Discourse Enterprise Hosting Terms

These Discourse Enterprise Hosting Terms (version 3.1.0) and the Statement of Work referencing them make up an agreement between CDCK and Customer:

Background

  1. CDCK develops Discourse, a computer software platform for running Internet discussion forums. CDCK also develops Discourse Plugins that give Discourse additional features and functionality.

  2. CDCK publishes Documentation describing the features and functionality of Discourse and Discourse Plugins at https:\/\/www.discourse.org\/features.

  3. CDCK releases Discourse and Discourse Plugins as open source software that anyone can use and change, for free. Specifically, CDCK licenses Discourse under the terms of the GNU General Public License, Version 2, or GPLv2, and Discourse Plugins under the terms of The MIT License, or MIT. GPLv2 and MIT are among the most common and widely accepted open source software licenses.

  4. Discourse and Discourse Plugins in turn build on open source software developed and released by others. For example, Discourse uses PostgreSQL, an open source database, to store data.

  5. CDCK offers its familiarity and expertise with Discourse to set up, run, and maintain Internet discussion forums for paying customers. CDCK administers servers in a data center for doing so.

  6. First and foremost, this is an agreement for CDCK to host an Internet discussion forum, Customer’s Forum, using Discourse.

  7. Some CDCK customers need additional Discourse Plugins to help Discourse meet their needs. For example, some customers need Discourse Plugins to work with their in-house systems for signing in and out of company computers and services.

  8. CDCK develops new Discourse Plugins to meet the needs of paying customers. CDCK releases the vast majority of Discourse Plugins as open source, but occasionally agrees to build Discourse Plugins specific to a customer.

  9. Secondarily, this is an agreement for development of any new Discourse Plugins or other customizations that Customer may need.

CDCK’s Obligations

Host Customer’s Forum

While this agreement continues, CDCK agrees to run Discourse so that Users can use the Feature Set by visiting Customer’s Forum with systems meeting requirements in the Documentation, within the Use Limits agreed in the Statement of Work.

Configure Discourse

CDCK agrees to configure Discourse and Discourse Plugins for Customer’s Forum as agreed in the Statement of Work.

Develop Customizations

CDCK agrees to develop, install, configure, and run any additional Discourse Plugins or other customizations to Discourse agreed in the Statement of Work.

Ensure Service Levels

Service-Level Agreement

While this agreement continues, so long as Customer’s Forum remains within the Use Limits, CDCK agrees to host Customer’s Forum with Uptime of no less than 99.9%.

Give Credits for Low Uptime

CDCK agrees to credit Customer’s account on Notice and verification that CDCK failed to provide service according to Service-Level Agreement in the current Billing Period or any of the three prior Billing Periods:

  1. 5% of Fees for any Billing Period with Uptime above 99.0% but below 99.9%

  2. 10% of Fees for any Billing Period with Uptime above 90.0% but at or below 99.0%

  3. 25% of Fees for any Billing Period with Uptime at or below 90.0%

Apply Credits

CDCK agrees to apply credits under Give Credits for Low Uptime against Customer’s obligations to pay Fees as soon as possible. CDCK does not agree to refund any credits.

Refund Fees for Low Uptime

If CDCK credits Customer’s account under Give Credits for Low Uptime for three Billing Periods in a row, and Customer ends this agreement at the end of those Billing Periods, citing low Uptime, CDCK agrees to refund all Fees that Customer paid for the three Billing Periods, as well as any Prepaid Fees.

Keep Customer Data Confidential

CDCK agrees not to access, use, or disclose Customer Data without Permission, except:

  1. as needed to host Customer’s Forum

  2. to monitor use of Customer’s Forum to prevent, detect, and mitigate breach of this agreement

  3. to respond to Support Requests

Take Security Precautions

CDCK agrees to take industry-standard security precautions to defend Customer’s Forum from malicious technical attack and Data Compromise. CDCK does not agree to make sure Customer’s Forum is completely free of software bugs or configuration errors affecting security, or completely secure from all possible technical attack.

Prepare for Disasters

While this agreement continues, CDCK agrees to:

  1. adopt, maintain, and periodically review a written plan to recover from any Disaster affecting the systems used to provide Customer’s Forum or the integrity of Customer Data

  2. share the plan with relevant CDCK personnel

  3. give Customer a copy of the current plan on request

  4. follow the plan if a Disaster happens

Provide Support

Support

CDCK agrees to respond to Customer Support Requests from Customer Personnel via e-mail about configuration of, use of, and problems with Customer’s Forum.

