END USER LICENSE AGREEMENT
THIS AGREEMENT GOVERNS CUSTOMER’S USE, INCLUDING ANY BETA OR FREE TRIAL USE, OF IGNEOUS’ CLOUD-BASED ENTERPRISE DATA CENTER MANAGEMENT SOLUTION PROVIDED AS A SERVICE (THE “SERVICES”), INCLUDING ANY IGNEOUS HARDWARE (“HARDWARE”), ANY SOFTWARE THAT IS INCLUDED IN THE HARDWARE AND ANY STANDALONE SOFTWARE THAT IS PROVIDED WITHOUT HARDWARE FOR USE ON CUSTOMER’S HARDWARE INCLUDING VIRTUAL MACHINE SOFTWARE OR ENDPOINT SOLUTIONS (COLLECTIVELY, “SOFTWARE”). THE HARDWARE WITH THE SOFTWARE INSTALLED SHALL BE REFERRED TO HEREIN AS THE “SYSTEM”. THE SERVICES, HARDWARE AND SOFTWARE ARE ALL COLLECTIVELY REFERRED TO HEREIN AS “PRODUCTS”.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM "YOU" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS.
1. LICENSE GRANT AND RESTRICTIONS
1.1 Software License Grant. Subject to the terms and conditions of this Agreement, Igneous grants to Customer a non-exclusive license to use the Software in accordance with its published specifications. The Software is solely for Customer’s internal business purposes unless otherwise agreed to with Igneous in a separate written agreement. All other rights in the Software are expressly reserved by Igneous. The Products may incorporate certain third-party software, which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are available from Igneous upon written request and are made a part of and incorporated by reference into this license. The protections given to Igneous under this license also apply to the suppliers of this third-party software, who are intended third-party beneficiaries of this Agreement. Customer agrees and acknowledges that its purchases hereunder are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Igneous regarding future functionality or features.
1.2 Limited Right to Use Products. Customer will (a) be responsible for its users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of all Metrics (as defined in Section 7.2), (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Products, and notify Igneous promptly of any such unauthorized access or use, (d) use the Products only in accordance with the documentation and applicable laws and government regulations, and (e) comply with the terms of service of any third-party applications with which You use any Products.
1.3 License Restrictions. Customer shall maintain the Products in strict confidence and shall not: (a) except with Igneous’ prior written consent, sell, resell, distribute, transfer, publish, disclose, lend, or sublicense the Products, or make the functionality of the Products available to any other party (excluding contractors or other third party providing IT services to Customer) through any means, including, without, limitation; (b) modify, translate or create derivative works based on the Software, in whole or in part, or permit or authorize a third party to do so; (c) disassemble, decompile, reverse compile, reverse engineer or otherwise attempt to derive the source code of the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by applicable law in the jurisdiction of use notwithstanding this prohibition; or (d) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein.
1.4 Affiliates. If Customer purchases the Product for use by any Customer Affiliate (defined below), Customer shall: (a) provide each such Customer Affiliate with a copy of this Agreement; (b) ensure that each such Customer Affiliate complies with the terms and conditions therein; and (c) be responsible for any breach of these terms and conditions by any such Customer Affiliate. For purposes of this Agreement, “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with Customer or Igneous, as applicable, where “Control” means ownership, directly or indirectly, of 50% or more of the voting interest of Customer or Igneous, as applicable.
2. OWNERSHIP. The Software and Services are licensed, not sold. Igneous and its suppliers, as applicable, retain all right, title, interest and ownership of (a) the Software and Services, including copyrights, patents, trade secret rights, trademarks and any other intellectual property rights therein; (b) all improvements, enhancements or modifications thereto, (c) any software, applications, inventions or other technology developed in connection with support; (d) intellectual property rights related to any of the foregoing. Customer shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Products or related documentation as delivered to Customer. To the extent Customer provides any suggestions, enhancement requests, recommendations or comments related to the Products (collectively, “Feedback”) to Igneous or its authorized third party agent, Igneous shall have the right to retain and use any such Feedback in current or future products or services so long as it does not disclose any Confidential Information (as defined in Section 7) relating to Customer’s products, services or Product use case in doing so, without your approval or further compensation to Customer.
