V.14 - June 18th, 2024
1.1 This Serverless Subscription & License Agreement ("Agreement") is between the entity accepting this Agreement, or if not applicable, the individual accepting it ("Customer"), and Serverless Inc., located at 558 San Anselmo Ave, Ste A, San Anselmo, CA 94960, United States ("Serverless"), which owns or operates the services Serverless makes available through its website (serverless.com), including its website, the Serverless Framework Command Line Interface (“CLI”), the Serverless Framework Dashboard (“Dashboard”) and any other software or services offered by Serverless (“Serverless Services”) used by the Customer. This Agreement applies to Customer’s Subscription and License for Serverless Services.
1.2 If you accept this Agreement on behalf of your employer or another entity buying a Serverless Subscription, you confirm that you have the authority to bind that employer or entity and agree to this Agreement on their behalf. If you use an email address from your employer or another entity to accept this Agreement, you represent that party, and your acceptance will bind your employer or that entity to these terms. If you have an existing Subscription that has just been renewed, this also qualifies as your acceptance of this Agreement. In this Agreement, "you" or "Customer" will refer to your employer or that entity.
1.3 This Agreement includes the complete understanding between the Parties about this subject and replaces all earlier agreements on this topic. There are no other oral or written terms, and neither Party relied on any statements not in this Agreement. By signing this Agreement or clicking "Agree" (or similar option) when placing an Order, downloading Serverless Services, or accessing the Serverless Services, Customer agrees to be bound by this Agreement. If Customer does not agree, do not sign, click "Agree", download, use, or access the Serverless Services.
1.4 In the event of any conflict or inconsistency between this Subscription Agreement and the Serverless Terms of Service, the terms of this Subscription Agreement shall take precedence and control. The Subscription Agreement shall govern to the extent necessary to resolve such conflict or inconsistency.
2.1 The Serverless Services are available for free, subject to the Serverless Terms of Service found on Serverless’s website (https://www.serverless.com/legal/terms) and Serverless Acceptable Use Policy found on Serverless’s website (https://www.serverless.com/legal/aup), for "Small Organizations" earning $2M USD or less in their last fiscal year. For the purposes of this Section, "Small Organizations" include commercial, academic, non-profit, or any other type of organization. “Small Organizations” do not qualify if a parent organization with over 75% ownership of them earned more than $2M USD in their last fiscal year. Organizations that do not qualify as Small Organizations must pay to use the Serverless Services, subject to this Agreement, the Serverless Terms of Service, and Serverless Terms of Service. Government Entities are prohibited from using the free tier of Serverless Services. "Government Entities'' include any government, governmental subdivision, regulatory or administrative body, entity owned or controlled by the government, entity created by law or decree, entity funded by the government, or any department, agency, or instrumentality of a public international organization. Serverless reserves the right to determine if an entity is considered a Small Organization or Government Entity.
2.2 The Serverless Services are made available for commercial license via a Serverless Subscription which is priced via Credits, which Customer must purchase to cover metered usage of the Serverless Services, which include but are not limited to Serverless Framework CLI Instances (for CLI version 4 or greater), Serverless Framework Dashboard Observability Traces, and Serverless Framework Dashboard Observability Metrics. If Customer complies with this Agreement during the Subscription Term, having paid the applicable fees in full or within the “Small Organization” usage in the Serverless Terms of Service, Serverless grants Customer the rights specified in this Section to enable effective use of the Serverless Services. All other rights remain reserved by Serverless. Subject to these terms, Serverless grants Customer a non-exclusive, non-transferable right to use the Serverless Services covered by the Subscription as follows:
A. Customer may:
- Install and/or use any version of the products within the Serverless Services covered by the Subscription.
B. Customer may not:
- Rent, lease, reproduce, copy, modify, adapt, create derivative works of, distribute, sell, or transfer the Serverless Services;
- Provide a third party with access to the Serverless Services or the right to use the Serverless Services;
- Reverse engineer, decompile, disassemble, modify, translate, or make any attempt to discover the source code of, the Serverless Services; or
- Remove or obscure any proprietary or other notices contained in the Serverless Services.
- Use the Serverless Services in any way not allowed by the Serverless Terms of Service and the Serverless Terms of Service.
2.2 Open source software licenses for parts of the Serverless Services issued under an open source license are separate written agreements. To the extent that these open source licenses explicitly override these Terms, the open source licenses will govern Customer’s agreement with Serverless for using the components of the Serverless Services provided under an open source license.
2.3 Customer acknowledges that no ownership rights are conveyed to Customer under this Agreement, irrespective of the use of terms such as ‘purchase’ or ‘sale’. Serverless has and retains all rights, title, and interest, including all intellectual property rights, in and to the Serverless Services, any and all related or underlying technology, and any modifications or derivative works of the Serverless Services, including without limitation as they may incorporate Feedback (as defined below).