Support Request Triage

  1. Critical Support Requests are Support Requests to urgent@discourse.org that report:

    1. systems providing Customer’s Forum are down or unresponsive

    2. Users cannot read, post to, or search Customer’s Forum

    3. Customer’s Forum is under imminent threat of malicious technical attack or Data Compromise

  2. Urgent Support Requests are Support Requests to urgent@discourse.org that report substantial loss of functionality or responsiveness of Customer’s Forum.

  3. Other Support Requests, and all Support Requests to support@discourse.org, are Regular Support Requests.

Responsiveness

CDCK agrees to make all reasonable efforts to respond to Support Requests as follows:

  1. For Critical Support Requests: Respond within 30 minutes, update on status every hour, and provide a solution within 4 hours.

  2. For Urgent Support Requests: Respond within 2 hours, update on status every 4 hours, and provide a solution within 12 hours.

  3. For Regular Support Requests: Respond the next Business Day, update on status every Business Day, and provide a solution within 7 Business Days.

Refund Fees for Unresponsive Support

If CDCK fails to meet Responsiveness for three Billing Periods in a row, and Customer ends this agreement at the end of those Billing Periods, citing poor support responsiveness, CDCK agrees to refund 5% of all Fees that Customer paid for the three Billing Periods, as well as any Prepaid Fees.

Use Responsible Subcontractors

CDCK agrees to make sure its employees and contractors abide by Keep Customer Data Confidential, Take Security Precautions, Prepare for Disasters, and Keep Malicious Code Out of the Software. CDCK may contract with others to provide computer systems used to provide Customer’s Forum to Customer.

Publish Documentation

While this agreement continues, CDCK agrees to host the Documentation so Customer personnel can read it on the World Wide Web.

Refund Prepaid Fees for Removed Features

If CDCK changes or removes Software Features from the Latest Version of Discourse that were part of the Feature Set, substantially reducing how useful Discourse is to Customer, and Customer ends this agreement in the same Billing Period as the change or the next Billing Period, citing the change, CDCK agrees to refund any Prepaid Fees.

Keep Malicious Code Out of the Software

While this agreement continues, CDCK agrees to make sure the Latest Version of Discourse and Discourse Plugins are free of computer viruses, Trojans, worms, and other malicious code.

Limit Validation Code in the Software

CDCK agrees not to include any code that automatically disables Software Features based on monitoring of Use Limits. CDCK may include code that monitors Use Limits, validates administrative Access Credentials, and reports results back to CDCK systems.

Protect Customer from Liability

So long as Customer has paid all Fees as required by this agreement:

Indemnify Customer

Subject to Indemnification Process, CDCK agrees to give Customer Indemnification for Legal Claims by others alleging that Permitted Use of Customer’s Forum infringes any copyright, trademark, or trade secret right, or breaks any law.

Provide Assurance about Patents

As of the day CDCK signs this agreement, CDCK employees are not aware of any patent that CDCK would infringe by licensing or providing Discourse and Discourse Plugins under this agreement, or that Customer would infringe by Permitted Use of Customer’s Forum.

Give Notice of Infringement and Noncompliance Claims

CDCK agrees to give Customer prompt Notice of any Infringement or Noncompliance Claim.

Protect Customer After this Agreement Ends

Keep Customer Data Confidential and Indemnify Customer continue after this agreement ends.

Customer’s Obligations

Pay Fees

Customer agrees to pay all Fees, in advance, for each Billing Period, as agreed in the Statement of Work. Customer agrees to pay all tax on fees, except tax CDCK owes on income.

Handle Tax Withholding

If Customer is located outside the United States, and local law requires Customer to withhold taxes on fees paid under this agreement:

  1. Customer agrees to make the required tax withholding payments for CDCK by deducting the right amounts from payments to CDCK and paying them to the proper tax authorities.

  2. Customer agrees to increase the amount of each payment made under this agreement, to offset withholding, so that CDCK receives the full amount owed according to the Statement of Work.

  3. Customer agrees to provide CDCK relevant official tax documentation and tax receipts showing that withholding was required, and that proper withholding payment has been made, as soon as possible after making any withholding payment.