3. TERM; TERMINATION; AND EFFECT OF TERMINATION. This Agreement is effective until terminated. Subject to earlier termination as provided below, this Agreement is for the Initial Subscription Term as specified in the applicable purchase order and shall be automatically renewed for additional periods of the same duration as the Initial Subscription Term (collectively, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current term. In addition to any other remedies it may have, either party may also terminate this Agreement upon 30 days’ notice (or upon 10 days’ notice in the case of nonpayment), if the other party materially breaches, and fails to cure during such notice period, any of the terms or conditions of this Agreement. Customer will pay in full for the Products up to and including the last day on which access to the Software is provided. Upon any termination, Customer shall cease to use any Software, and access to the Software will be shut off except for read/write access of Customer Data stored on the Product. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
4. WARRANTY AND DISCLAIMERS.
Igneous shall use reasonable efforts consistent with prevailing industry standards to maintain the Products in a manner which minimizes errors and interruptions in the Products and shall perform any implementation services in a professional and workmanlike manner. Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Igneous or by third-party providers, or because of other causes beyond Igneous’ reasonable control, but Igneous shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, IGNEOUS DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PRODUCTS AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND IGNEOUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL IGNEOUS OR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, BUSINESS OR PROFITS, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS, SERVICES OR OTHER GOODS), ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT IGNEOUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS; AND (B) IN NO EVENT SHALL IGNEOUS’ TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL PAYMENTS ACTUALLY MADE TO IGNEOUS FOR THE PRODUCTS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY ARISING FROM DEATH OR BODILY INJURY, OR TO CLAIMS UNDER SECTION 1.3 (LICENSE RESTRICTIONS) OR SECTION 6 (INDEMNIFICATION) OR ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. Customer agrees that the foregoing limitations of liability constitute a material inducement for Igneous to enter into this Agreement and that the purchase price and/or fees charged to Customer would be substantially higher without such limitations.
6.1 Indemnification and Procedure. Igneous will defend, at its expense, any third-party action or suit brought against Customer alleging that any Igneous Product provided to Customer hereunder infringes or misappropriates the third party’s patent, copyright, trademark, or trade secret (a “Claim”), and Igneous will pay any damages awarded in final judgment against Customer or agreed to in settlement by Igneous that are attributable to any such Claim; provided that Customer: (i) promptly notifies Igneous in writing of the Claim; (ii) gives Igneous sole control of the defense and settlement of the Claim; and (iii) gives Igneous, at Igneous’ expense, all information and assistance reasonably requested for the defense and settlement of the Claim. Igneous will not be bound by any settlement or compromise that Customer enters into without Igneous’ prior written consent.
6.2 Remedy. If the Product becomes, or in Igneous’ opinion is likely to become, the subject of a Claim, then Igneous may, at its sole option and expense: (i) procure for Customer the right to continue using the Product; (ii) replace or modify the Product to avoid the Claim; or (iii) if options (i) and (ii) cannot be accomplished despite Igneous’ reasonable efforts, then Igneous may accept return of the Product from Customer and grant Customer credit for the price of the Product as depreciated on a straight-line five (5) year basis, commencing on the date of receipt by Customer of such Product.
6.3 Exceptions. Igneous’ obligations under this section shall not apply to the extent any Claim results from or is based on (a) modifications to the Product made by a party other than Igneous or its designee; (b) the combination, operation, or use of the Product with hardware or software not supplied by Igneous, if a Claim would not have occurred but for such combination, operation or use; (c) failure to use the most recent version or release of the Product; (d) Igneous’ compliance with Customer's explicit or written designs, specifications or instructions; or (e) use of the Product that is not in accordance with Igneous’ published specifications.
THE FOREGOING TERMS STATE IGNEOUS’ SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
7. CONFIDENTIALITY; CUSTOMER DATA.
7.1 Confidentiality. During the term of this Agreement, each party agrees that (a) Confidential Information (as defined below) will be used only in furtherance of this Agreement; (b) it will use the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; and (c) Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. “Confidential Information” means any information designated as confidential orally or in writing by either party, or any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. This Agreement imposes no obligation with respect to information which: (1) is a part of or enters into the public domain; (2) was already in the receiving party’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; (4) is independently developed without reference to the Confidential Information of the disclosing party.
7.2 Customer Metrics. Customer agrees to allow Igneous to collect usage information (“Metrics”) from its Products in order to monitor and perform issue mitigation with respect to the Products. Metrics will be collected electronically and automatically. Metrics include, but are not limited to, the amount of data scanned and moved, performance characteristics, and administrative user actions. Igneous utilizes industry standard practices and policies to maintain administrative, physical and technical safeguards for the protection and security of all Metrics. Customer is hereby notified and acknowledges that the Products may include interaction and communication with facilities hosted outside of the country where Customer purchased or utilizes the Products. Igneous is not a data processor or data collector, and the inclusion of any personally identifying or sensitive data within the Metrics is solely incidental to the provision of the Software. Submission of any Customer data (“Customer Data”) to Igneous shall be at Customer’s sole discretion and at its own risk, and Igneous assumes no responsibility or liability for Customer’s decision to do so. Customer Data sent to Igneous may be stored by Igneous. Customer further acknowledges that Igneous may anonymize such Metrics to use for statistical purposes and share samples of such anonymized Metrics with other third-party security-related researchers, vendors and customers.