2.4 Serverless does not claim ownership or control over any Content or Software Application. Customer retains copyright and any other rights Customer already holds in the Content and/or Software Application and is responsible for protecting those rights as needed. By submitting, posting, or displaying Content on or through the Serverless Services or creating Software Applications using the Serverless Services, Customer grants Serverless a worldwide, royalty-free, non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute the Content solely to enable Serverless to provide Customer with the Serverless Services.
2.5 Serverless owns the data and information related to Customer’s or its Users’ use of the Serverless Services, including for compiling statistical and performance information, or any other information reflecting the access and use of the Serverless Services by Customer or its Users ("Usage Data"). Nothing in this Agreement restricts or prohibits Serverless from using the Usage Data in any way, including optimizing and improving the Serverless Services or related services, or enforcing this Agreement.
3.1 The Subscription Term will automatically renew for additional periods regardless of the duration or term unless Customer provides written notice of non-renewal at least 30 days before the end of the current term. Notice of non-renewal can be provided by sending an email to support@serverless.com or by canceling the Subscription within the Customer's Organization in the Serverless Framework Dashboard before the Subscription Term. Upon renewal, Customer shall pay the subscription fees as set forth in this Agreement. All payment inquiries should be directed to support@serverless.com.
3.2 The specific Credits for Serverless Services that the Customer has purchased must be detailed in the Order Form attached to this Agreement or within the Customer’s Serverless Framework Dashboard. If the Customer requires an increase in the number of Credits during the Subscription Term, this Agreement must be amended in writing to reflect the additional Credits and any associated fees, or the Credits must be increased within the Serverless Framework Dashboard. The amendment must be signed by authorized representatives of both Parties. Canceling a Subscription requires payment in full upon cancellation.
3.3 Unless specifically stated otherwise in this Agreement, all payments to Serverless are due within 30 days of the invoice date. Late payments will accrue interest at 1.5% per month (or the highest rate permitted by law, if lower). In addition to any other rights or remedies, Serverless reserves the right to disable or suspend Customer’s and its Users' access to the Serverless Services for any failure to pay due invoices. All payment inquiries should be directed to support@serverless.com.
3.4 If Customer purchases the Serverless Services through a Marketplace or Reseller, Customer agrees to pay all fees according to the standard Serverless Services price list at the Marketplace or Reseller, including any charges for usage in excess of authorizations. The price list excludes customs, duties, taxes, and similar levies imposed by any authority. Customer will pay the applicable Marketplace or Reseller instead of paying Serverless directly. Customer's acceptance of the Marketplace or Reseller pricing and terms binds Customer to the obligations of this Agreement and any applicable Order Form. If purchasing through a Marketplace or Reseller, Customer is responsible for full payment of the fees for the Subscription Term, regardless of usage, payment, or billing terms between Customer and the Marketplace or Reseller.
3.5 Except as expressly stated in this Agreement, all payments by Customer are non-refundable and shall be made without any deductions for withholding, sales or use, goods and services, value-added, consumption, or similar taxes imposed by any government (excluding taxes on Serverless's net income), which shall be paid by Customer. If Customer is required to withhold any taxes on amounts payable to Serverless, Customer shall pay Serverless additional amounts to ensure receipt of the full amount Serverless would have received without such withholding. Customer shall provide Serverless with official receipts from the relevant governmental agency or other evidence reasonably requested by Serverless to establish that such taxes have been paid. If applicable law requires Customer to self-assess or reverse-charge any taxes, Customer shall comply with such law and provide Serverless with Customer’s valid VAT registration number relevant to the Service provided under this Agreement. Any taxes Serverless is required to pay will be added to Serverless’s invoice, and Customer shall promptly remit such amounts to Serverless upon invoice. Serverless reserves the right to disable Customer access to the Service for any failure to pay or late payment.
4.1 This Agreement commences on the Effective Date and will remain in effect until it is terminated in accordance with the terms herein. Either party may terminate this Agreement if the other party materially breaches the terms and conditions of this Agreement and fails to cure such breach within 30 days of receiving written notice thereof. Upon the expiration or termination of this Agreement, the license to the Serverless Services will automatically terminate and Customer will discontinue all use of the Serverless Services. Sections 2.5, 2.6, 5, 7, 8, 9, 10, 11 and 13 shall survive any termination or expiration of this Agreement.
5.1 Upon submitting any Customer or User suggestions, proposals, ideas, recommendations, bug reports, improvements, or other feedback regarding the Serverless Services (“Feedback”), Customer grants to Serverless a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit the Feedback (including by incorporating such Feedback into the Serverless Services) without restriction. Feedback expressly excludes any Customer Confidential Information and Customer Data.