Follow Rules About Use

Customer agrees not to:

  1. infringe anyone else’s Intellectual Property Right using Customer’s Forum

  2. violate anyone else’s rights using Customer’s Forum

  3. breach any agreement using Customer’s Forum

  4. break the law using Customer’s Forum

  5. furnish or solicit Customer Data in any way that infringes any Intellectual Property Right, breaks any law, or breaches any other agreement

  6. furnish or solicit Customer Data subject to Special Data Regulations

  7. remove proprietary notices from Discourse, Discourse Plugins, or Documentation

Enforce Rules About Use

Customer agrees to make sure Customer Personnel abide by Follow Rules About Use.

Update Account Details

While this agreement continues, Customer agrees to keep its contact, payment, and other administrative details complete, accurate, and up-to-date. Customer agrees to do so through the Account Dashboard whenever possible, and otherwise by Notice.

Choose Public Terms and Policies

Customer agrees to review provided template terms of service and public policies, and to replace, adapt, or withdraw their terms to suit Customer’s interests and comply with the law. While this agreement continues, CDCK agrees to respond to questions about how CDCK provides Customer’s Forum that are relevant to compliance as Regular Support Requests.

Respond to Support Follow-Ups

Customer agrees to make sure that relevant Customer Personnel respond quickly to follow-up questions about Support Requests.

Indemnify CDCK

Subject to Indemnification Process, Customer agrees to give CDCK Indemnification from Legal Claims by others based on:

  1. Customer’s breach of this agreement

  2. Customer Data

  3. Use of Customer’s Forum at Customer’s Own Risk

  4. misuse of Customer’s Access Credentials

Protect CDCK After this Agreement Ends

Pay Fees and Indemnify CDCK continue after this agreement ends.

Intellectual Property

Existing and Outside IP

This agreement does not change ownership of any Intellectual Property Right held by either side before entering this agreement, or created outside the scope of this agreement.

Open Source Licenses

Customer’s licenses for Discourse and Discourse Plugins are those of their respective GPLv2 or MIT public licenses, interpreted as entirely independent legal documents, separate from these terms. Obligations and guarantees about Discourse and Discourse Plugins in these terms, such as in CDCK’s Obligations, are in addition to the terms of those standard open source licenses.

Hosting Tools

CDCK develops and uses Hosting Tools in the form of software and software configurations for setting up, hosting, monitoring, and upgrading Discourse for multiple customers on a variety of infrastructure platforms. This agreement does not change ownership of any Intellectual Property Right in Hosting Tools held by CDCK before entering this agreement, or created during the term of this agreement.

Deliverables

Open Source Deliverables

CDCK will own every Intellectual Property Right in work created in the scope of this agreement designated Open Deliverables in the Statement of Work. Deliverables designated neither Open Deliverables nor Proprietary Deliverables are also Open Deliverables. CDCK grants Customer licenses for all Open Deliverables on MIT terms, interpreted according to Open Source Licenses. CDCK agrees to publish source code for Open Deliverables to the Internet.

Proprietary Deliverables

Customer will own every Intellectual Property Right in work created in the scope of this agreement designated Proprietary Deliverables in the Statement of Work. Subject to Existing and Outside IP, Proprietary Deliverables are “work made for hire” to the extent possible under copyright law. CDCK assigns every Intellectual Property Right in Proprietary Deliverables that cannot be work made for hire to Customer, and waives all moral rights in Proprietary Deliverables. Customer agrees that CDCK may develop work with functionality similar to that of Proprietary Deliverables for other customers, or to release as open source.

Changes

Changes Customer May Make

  1. Customer may end this agreement at the end of a Billing Period by giving Notice at least one full Billing Period in advance.

  2. If the Statement of Work describes a pricing structure for higher Use Limits, Customer may increase its Use Limits within that pricing structure at any time, by Notice. Customer increases to Use Limits take effect as soon as Customer pays any added Fees.

Changes CDCK May Make

  1. CDCK may end this agreement at the end of the twelfth or any later Billing Period by giving Notice at least three full Billing Periods in advance.

  2. CDCK may end this agreement immediately if Customer breaches this agreement and fails to cure the breach within fourteen calendar days of Notice.

