension, whichever occurs first.

5. Fees and Payment; Service Upgrades.

a. Fees. As a condition of using the Service, Customer consents to WunderGraph’s use of third-party merchants of record (“Merchant of Record”) to facilitate any payments hereunder. Customer shall pay WunderGraph or the applicable Merchant of Record designated by WunderGraph (as the case may be) the subscription fee amount (“Fees”) for the applicable Service level plan. This can be according to the official WunderGraph Service price list at the time of sign-up and as amended from time to time, or as specified in a separate Order Form agreed upon by the Parties, without offset or deduction. In cases where an Order Form is used, the terms and pricing in the Order Form shall prevail. WunderGraph reserves the right to increase Fees at the time of each Service renewal to reflect the price levels in effect on the official WunderGraph Service price list or the terms in the Order Form at the time of renewal, as applicable. Customer shall make all payments hereunder in U.S. dollars or other applicable currency offered by the applicable Merchant of Record. Fees for monthly and annual Service plans are due and paid in full at the start of the subscription term. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) WunderGraph may suspend Customer’s access to the Service until payment is made; and (ii) WunderGraph may charge Customer a reactivation fee for restoring use of the Service.

b. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.

c. Service Upgrades. Customer may upgrade (but not downgrade) its Service subscription plan level at any time upon written Notice to WunderGraph. Upon upgrading, the Fees for the new Service subscription plan level are due immediately. In the event Customer has paid for an annual Service subscription plan level, upon upgrading, the amount paid by Customer for its previous annual Service subscription plan level will be refunded to Customer in a separate transaction on a pro rata basis to the extent any unused months are left in such Service subscription plan.

6. Intellectual Property Ownership.

Customer acknowledges that, as between Customer and WunderGraph, WunderGraph and/or its licensors exclusively own all right, title, and interest, including all intellectual property rights, in and to the Software and Service. No rights to the Software or Service are granted to Customer except as expressly provided in this Agreement.

7. Warranty Disclaimer; Beta Disclaimer.

a. THE SOFTWARE AND SERVICE ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WUNDERGRAPH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WUNDERGRAPH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WUNDERGRAPH MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND/OR SERVICE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PRODUCTS, SYSTEMS OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

b. BETA DISCLAIMER. FEATURES OF THE SOFTWARE OR SERVICE THAT ARE IDENTIFED BY WUNDERGRAPH AS “BETA” FORM MAY CONTAIN DEFECTS. A PRIMARY PURPOSE OF SUCH BETA PROGRAMS IS TO OBTAIN FEEDBACK ON SERVICE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. CUSTOMER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA SOFTWARE OR SERVICE FEATURE. THE BETA SOFTWARE AND SERVICE FEATURES ARE PROVIDED BY WUNDERGRAPH ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.

8. Indemnification.

Customer shall indemnify, hold harmless, and, at WunderGraph's option, defend WunderGraph, its affiliates, directors, officers, employees and agents (collectively, “WunderGraph Indemnitees”) from and against any and all claims, losses, damages, liabilities, penalties, and costs (including attorneys' fees) (collectively, “Claims”) incurred by WunderGraph Indemnitees arising out of or relating to Customer's: (i) negligence or willful misconduct; (ii) use of the Software or Service in a manner not authorized or contemplated by this Agreement; (iii) use of the Software or Service in combination with data, software, hardware, equipment or technology not provided by WunderGraph or authorized by WunderGraph in writing; (iv) modifications to the Software or Service not made by WunderGraph; (v) misuse of the Software or Service causing damage to WunderGraph’s or a third party’s network, servers or reputation; (vi) infringement or misappropriation of the intellectual property rights of a third party; (vii) violation of applicable law or regulation; or (viii) use of any version other than the most current version of the Software and/or Service provided to Customer, provided that Customer may not settle any such Claim against WunderGraph Indemnitees unless WunderGraph consents to such settlement, and further provided that WunderGraph will have the right, at its option, to defend itself against any such such Claim or to participate in the defense thereof by counsel of its own choice.

9. Assumption of Risk.

The entire risk of the use, results and performance of the Service is borne by Customer. WunderGraph assumes no responsibility whatsoever for Customer’s use of the Software and/or Service, including without limitation use of any Customer-hosted environments and Software modified by Customer, and WunderGraph shall not be liable for any losses incurred by Customer or any third party arising out of or relating to Customer’s use and modification of the Software and/or Service. Customer uses and relies on the Software and/or Service at its own risk. If any deficiencies are noted in the Software and/or Service, Customer shall immediately cease all use of the Software and/or Service and not rely upon the same in any capacity. Customer’s sole and exclusive remedy relative to any defects or deficiencies in the Software and/or Service shall be as set forth in Section 10 hereof.

10. Limitations of Liability.

The limitation of liability set out above does not apply to liability resulting from WunderGraph’s gross negligence or willful misconduct.