6.1 Serverless will maintain reasonable administrative, physical, and technical security measures consistent with applicable law and current prevailing security practices intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Customer’s Data or the Serverless Services. Serverless shall notify Customer of any confirmed security breach as soon as reasonably possible but in any event within seventy-two (72) hours of a breach involving Customer Data.
7.1 Except as explicitly stated in this Agreement, Customer acknowledges and agrees that use of the Serverless Services is at Customer’s own risk and that the Serverless Services and documentation are provided “as is” and “as available.” Serverless, along with its subsidiaries and affiliates, makes no express warranties and disclaims all implied warranties regarding the Serverless Services, including implied warranties of merchantability, fitness for a particular purpose, and non-infringement, as well as any warranties arising from course of dealing or trade usage. No advice or information, whether oral or written, obtained from Serverless or elsewhere shall create any warranty not expressly stated in this Agreement. Furthermore, Serverless and its subsidiaries and affiliates do not guarantee that: (a) Customer’s use of the Serverless Services will meet Customer’s requirements, or (b) Customer’s use of the Serverless Services will be uninterrupted, timely, secure, or error-free. However, nothing in this Agreement shall exclude or limit Serverless’s warranty or liability for losses which cannot be lawfully excluded or limited by applicable law. Customer also understands that the Serverless Services are not designed, intended, or warranted for use in hazardous environments that require fail-safe controls, such as nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. Serverless makes no warranties regarding any third-party products or services.
8.1 By Serverless. Subject to the limitation on liability set forth in Section 9, Serverless shall defend at its own expense any legal action brought against Customer to the extent that it is based on a claim or allegation that the Serverless Service (excluding any Open Source Software) infringes a U.S. patent or copyright of a third party, and Serverless will pay any costs and damages awarded against Customer in any such action, or agreed to under a settlement signed by Serverless, that are attributable to any such claim, provided that Customer does not make any compromise or incur any expense without Serverless’s consent. Such defense and payments are subject to the conditions that Customer (a) promptly notifies Serverless in writing of such claim, (b) gives Serverless sole control of the defense and settlement of the claim, and (c) reasonably cooperates with Serverless in connection with the defense and settlement of the claim. Serverless will have no liability to defend and pay for any infringement claim to the extent it (i) is based on modification of the Serverless Service other than by Serverless, with or without authorization; (ii) results from Customer’s failure to use an updated version of the Serverless Service; (iii) is based on the combination or use of the Serverless Service with any software (including, without limitation, Open Source Software), program, or device not provided by Serverless if such infringement would not have arisen but for such use or combination; or (iv) results from use of the Serverless Service by Customer after the license was terminated.
8.2 Limitation on Infringement Claims. Serverless will have no liability to Customer Indemnitees or any obligations under this Section to the extent a claim arises out of: (a) the modification of any portion of the Serverless Services by any party other than Serverless or its authorized representatives; (b) the combination, operation, or use of any Serverless Services with other products, data, third-party software, or services where the Serverless Services would not by itself be infringing; (c) the continued use of the allegedly infringing Serverless Services after being notified of the infringement claim or after being provided a modified version of the Serverless Services by Serverless to address any alleged infringement; or (d) the failure to use the Serverless Services in accordance with the applicable documentation or outside the scope of the rights granted under this Agreement. Should the Serverless Services, or their operation, become or in Serverless’s opinion be likely to become, the subject of such a claim described in Section 8.1, Serverless may, at its option and expense, (i) procure the right for Customer to continue using the Serverless Services, or (ii) replace or modify the Serverless Services so that they become non-infringing. If neither (i) nor (ii) are reasonably practicable, Serverless may terminate the applicable Agreement and refund to Customer any pre-paid, unused fees corresponding to the unused period of the Subscription Term. This Section states Serverless’s sole and exclusive liability, and Customer’s sole and exclusive remedy, with respect to infringement or misappropriation of intellectual property rights of any kind.
8.3 By Customer. Customer shall defend and hold Serverless and its affiliates, officers, directors, agents, and employees (“Serverless Indemnitees”) harmless against any third-party claims and actions arising from (a) an allegation that Customer Data infringes the intellectual property rights of any third party, and (b) any use by Customer or its Users of the Serverless Services in violation of the license restrictions or violation of applicable laws, rules, or regulations in connection with the Serverless Services, and shall indemnify the Serverless Indemnitees against any damages, judgments, litigation costs, including reasonable attorneys’ fees.