  3. CDCK may add, remove, and change Software Features in the Latest Version of Discourse.

  4. CDCK may add, remove, and change the functionality of the Account Dashboard and Documentation.

  5. CDCK may take any of these steps in response to an Infringement or Noncompliance Claim:

    1. CDCK may release a new Latest Version of Discourse so that use of Customer’s Forum as provided will no longer infringe or break the law.

    2. CDCK may change how it provides Customer’s Forum so that use of Customer’s Forum as provided will no longer infringe or break the law.

    3. If the problem is infringement, CDCK may get a license for Customer so that use of Customer’s Forum will no longer infringe.

    4. If the problem is illegality, CDCK may get the government approvals, licenses, or other requirements needed to abide by the law.

    5. CDCK may end this agreement and refund any Prepaid Fees.

Liability

  1. Each side’s only legal remedy for Legal Claims covered by Indemnification will be Indemnification.

  2. Customer’s only legal remedies for failures to meet Service-Level Agreement will be credits under Give Credits for Low Uptime and refunds under Refund Fees for Low Uptime.

  3. Customer’s only legal remedy for failure to meet Responsiveness will be a refund under Refund Fees for Unresponsive Support.

  4. Customer’s only legal remedy for changes to Software Features in the Latest Version of Discourse will be a refund under Refund Prepaid Fees for Removed Features.

Valid Excuses

Neither side will be liable for any failure or delay in meeting any service level or other obligation under this agreement caused by a Disaster, failure of the other side or its personnel to meet their obligations under this agreement, or actions done or delayed on written request of the other side.

Only Express Warranties

Except for its obligations in CDCK’s Obligations, CDCK provides Customer’s Forum “as is”, without any warranty at all. CDCK disclaims any warranties the law might otherwise imply, like warranties of merchantability, fitness for any particular purpose, title, or noninfringement.

Limited Damages

(No Heading)

Subject to Damages Limit Exceptions, neither side’s total liability for breach of this agreement will exceed the amount of Fees CDCK received from Customer during the twelve months before the first claim is filed. This limit applies even if the side liable is advised that the other may suffer damages, and even if Customer paid no fees at all.

(No Heading)

Neither side will be liable for breach-of-contract damages they could not have reasonably foreseen when entering into this agreement.

Damages Limit Exceptions

Limited Damages does not limit damages for breach of:

  1. Pay Fees

  2. Keep Customer Data Confidential

  3. Follow Rules About Use

  4. Enforce Rules About Use

  5. Provide Assurance about Patents

  6. Indemnify Customer

  7. Indemnify CDCK

Process

Indemnification Process

Both sides agree that to receive Indemnification under this agreement, they must give Notice of any covered Legal Claims quickly, allow the other side to control investigation, defense, and settlement, and cooperate with those efforts. Both sides agree that if they fail to give Notice of any covered Legal Claims quickly, Indemnification will not cover amounts that could have been defended against or mitigated if Notice had been given quickly. Both sides agree that if they take control of the defense and settlement of any Legal Claims covered by Indemnification, they will not agree to any settlements that admit fault or impose obligations on the other side without their Permission.

Notice Process

Both sides agree that to give Notice under this agreement, the side giving Notice must send by e-mail to the address the recipient gave with its signature, or to a different address given later for Notice going forward. If either side finds that e-mail can’t be delivered to the e-mail address given, it may give Notice by registered mail to the address on file for the recipient with the state under whose laws it is organized.

General Contract Terms

Governing Law

The law of the state of California will govern this agreement.

Government Procurement

Discourse and Discourse Plugins are commercial computer software, and the Documentation is commercial computer software documentation. All were developed exclusively at private expense. If Customer’s procurement is subject to Federal Acquisition Regulation 12.212 or Defense Federal Acquisition Regulation Supplement 227.7202, Customer’s rights will be only those stated in this agreement.

Whole Agreement

Both sides intend the Statement of Work and these terms as the final, complete, and only expression of their terms about use of Customer’s Forum and related support services. However, this agreement does not affect the terms of any separate nondisclosure or confidentiality agreement CDCK and Customer may have.

Enforcement

Only CDCK and Customer may enforce this agreement.

Assignment

Each side may assign all its rights, licenses, and obligations under this agreement, as a whole, to a new legal entity created to change its jurisdiction or legal form of organization, or to an entity that acquires substantially all of its assets or enough securities to control its management. Otherwise, each side needs Permission to assign any right or license under this agreement. Attempts to assign against these terms will have no legal effect.