7.3 Data Exportation. Customer agrees and acknowledges that (a) subject to Customer’s right to inspect any such data and to terminate Igneous’ rights hereunder with prior written notice to Igneous, Telemetry Data (as defined below) may be exported from the Hardware to the Igneous cloud in order to ensure proper operation of the on-premises Hardware; and (b) it will ensure that such Telemetry Data is able to be transmitted to Igneous in a timely manner as required to maintain the uptime of the Hardware. “Telemetry Data” shall mean machine data generated by the Product, which is used by Igneous to manage the condition and health of the Product, or to debug the Product, and specifically excludes any Customer Data and Customer metadata that is written to the Product.
8.1 Governing Law. This Agreement shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
8.2 Compliance with Laws; Export Control. Customer shall be solely responsible for its compliance with, and agrees to comply with, all applicable laws in connection with its use of the Product. Customer further agrees that it will not engage in any illegal activity in any relevant jurisdiction, and acknowledges that Igneous reserves the right to notify its customers or appropriate law enforcement in the event of such illegal activity. Customer agrees to comply fully with the U.S. Export Administration Regulations, and any other export laws, restrictions, and regulations to ensure that the Product and any technical data related thereto is not exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by such laws and regulations.
8.3 Force Majeure. Igneous shall not be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Igneous employees or agents), Internet service provider failures or delays, or denial of service attacks, unplanned system downtime, or any other cause beyond Igneous’ reasonable control.
8.4 Cumulative Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies will be without prejudice to any other remedies under this Agreement or otherwise.
8.5 Notices. All notices shall be in writing and delivered by overnight delivery service or by certified mail sent to the address published on the respective parties’ (attention: Legal Department) or by electronic mail, and in each instance will be deemed given upon receipt.
8.6 Waiver and Severability. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
8.7 Modification to Terms; Entire Agreement. To the maximum extent permitted and enforceable under applicable law, Igneous reserves the right to modify the terms and conditions of this Agreement at any time by written notice to Customer. If Customer does not consent to any such changes, Customer must notify Igneous in writing within thirty (30) days after receipt of notice of the change, in which case Customer shall be deemed to have terminated this Agreement effective as of the date of such notice and shall be entitled to a pro-rated refund of any prepaid Fees corresponding to the unused portion of the then-current term. Continued use of the Products after such 30-day period shall constitute Customer’s consent to such changes. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings and communications between the parties with respect to the subject matter hereof. Any terms or conditions contained in Customer’s purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Igneous and will be deemed null.
8.8 U.S. Government Customers. This section applies to United States Government Customers only and does not apply to any other customers. The Software and its documentation are “commercial computer software” and “commercial computer software documentation,” respectively; as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software and its documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software and its documentation shall be as specified in this Agreement.
8.9 Open Source Software. The Products may contain or be provided with components subject to the terms and conditions of open source software licenses (“Open Source Software”). A list of Open Source Software can be found at http://igneous.io/thirdparty-software.html. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software; however, the license to the Software in Section 1.1 includes the right to use the Open Source Software included in the Software in the same manner and to the same extent as the Software.
EXHIBIT A Support Terms
1. If the Software does not function substantially in accordance with its published documentation, Igneous must, at its option, either (i) modify the Software to conform to the documentation; or (ii) provide a commercially reasonable workaround solution. If neither of these options is commercially feasible, either party may terminate the relevant purchase order under this Agreement, in which case Igneous shall refund to Customer all fees pre-paid, if any, to Igneous under the relevant purchase order for any unused time remaining on its Term.
2. Igneous will provide maintenance/repair services on any Igneous Hardware sold to the Customer at least annually. If the hardware component of any Hardware fails, Igneous will repair or replace (with a new or reconditioned replacement) the appliance or component at no cost to Customer. Since Igneous is building a zero-touch architecture for the Software, provided that Customer’s benefit and enjoyment of the Software are not materially adversely impacted, Customer acknowledges that component failures shall not be treated by Igneous as requiring immediate repair and/or replacement and shall be subject to Igneous’ commercially reasonable discretion as to the timing and manner of repair and/or replacement.
3. Notwithstanding the foregoing, Igneous has no obligations under this Exhibit A: (a) to the extent that the Hardware has been modified or serviced by Customer or any third party, unless the modification has been approved in writing by Igneous, or where Customer is not in compliance with Section 2 of the main body of the Agreement; (b) to the extent that the Hardware has been subjected to abnormal physical or electrical stress, misuse, negligence or accident; (c) for a version of the Software that has passed its end-of-life date per Igneous’ published end-of-life policy made available to Customer; or (d) for problems with the Hardware caused by any third party software or hardware, by accidental damage or by other matters beyond Igneous’ reasonable control.
4. Igneous regularly updates the Software according to a schedule which shall apply to, and be for the benefit of, all Igneous customers. By subscribing to the Service, Customer agrees that all such Software updates will occur according to a schedule to be determined by Igneous in its commercially reasonable discretion, provided that Customer’s benefit and enjoyment of the Software are not materially adversely impacted. The changes may also mean that Customer needs to upgrade its software or hardware in order to make efficient use of the Software. Igneous will provide Customer with advance notification in this case.