8.4 Procedure. The party seeking indemnification will promptly notify the indemnifying party of any claim or action covered by this Section. The parties agree to reasonably cooperate during such proceedings. The indemnifying party will have the right to defend any such claim and will have control over the litigation, negotiation, and settlement of any such claim, provided it does not make any settlement that results in liability or imposes any obligation on the indemnified party without the prior written consent of such party, which will not be unreasonably withheld. The indemnified party may, at its sole expense, participate in the defense of any claim.
9.1 Exclusion of Damages. To the maximum extent permitted by applicable law, Customer expressly understands and agrees that Serverless, its subsidiaries and affiliates, and its licensors shall in no event be liable to Customer for any incidental, indirect, special, punitive, or consequential damages (including without limitation loss of profits, goodwill, loss of use, lost data, failure of security mechanisms, or interruption of business) arising from this Agreement, whether under theory of contract, tort, including negligence, or otherwise, even if Customer has been advised of the possibility of such damages in advance.
9.2 Liability Cap. The total liability of Serverless arising out of or related to this Agreement will not exceed the amounts paid by Customer for the relevant service under the applicable Agreement in the twelve (12) month period immediately preceding the event giving rise to the liability.
10.1 Customer understands that the Serverless Services are subject to United States export controls administered by the United States Department of Commerce and the United States Department of Treasury Office of Foreign Assets Control. Customer acknowledges and agrees that the Serverless Services may not be used, transferred, exported, or re-exported to countries under a U.S. embargo (collectively, “Embargoed Countries”), or by nationals or residents thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals, the U.S. Department of Commerce’s Entity List, Denied Persons List, or Unverified List, or the U.S. Department of State’s Nonproliferation Sanctions list (collectively, “Designated Nationals”). These lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Serverless Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply with all United States export laws and assumes sole responsibility for obtaining necessary U.S. government export licenses for export or re-export as required. Customer will defend, indemnify, and hold Serverless and its licensors harmless from and against any liabilities arising from Customer’s or any of its officers, directors, employees, agents, or representatives' violation of such laws or regulations.
11.1 The Agreement will be governed as follows based on the laws of the State of California and controlling United States federal law. The state and federal courts located within the county of Santa Clara, California. Any dispute, controversy, or claim arising under, out of, or relating to this Agreement will be finally determined by arbitration conducted by JAMS (or, if unavailable, a similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes. The arbitration will be conducted by a single arbitrator who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The arbitration will take place in Santa Clara County, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law), and binding upon the parties, and may be entered in any court of competent jurisdiction. This provision does not limit either party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
The parties agree that the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods will not apply to this Agreement.
12.1 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that Serverless may assign this Agreement, without Customer’s consent, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
12.2 Legal Notices. Any notices hereunder must be in writing. Serverless may provide notice to Customer through Customer’s signup email address, the address provided in the applicable Agreement, Customer’s account, or in-product notifications. Customer agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to Customer will be deemed given on the first business day after Serverless sends it. Customer will provide notice to Serverless by mail to: Serverless, Inc., [Address], Attn: Legal Department, with an email copy to support@serverless.com.
12.3 Changes to the Terms. Serverless may modify these terms from time to time, with notice to Customer in accordance with Section 12.2 (Legal Notices) or by posting the modified terms on Serverless’s website. Together with notice, Serverless will specify the effective date of the modifications.
12.4 Contractual Relationship. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
12.5 Force Majeure. Except for the inability to meet financial obligations, neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, computer-related attacks, hacking, internet service provider failures or delays, accident, pandemic, labor unrest, civil disobedience, act of terrorism, or act of government (each a “Force Majeure Event”). The parties agree to use their best efforts to minimize the effects of such failures or delays. For the avoidance of doubt, Customer understands that the Serverless Services may not be provided in countries listed in the Office of Foreign Assets Control sanction list and Customer’s access to the Serverless Services may be restricted in such countries. Such prohibitions shall not constitute a Force Majeure.
12.6 Non-waiver. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing and signed by a duly authorized representative on behalf of the party claimed to have waived.
12.7 Third-party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement.
13.1 Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be deemed modified to the minimum extent necessary to render it valid and enforceable. If such modification is not possible, the provision will be severed from this Agreement, and the remaining provisions will remain in full force and effect.
13.2 Preservation of Intent: In the event a provision is modified or severed under this section, the Parties agree to negotiate in good faith to amend this Agreement to reflect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
14.1 Support services are available exclusively to Customers with a valid Subscription Agreement. While there is no formal Service Level Agreement (SLA), support requests are typically answered within a few hours and no longer than a few days. Issues and feature requests from Customers within public repositories of the Serverless Framework are treated with priority. Support requests should be directed to support@serverless.com or through the in-app chat in the Serverless Framework Dashboard.