Lawsuits

Forum

Both sides agree to bring any Lawsuit in San Francisco Courts.

Exclusive Jurisdiction

Both sides consent to the exclusive jurisdiction of San Francisco Courts. Both sides may enforce judgments from San Francisco Courts in other jurisdictions.

Inconvenient Forum Waiver

Both sides waive any objection to venue for any Lawsuit in San Francisco Courts and any claim that the other brought any Lawsuit in San Francisco Courts in an inconvenient forum.

Definitions

  1. Access Credentials means a user name and password, license key, or other secret that affords use of Customer’s Forum or systems providing Customer’s Forum.

  2. Account Dashboard means the account management section of the administration page of Customer’s Forum.

  3. Billing Period means a successive, month-long period. The first Billing Period starts on the date of this agreement. The plural is Billing Periods.

  4. Business Day means a day other than a Saturday, Sunday, or a day when commercial banks in New York, New York typically stay closed. The plural is Business Days.

  5. Customer Data means data that:

    1. Users furnish to Customer’s Forum, such as by entering it or configuring Customer’s Forum to gather or receive it, if doing so doesn’t breach this agreement

    2. Customer’s Forum collects about Users and how they use Customer’s Forum

  6. Customer Personnel means Customer’s employees and each Customer subsidiary’s employees, as well as independent contractors providing services to Customer.

  7. Data Compromise means malicious technical compromise or unauthorized disclosure of Customer Data.

  8. Disaster means:

    1. fire, flood, earthquake, pandemic, and other natural disasters

    2. declared and undeclared wars, acts of terrorism, sabotage, riots, civil disorders, rebellions, and revolutions

    3. extraordinary malfunction of Internet infrastructure, data centers, or communications utilities

    4. malicious technical attack on systems providing Customer’s Forum

    5. government actions taken in response to any of these causes

  9. Fees means all fees agreed in the Statement of Work.

  10. Feature Set means all Software Features described in the Documentation on the date of this agreement.

  11. Indemnification means indemnifying and holding harmless for all liability, expenses, damages, and costs.

  12. Infringement or Noncompliance Claim means a court order against use of Discourse based on a claim that it infringes any Intellectual Property Right, or breaks any law, or a threat of that kind of claim that CDCK believes credible.

  13. Intellectual Property Right means any patent, copyright, trademark, or trade secret right, or any other legal right typically referred to as an intellectual property right.

  14. Latest Version of Discourse means the most recent version of Discourse that CDCK publicly promotes for use in production, rather than test or development, systems.

  15. Lawsuit means a lawsuit brought by one side against the other, related to this agreement or Customer’s Forum.

  16. Legal Claims means claims, demands, lawsuits, and other legal actions.

  17. Notice means a written communication from one side to the other per Notice Process.

  18. Permission means prior Notice of consent.

  19. Permitted Use of Customer’s Forum means Customer’s use of Customer’s Forum, other than Use of Customer’s Forum at Customer’s Own Risk.

  20. Prepaid Fees means Fees Customer prepaid for Billing Periods yet to begin.

  21. San Francisco Courts means the California state courts sitting in San Francisco or the United States District Court for the Northern District of California.

  22. Software Features means functions of Discourse and Discourse Plugins described in the Documentation.

  23. Special Data Regulations means laws and regulations that impose special requirements on the collection, storage, processing, or transmission of particular kinds of data about individuals. The Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act, Children’s Online Privacy Protection Act, and Fair Credit Reporting Act are some Special Data Regulations. Laws that apply to data just because they may identify specific individuals are not Special Data Regulations.

  24. Use of Customer’s Forum at Customer’s Own Risk means:

    1. use of Customer’s Forum in breach of this agreement

    2. use of Customer’s Forum with changes, additions, or in combination with other software, systems, or data, in a way that infringes someone else’s Intellectual Property Right or breaks the law, if use of Customer’s Forum as provided, as described by the Documentation, would not

    3. unauthorized use of Customer’s Forum with Customer Access Credentials

  25. Uptime means the percentage of wall-clock time during a Billing Period when Users can read, post to, and search Customer’s Forum, subject to Valid Excuses.

  26. Use Limits means numeric limits on technical aspects of Customer’s Forum, such as amount of data storage space and visitors per Billing Period.

  27. Users means users of Customer’s Forum, both Customer Personnel and others.