WunderGraph will not be liable if Customer or any third party suffers damage resulting from the following causes: (i) damages caused by the Service being unable to operate normally because of a third party intrusion; (ii) damage caused by an error or fault of hardware, software, or the network for which WunderGraph is not responsible or at fault; (iii) damage caused by Customer’s hardware, software, or network or Customer’s hosting environment; (iv) damage caused by Customer’s mistake in use of the Software / Service, intentional misuse of the Software / Service, customization or modification of the Software by Customer or on Customer's behalf by a third party, or any other use of the Software / Service outside of the permitted scope of this Agreement; (v) damage caused by errors in services or networks of Customer connecting to the Service; (vi) damage caused by software viruses and illegal access to Customer’s computer systems, including, without limitation, hacking; or (vii) damage caused by any fault, access failure, and performance degradation for which Customer’s internet access provider is responsible.

Customer will be liable for any excess use of resources on WunderGraph's systems, including but not limited to sending data to the Service that exceeds sample rate limits preset by WunderGraph.

11. Term and Termination.

a. Term. This Agreement and the license granted hereunder are effective on the date Customer first uses the Service / Software or signs the Order Form, as applicable, and shall continue for as long as Customer uses the Software and/or Service and pays all Fees, unless this Agreement is terminated under this section. Customer’s obligations under these Terms will survive any termination of this Agreement and will remain in effect as long as the Software remains on any device owned or used by Customer. The Service subscription term will be mutually agreed by the Parties in the applicable Order Form or determined by the Service level plan purchased by Customer, as applicable. This Agreement will automatically renew for additional renewal periods of the same duration as the previously applicable Service subscription term. Either Party may terminate this Agreement by providing written Notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term, at which time this Agreement shall terminate at the end of such term. No refunds of Fees will be given.

b. Termination. In addition to any other express termination right set forth in this Agreement: (i) WunderGraph may terminate this Agreement, effective on written Notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after WunderGraph’s written Notice thereof; or (B) breaches any of its obligations under Section 2(c); (ii) either Party may terminate this Agreement, effective on written Notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written Notice of such breach; or (iii) either Party may terminate this Agreement, effective immediately upon written Notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

c. Effect of Termination. Upon termination of this Agreement, Customer’s access to the Service and all licenses granted hereunder will also terminate. Subject to Section 5(c), no termination will affect Customer's obligation to pay all Fees that may have become due before such termination, or entitle Customer to any refund.

d. Survival. This Section 11 and Sections 1 (Definitions), 2(c) (Use Restrictions), 5 (Fees and Payment; Service Upgrades), 6 (Intellectual Property Ownership), 7 (Warranty Disclaimer; Beta Disclaimer), 8 (Indemnification), 9 (Assumption of Risk), 10 (Limitations of Liability), and 12 (Miscellaneous) shall survive the termination of this Agreement.

12. Miscellaneous.

a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all attachments, exhibits or appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

b. Notices. Except for Service upgrade requests under Section 5(c) which may be made by electronic mail, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) to WunderGraph must be in writing and addressed to WunderGraph at the following address: Wundergraph, Inc., 66 W Flagler St Ste. 900, Miami, FL 33130 U.S.A. All Notices to WunderGraph must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Customer consents to Notice by nationally recognized overnight courier, certified or registered mail, or by electronic mail.

c. Force Majeure. In no event shall either Party be liable to the other, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond a Party’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (vii) power or telecommunications outage or shortage of adequate power, communications or transportation facilities, whether belonging to that Party or any third party.

d. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by WunderGraph of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by an authorized representative of WunderGraph.

e. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

f. Governing Law; Jurisdiction. i. This Agreement and any matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida, United States of America, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. ii. Any suit, action or proceeding arising out of or relating to this Agreement, the purchase and sale of the Service, and the relationship of the Parties shall be instituted in a state or federal court located in the County of Miami-Dade, State of Florida, and Customer irrevocably consents and waives all objections to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding. In the event WunderGraph brings any proceeding to enforce its rights hereunder including for any breach of any of the provisions of this Agreement, WunderGraph will be entitled in such proceeding to recover its reasonable attorneys' fees together with the costs and expenses of such proceeding. CUSTOMER AND WUNDERGRAPH HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE CONCERNING THIS AGREEMENT AND/OR THE SERVICE. iii. Any dispute or other action arising out of or relating to this Agreement must be brought by Customer within one (1) year of the date the event giving rise to the cause of action occurred or it shall be forever barred.

g. Assignment. WunderGraph may assign its rights or obligations hereunder without restriction. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of WunderGraph. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

h. Export Regulation. The Software and/or Service may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. Subject to the terms of this Agreement, Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software and/or Service available outside the U.S.

i. Equitable Relief. Notwithstanding Section 12(f)(ii) herein, Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2(c) would cause WunderGraph irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, WunderGraph will be entitled to equitable relief from any court with jurisdiction, without any requirement to post a bond or other security, or to prove actual damages. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.